Simone Lawson
The US Constitution is a document that was adopted over 200 years ago, and there are differing views on whether it should be considered a living, breathing document. Liberals and progressives tend to support the idea of a living constitution, believing that it should evolve with the times and be interpreted flexibly by Supreme Court justices. On the other hand, conservatives generally oppose this view, arguing for originalism and the original intent of the Constitution. They believe that the Constitution should not be subject to creative interpretations and that it serves as a rock-solid foundation for the nation. The debate centres around questions of judicial activism, democracy, and the role of the Constitution in a changing society.
| Characteristics | Values |
|---|---|
| Viewpoint | The Living Constitution, or judicial pragmatism |
| Proponents | Liberals and progressives |
| Professors Michael Kammen and Bruce Ackerman | |
| Supporters refer to themselves as organicists | |
| View | The Constitution holds a dynamic meaning even if the document is not formally amended |
| The Constitution develops alongside society's needs and provides a more malleable tool for governments | |
| The Constitution should evolve with the times | |
| Supreme Court justices should be flexible in interpreting the Constitution and adapting 18th-century language to 21st-century applications | |
| The Constitution should reflect the preferences of the current political majority | |
| Opponents | Conservatives |
| View | "Originalism" |
| The Constitution should not be rewritten each year by the unelected justices of the Supreme Court | |
| The Constitution should not be interpreted in light of modern needs and problems | |
| The Constitution should be interpreted in accordance with its original meaning or intent | |
| The Constitution should be changed by an amendment process | |
| The Constitution is supposed to protect us from the majority |
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What You'll Learn
Liberals vs. conservatives
Liberals and conservatives in the United States have differing views on whether the US Constitution is a living, breathing document.
Liberals tend to believe that the Constitution is a living, breathing document that should evolve with the times. They support flexible interpretation and adaptation of the 18th-century language to modern applications. This perspective, known as "loose construction", favours expanded government powers. Liberals argue that a dynamic interpretation ensures the Constitution remains relevant and effective in a society that has changed drastically since its adoption. They see the Constitution as a malleable tool to address contemporary issues and believe that the framers intended for it to be interpreted broadly.
Conservatives, on the other hand, generally oppose the idea of a living Constitution and favour "strict construction," which limits government powers. They believe in upholding the original intent of the Constitution and are cautious about creative interpretations by Supreme Court justices. Conservatives argue that the Constitution should not be subject to the whims of the current political majority but should protect political minorities. They view the Constitution as a rock-solid foundation that provides stability and safeguards fundamental principles. According to this perspective, if changes are necessary, they should be made through a formal amendment process rather than judicial interpretation.
The debate between these two perspectives is often framed as "judicial activism" versus "originalism." Liberals argue that the Constitution is silent on the matter of interpretation, leaving room for flexibility. Conservatives, meanwhile, emphasize the importance of adhering to the original understanding of the Constitution's provisions.
The British constitution, in contrast to the US Constitution, is considered a living constitution due to its reliance on statute law and the influence of its Supreme Court. It can be amended with a simple majority vote, reflecting its dynamic nature.
The question of whether the US Constitution is a living document remains a subject of contention between liberals and conservatives, each with their own valid arguments and concerns. While liberals emphasize adaptability to ensure the document's relevance, conservatives prioritize stability and the protection of minority rights.
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Judicial activism
The US Constitution is a subject of debate between two conflicting viewpoints: one that sees it as a "living and breathing document" and another that views it as a static text. Those who subscribe to the idea of the Constitution as a living document believe that it should evolve with the times and be open to interpretation to address modern needs and problems. This perspective aligns with the liberal and progressive stance, advocating for flexibility in interpretation and adaptation of 18th-century language to 21st-century contexts.
In contrast, conservatives generally oppose this notion, arguing for "strict construction" and adherence to the original intent of the Constitution. They criticise judicial activism, accusing judges of basing their rulings on personal or political beliefs rather than existing laws. Judicial activism, in this context, refers to judges who interpret the Constitution as a living document and are willing to overturn laws, precedent, or interpret the Constitution in a way that goes against a preferred interpretation.
David A. Strauss narrowly defines judicial activism as involving one or more of the following actions:
- Overturning laws as unconstitutional
- Overturning judicial precedent
- Ruling against a preferred interpretation of the Constitution
The concept of judicial activism is often associated with the idea of a living constitution, where judges are accused of "reading rights" into the text that are not explicitly stated. For instance, in Roe v. Wade, the US Supreme Court inferred a "right to privacy" from the Constitution, which was used to justify a woman's right to abortion.
However, proponents of the living constitution argue that it strengthens democracy and allows for addressing issues not mentioned or anticipated by the Constitution's authors. They assert that the framers of the Constitution wrote it in broad and flexible terms, intending for it to be a dynamic document.
While the debate continues, it is essential to recognise that the interpretation of the Constitution as a living document or the practice of judicial activism can have far-reaching consequences for the protection of rights, the balance of powers, and the evolution of law in the United States.
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Originalism
One of the key arguments against treating the Constitution as a living, breathing document is the belief that it should protect political minorities from the whims of the current political majority. Originalists assert that if the Constitution is interpreted to reflect modern preferences, it cannot effectively safeguard the rights of those who hold opposing views. This interpretation of the Constitution as a stable and enduring framework is intended to provide stability and protect the rights of all citizens, regardless of their political affiliation.
In conclusion, originalism is a legal theory that seeks to preserve the original intent and meaning of the Constitution, resisting judicial activism and creative interpretation. Originalists argue for a consistent and impartial application of the Constitution, believing that it provides a stable foundation for the nation and protects the rights of all citizens. While critics argue for a living constitution that adapts to the changing needs of society, originalists emphasise the importance of democratic processes for implementing any modifications to the nation's founding document.
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The role of the Supreme Court
Liberals and progressives argue in favour of the Constitution being a living document, evolving with the times and allowing Supreme Court justices to be flexible in their interpretations. They believe that the original 18th-century language should be adapted to 21st-century applications. This view is often associated with “judicial activism” or "judicial pragmatism", where the Constitution is interpreted in light of contemporary society and its needs. Proponents of this perspective argue that the framers of the Constitution, many of whom were lawyers and legal theorists, likely intended for the document to be interpreted with flexibility.
On the other hand, conservatives typically oppose this idea of a living Constitution, instead advocating for "originalism". They believe that the Constitution should be interpreted according to its original intent and that Supreme Court justices should uphold the principle that all laws and policies conform to the letter of the Constitution as it was understood when it was adopted. This view holds that the Constitution is a rock-solid foundation that should not be subject to the whims of the current political majority. Instead, it should protect political minorities and maintain the separation of powers.
The Supreme Court, therefore, plays a critical role in this debate. The appointment of justices to the Supreme Court can effectively lead to a "mini-Constitutional Convention", as each justice brings their own interpretation and understanding of the Constitution. If the Court leans towards a living Constitution perspective, it may contribute to the evolution of constitutional interpretations over time. Conversely, if the Court leans towards originalism, it reinforces the idea that the Constitution is a static document that should not be altered by judicial interpretation.
The Supreme Court's role in interpreting the Constitution is further complicated by the difficulty of the amendment process. While some argue that the Constitution should only be changed through formal amendments, the reality is that amending the Constitution is a challenging and rare occurrence. As a result, the Supreme Court's interpretations and precedents play a significant role in shaping how the Constitution is understood and applied in practice.
In conclusion, the role of the Supreme Court is pivotal in the debate surrounding the nature of the US Constitution. The Court's interpretations and philosophies can either solidify the Constitution as a static, originalist document or contribute to its evolution as a living, breathing text.
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The will of the people
The idea of a "living and breathing" US Constitution is a highly contested topic, with proponents and critics on both sides presenting valid arguments. The will of the people, in this context, refers to the interpretation and application of the Constitution in a way that reflects the preferences and needs of the current political majority. This view is supported by liberals and progressives who believe that the Constitution should be a living, breathing document that evolves with the times. They advocate for a flexible interpretation of the Constitution by Supreme Court justices, adapting 18th-century language to 21st-century applications.
Proponents of a living Constitution, often referred to as "organicists," argue that it provides a more malleable tool for governments to address society's changing needs. They contend that the framers of the Constitution intentionally used broad and flexible terms to create a dynamic document. This interpretation allows for the Constitution to develop and transform according to the necessities of the time. Supporters of this view include professors Michael Kammen and Bruce Ackerman.
On the other hand, critics of the living Constitution theory, often associated with conservatives, emphasize "originalism." They believe in upholding the original intent of the Constitution and argue that changing the document to fit the majority's preferences undermines its purpose of protecting political minorities. According to this view, the Constitution serves as a rock-solid foundation, anchoring the republic and safeguarding against the whims of the political majority. U.S. Supreme Court Justice Antonin Scalia, who identified as an "originalist," asserted that the Constitution should not be rewritten by the unelected justices of the Supreme Court.
The debate between these two perspectives is not merely academic but has significant implications for how the Constitution is interpreted and applied in practice. Those who support a living Constitution argue that it is necessary for the document to evolve and adapt to new circumstances without being formally amended. They highlight the impracticality of strictly adhering to an 18th-century worldview and the importance of ensuring that the Constitution does not hinder societal progress.
However, critics of a living Constitution warn that treating the document as subject to change undermines its role as a guarantor of individual rights. They argue that a selectively interpreted Constitution leads to judicial activism, where the rule of law is influenced by the subjective opinions of judges rather than objective standards. This, they believe, results in a dangerous expansion of government power at the expense of individual liberties.
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Frequently asked questions
It means that the US Constitution holds a dynamic meaning and should evolve with the times even if the document is not formally amended.
Liberals and progressives support the idea that the US Constitution is a living, breathing document.
Conservatives oppose the idea that the US Constitution is a living, breathing document.
Supporters want Supreme Court justices to be flexible in interpreting the Constitution and adapting 18th-century language to 21st-century applications.
Opponents want Supreme Court justices to uphold the principle that all laws and policies conform to the letter of the Constitution.
