Eleanor Finch
The idea of a Living Constitution is a vision of a constitution whose boundaries are dynamic and congruent with the needs of society as it changes. This concept has been embraced by some liberal theorists, while others, like Justice Scalia, have rejected it. Scalia, an originalist, believes that the Constitution is a static document that should be interpreted according to the original intent of its framers. He argues that a living constitution would render the document meaningless and that it is the role of the democratic process to address issues not covered by the Constitution. On the other hand, supporters of a living constitution argue that it is a true originalist philosophy, as the meaning of certain principles, such as liberty, has remained constant, but their application has expanded to meet new conditions. This view was expressed by Justice George Sutherland in 1926. Supreme Court Justice Stephen Breyer also supports the idea of a living constitution, acknowledging the increasing globalization and diversity of the world and the need for the Constitution to adapt to these changes.
| Characteristics | Values |
|---|---|
| Dynamic boundaries that are congruent with the changing needs of society | The nature of a "Living Constitution" |
| Interpret the Constitution according to the "common sense" meaning | Justice Antonin Scalia's view |
| Originalist philosophy | Supporters' view |
| Judicial activism | Synonymous with a "Living Constitution" |
| Not a living document | Justice Scalia's view |
| Evolving document | Supreme Court Justice Stephen Breyer's view |
| Interpret the Constitution reasonably | Justice Scalia's view |
| Not a lever for Congress | A Reddit user's view |
| Emphasizes the rights of the individual over societal morality | A Reddit user's view |
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What You'll Learn
- The Living Constitution is a vision of a document that evolves with societal needs
- Critics of the Living Constitution philosophy include Justices Scalia and Rehnquist
- Originalists argue that the Constitution should be interpreted as it was originally intended
- The Living Constitution is sometimes associated with judicial activism
- Supporters of the Living Constitution argue that it is the true originalist philosophy
The Living Constitution is a vision of a document that evolves with societal needs
The concept of a "Living Constitution" is a vision of a document that is dynamic and adapts to the changing needs of society. It is a constitution that evolves and changes over time without the need for formal amendments. While some critics view this as “judicial activism”, with judges accused of resolving cases based on their political convictions, others see it as a necessary interpretation of a document to suit the needs of a modern society.
Supporters of the Living Constitution argue that it is the true originalist philosophy, where the meaning of a word like "liberty" has not changed, but its application has expanded to meet new conditions. For instance, Supreme Court Justice Neil Gorsuch, considered a conservative, interpreted the Civil Rights Act using the ordinary meaning of the words and found that it protects LGBTQ individuals from discrimination. This interpretation of the law is an example of how the Living Constitution can be applied without formal amendments.
Critics of the Living Constitution, such as Justice Scalia, argue that it is not a living organism and is instead a static legal document that should be interpreted as it was originally intended. He states that the Constitution “says some things and doesn't say others”, implying that it is up to the democratic process to provide answers that are not explicitly outlined in the document. Justice Scalia also warns that allowing the court to find new rights, such as the right to abortion, can stifle debate and prevent states from passing laws that reflect the wishes of their residents.
The debate surrounding the Living Constitution is a complex one, with valid arguments on both sides. On the one hand, a static constitution that is difficult to amend may not be able to keep up with the rapidly changing needs of a diverse and evolving society. On the other hand, allowing the interpretation of the constitution to change too freely may lead to inconsistency and instability in the law. Ultimately, the Living Constitution represents a vision of a document that is flexible and adaptable, ensuring that the law remains relevant and effective in a changing world.
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Critics of the Living Constitution philosophy include Justices Scalia and Rehnquist
Justice Scalia further argued that the philosophy of a living Constitution suggests that "rights that never used to exist now do, because the court says so", which stifles debate. He provided the example of abortion, where once it is read that "no state can prohibit abortion", there is no further democratic debate on the issue, and individual states are prevented from passing laws that reflect the wishes of their residents.
Justice Rehnquist, similarly to Scalia, believed that the Living Constitution has a "teasing imprecision that makes it a coat of many colors". He also agreed with the notion that the Living Constitution is synonymous with judicial activism, a phrase that is generally used to accuse judges of resolving cases based on their own political convictions or preferences.
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Originalists argue that the Constitution should be interpreted as it was originally intended
Originalism is a legal theory that bases the interpretation of the Constitution on the original understanding of its meaning at the time of its adoption. Originalists believe that the Constitution should be interpreted as it was originally intended, with the original public meaning it had when it became law. This original public meaning can be discerned from dictionaries, grammar books, legal documents, legal events, and public debates from the time.
Originalists argue that the Constitution is a democratically adopted legal document that does not change. They believe that the document is "a rock to which the republic is anchored". Originalists believe that judges should not impose their own personal values on the Constitution and that the law should be followed as it is written. Originalism is often contrasted with Living Constitutionalism, which asserts that the Constitution should evolve and be interpreted in the context of current times. Originalists argue that the Constitution should only be changed through formal amendments or democratic modifications of laws through the legislature.
Originalism has gained prominence in the United States Supreme Court, with a majority of justices either self-described originalists or leaning towards originalism. These include Justices Antonin Scalia, Amy Coney Barrett, Clarence Thomas, and Neil Gorsuch. Justice Scalia, a prominent originalist, stated that he interprets the Constitution as it was understood at the time of its ratification. He rejected the idea of a living Constitution, arguing that it allows the court to find rights that stifle debate and prevent states from passing laws reflecting their residents' wishes.
Critics of originalism argue that it ignores the fact that the Constitution contains vague and open-ended principles, such as "due process" and "equal protection", which were meant to evolve with changing values and circumstances. They also argue that originalism undermines the accomplishment of the Constitution's purposes and that it is not a theory of constitutional interpretation but a rallying cry for conservatives. Some critics, like Justice Kagan, argue that certain aspects of the Constitution were intentionally left vague to allow for future generations to interpret them.
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The Living Constitution is sometimes associated with judicial activism
The concept of a "Living Constitution" is often associated with judicial activism, a phrase that accuses judges of resolving cases based on their political convictions rather than the original intent of the Constitution. This view is particularly associated with conservative critics such as Justice Scalia, who characterized the idea of a living constitution as inherently disregarding constitutional language. Scalia, an originalist, argued that the Constitution is a democratically adopted legal document that does not change and acts as an anchor for the republic. He rejected the idea that rights that did not previously exist can be created by the court, as in the case of Roe v. Wade, where the Supreme Court held that the Constitution has an implicit "right to privacy" encompassing a woman's right to abortion.
However, supporters of the Living Constitution argue that it is the true originalist philosophy, and that the difference between judicial philosophies lies not in the meaning of the text but in its application. They contend that an evolving interpretation is sometimes necessary as society's needs change, and that the Constitution should be read contemporaneously rather than historically. This view is supported by legal scholars who argue that judicial activism can provide a check on the majority, preventing the oppression of minorities through the elective powers of the majority.
The modern trend of judicial activism is often traced back to the 1973 case of State of Uttar Pradesh v. Raj Narain, where the Allahabad High Court rejected the candidature of Indira Gandhi. Judicial activism has also been observed in other countries, such as India, where judges have ruled on issues such as pollution and corruption. In the United States, judicial activism has been characterized by rulings such as Brown v. Board of Education, which ordered the desegregation of public schools, and Citizens United v. Federal Election Commission, which struck down limitations on corporate political spending as unconstitutional restrictions on free speech.
While critics of the Living Constitution view it as a form of judicial activism, supporters argue that it is a necessary interpretation of the Constitution to address the complex and changing nature of society. The Supreme Court's decisions and the traditions and understandings that have developed outside the courts form an indispensable part of the constitution as it operates in practice. The Living Constitution represents a dynamic vision that adapts to new circumstances without formal amendments, ensuring that the document remains relevant and responsive to the needs of a diverse and evolving society.
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Supporters of the Living Constitution argue that it is the true originalist philosophy
The idea of a "Living Constitution" is often associated with "judicial activism", a phrase that is used to accuse judges of resolving cases based on their political convictions or preferences. The concept of a Living Constitution is not a specific theory of construction but a vision of a Constitution that is dynamic and adapts to the changing needs of society.
Originalists, on the other hand, believe that the constitutional text ought to be given the original public meaning that it would have had at the time it became law. They seek an application consistent with the views at the time of ratification. According to originalists like Justice Scalia, the Constitution is a democratically adopted legal document that does not change and acts as a "rock to which the republic is anchored". He rejected the idea of a Living Constitution, stating that it is not an "empty bottle to be filled up by each generation".
The debate between originalism and living constitutionalism is a complex one, with proponents of both sides presenting valid arguments. Ultimately, the interpretation of the Constitution is a dynamic and evolving process, influenced by the Supreme Court's decisions, precedents, traditions, and understandings that develop outside the courts.
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Frequently asked questions
A living constitution is a constitution that evolves, changes over time, and adapts to new circumstances, without being formally amended.
Justice Stephen Breyer has expressed support for a living constitution.
Justice Antonin Scalia was an originalist and believed that the constitution is not a living document. He believed that the constitution is a legal document that does not change and should be interpreted according to the "common sense" meaning and definition of the document's words at the time it was adopted. Other justices who are considered originalists include Neil Gorsuch and Clarence Thomas.
Critics of the living constitution idea argue that it is synonymous with "judicial activism", suggesting that judges resolve cases based on their own political convictions or preferences. Justice Scalia also warned that a living constitution would destroy the constitution by rendering it useless and giving it whatever meaning one wants.
