The Constitution: A Living, Breathing Document?

The idea of a living and breathing constitution is a viewpoint that the U.S. Constitution should be interpreted as a dynamic document that evolves and adapts to new circumstances without being formally amended. Proponents of this view, often liberals and progressives, believe that the Constitution should develop alongside societal needs, providing a more flexible tool for governments. They argue that broad ideals such as liberty and equal protection were included in the Constitution precisely because they are timeless and inherently dynamic. However, opponents, including conservative figures such as Justice Scalia, Marco Rubio, and Justice Clarence Thomas, argue that treating the Constitution as a living document disregards its original intent and suggests that it should not be simply read and applied as written. They emphasize the importance of interpreting the Constitution based on its original meaning to protect political minorities from the whims of the political majority. This debate highlights the fundamental differences in constitutional philosophy between those favoring loose construction and expanded government powers and those advocating for strict construction and limited government intervention.

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The Living Constitution is judicial pragmatism

The idea of a "living constitution" is often associated with the United States Constitution, which, unlike the British constitution, is a single written document. The concept suggests that the US Constitution is a living, breathing document with a dynamic meaning that evolves alongside societal needs, even if the document is not formally amended. This viewpoint is known as judicial pragmatism.

Judicial pragmatists argue that the US Constitution should be interpreted in light of modern needs, problems, and conditions. They believe that interpreting the Constitution in accordance with its original meaning or intent is sometimes unacceptable as a policy matter. For example, the Constitution's broad ideals, such as "liberty" and "equal protection," were included precisely because of their timeless and inherently dynamic nature. Liberty in 1791, for instance, would have been very different from liberty in 1591 or 1991, and giving "liberty" a fixed and static meaning in the name of "originalism" would violate the very theory it purports to uphold.

Proponents of judicial pragmatism, such as professors Michael Kammen and Bruce Ackerman, refer to themselves as organicists. They argue that the Constitution is a living law of the land, transforming according to the necessities of the time and situation. This viewpoint is in direct contrast to originalism, which asserts that the Constitution has a permanent, static meaning that is "baked into the text." Originalists, such as Justice Antonin Scalia, believe that the Constitution is a democratically adopted legal document that does not change and should be interpreted based on its original intent and language.

Opponents of the Living Constitution, such as Justice Scalia, Marco Rubio, and Justice Clarence Thomas, argue that a living and breathing Constitution becomes a dead Constitution in its fundamental purposes. They believe that the protection of the original meaning of the Constitution is the only way to make it truly living and that legislative action, rather than judicial decisions, better represents the will of the people in a constitutional republic. Additionally, they argue that interpreting the Constitution through the lens of evolving societal standards allows judges to rewrite the Constitution in their own constitutional image, usurping the powers of the legislative branch.

In conclusion, the idea of a Living Constitution or judicial pragmatism presents a complex and controversial perspective on constitutional interpretation. While proponents argue for a dynamic and evolving Constitution that adapts to societal needs, opponents emphasize the importance of upholding the original intent and meaning of the document to protect political minorities and maintain the separation of powers. The debate between judicial pragmatism and originalism continues to shape legal discussions and Supreme Court decisions in the United States.

Originalism vs. living constitutionalism

The US Constitution is often referred to as a "living and breathing document". This idea, called "living constitutionalism", suggests that the Constitution should be interpreted in light of modern needs and problems. Living constitutionalists believe that the document's broad ideals, such as "liberty" and "equal protection", were included precisely because of their inherently dynamic nature. They argue that these terms should be interpreted according to evolving societal standards, and that the Constitution should be viewed as a developing document that transforms alongside society's needs.

However, critics of this interpretation argue that the Constitution is not a living document and should not be rewritten to reflect modern values. This view, called "originalism", holds that the Constitution has a permanent, static meaning that is "baked into the text". Originalists believe that the document should be interpreted based on its original language and the intent of its drafters. They argue that giving dynamic terms a fixed and static meaning in the name of "originalism" violates the very theory that it purports to uphold.

One prominent originalist was Justice Antonin Scalia, who described himself as someone who sees the Constitution as a democratically adopted legal document that does not change. He argued that the Constitution is "that rock to which the republic is anchored" and that it is not an "empty bottle to be filled up by each generation". Scalia believed that interpreting the Constitution as a living document would stifle debate and prevent individual states from passing laws that reflect the wishes of their residents.

Another notable figure in the originalism vs. living constitutionalism debate is Senator Marco Rubio. During a Republican debate in 2016, Rubio was asked why the Constitution should not be interpreted in light of modern needs and problems. In response, he emphasised the basic purpose of the Constitution, which is to protect political minorities from the whims of the political majority. Rubio's answer reflected the belief that a living Constitution cannot systematically protect political minorities, as it would reflect the preferences of the current political majority.

The debate between originalism and living constitutionalism remains a significant topic of discussion in legal and political circles, with supporters of both sides presenting compelling arguments for their respective interpretations of the US Constitution.

The dangers of a living constitution

The concept of a "living constitution" is the viewpoint that a constitution holds a dynamic meaning and evolves alongside society's needs, even if the document is not formally amended. The idea is often associated with the belief that contemporary society should be considered when interpreting the constitution. While some proponents of this idea refer to themselves as "organicists" or "pragmatists", others simply believe that the constitution should be interpreted in light of modern needs and problems.

However, there are several dangers associated with the idea of a living constitution. Firstly, it undermines the original intent of the constitution, which was created with specific principles and values in mind. James Madison, the principal author of the Constitution, argued for original intent, stating that interpreting the Constitution based on evolving language could lead to instability and inconsistency in the exercise of its powers.

Secondly, a living constitution can lead to judicial activism, where judges interpret and change the meaning of the constitution to suit their own ideological ends, rather than following the will of the people in a constitutional republic. This was echoed by Justice Scalia, who stated that interpreting the constitution as a living document would stifle debate and prevent individual states from passing laws that reflect the wishes of their residents.

Additionally, the idea of a living constitution assumes that the majority of people interpret it in the same way, which is often not the case. As a result, a living constitution may fail to protect political minorities from the whims of the political majority, which is one of the fundamental purposes of the constitution.

Furthermore, a living constitution can lead to politicized interpretations, institutional gridlock, and targeted rollbacks, testing the limits of the document's adaptability. Extreme political polarization has also made constitutional amendments difficult, even when there is widespread public support for change.

In conclusion, while the idea of a living constitution may seem appealing in a constantly evolving society, it presents several dangers, including undermining the original intent, judicial activism, failure to protect minorities, and politicized interpretations. These dangers highlight the importance of adhering to the established amendment processes to ensure that any changes to the constitution are carefully considered and reflect the will of the people.

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The founding fathers' intentions

The Founding Fathers of the United States Constitution, including James Madison, its principal author, intended for the document to be interpreted in accordance with its original meaning and intent. Madison, often referred to as the "Father of the Constitution", argued against changing the Constitution by evolving language, stating:

> "I entirely concur in the propriety of resorting to the sense in which the Constitution was accepted and ratified by the nation. In that sense alone it is the legitimate Constitution. And if that is not the guide in expounding it, there may be no security for a consistent and stable, more than for a faithful exercise of its powers. If the meaning of the text be sought in the changeable meaning of the words composing it, it is evident that the shape and attributes of the Government must partake of the changes to which the words and phrases of all living languages are constantly subject. What a metamorphosis would be produced in the code of law if all its ancient phraseology were to be taken in its modern sense."

This view, known as "originalism", asserts that the Constitution should be interpreted based on the original intent of its framers, rather than evolving with modern times. Originalists believe that interpreting the Constitution through a modern lens undermines democracy and fails to provide protection for political minorities from the majority. They argue that the Constitution is a democratically adopted legal document that serves as a foundation for the republic and should not be subject to frequent changes.

However, it is important to note that the Founding Fathers did include broad ideals such as "liberty" and "equal protection" in the Constitution, recognising that these principles transcend the specific rights of any given time period. Additionally, supporters of a living constitution argue that the constitutional framers intentionally used broad and flexible terms to create a dynamic document that could evolve with societal needs. This interpretation, known as "judicial pragmatism", suggests that the Constitution should develop alongside society to provide a more malleable tool for governments.

While there are valid arguments on both sides, the intention of the Founding Fathers, including James Madison, appears to align more closely with the originalist interpretation. They recognised the importance of timeless ideals but intended for the Constitution to be interpreted based on its original meaning and ratifications, rather than being subject to frequent changes to reflect modern preferences.

The British and Indian constitutions

The British constitution is an unwritten, "living constitution" that requires only a simple majority vote to amend. It is influenced by statute law and the UK's Supreme Court. The UK's constitution is bound to international law, with Parliament cooperating with organisations such as the UN and the European Convention on Human Rights. Parliamentary sovereignty is a central element of the British constitution, meaning that an Act of Parliament is the highest form of law. However, this also means that "Parliament cannot bind itself".

The Indian Constitution, which came into force on 26 January 1950, is considered a living and breathing document. It is the supreme legal document of India and is the longest written national constitution in the world. The Indian Constitution was drawn from previous legislation, such as the Government of India Acts of 1919 and 1935, and the Indian Independence Act of 1947. It has had over 100 amendments since it was enacted, making it the world's most frequently amended national governing document. The Indian Constitution lays out the fundamental political code, structure, procedures, powers, and duties of government institutions, as well as the fundamental rights and duties of citizens.

The idea of a "living constitution" is a viewpoint that a constitution holds a dynamic meaning even if it is not formally amended. Proponents of this viewpoint suggest that the constitution should develop alongside society's needs, providing a more malleable tool for governments. Living Constitutionalists argue that broad ideals such as "liberty" and "equal protection" were included in the Constitution because they are timeless and inherently dynamic. For example, the meaning of "liberty" in 1791 would have been different from its interpretation in 1591 or 1991.

On the other hand, some people disagree with the idea of a living constitution. U.S. Supreme Court Justice Antonin Scalia stated that the Constitution is not a living document and should not be rewritten by the unelected justices of the Supreme Court. He described himself as an originalist, someone who believes that the Constitution is a democratically adopted legal document that does not change. He argued that allowing the court to interpret the Constitution would stifle debate, as certain decisions would be taken off the democratic stage.

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