Living Constitution

A living Constitution refers to a foundational governmental document with meanings that can change over time. In this context, the text of the document is not changed, and any unwritten intents of the original writers are not considered important. Instead, the text is interpreted in the context of a modern society, and extrapolations are made based on the rules present in the document. These extrapolations are used to cover issues that may not have been important or present during the time when the Constitution was written.

Many legal rights currently enjoyed by American citizens are the result of living Constitution theory. Most notably of these is the right to privacy, which is extrapolated from numerous amendments in the Bill of Rights. However, an explicit right to privacy is not mentioned anywhere in the Constitution.

Though living Constitution theory allows a document to remain relevant and useful in future eras, it is an unstable method of generating law. As the justices present in the American courts change, so do their interpretations of the Constitution. This can lead to sudden reversal of important or foundational decisions.

Living Constitution theory is opposed by originalist Constitutional theory. Originalists believe that the Constitution should be strictly interpreted as the founders intended. They argue that there is an objective, correct interpretation of each part of the Constitution, and that such objective definitions cannot change over time. They also argue that substantive changes to Constitutional law should happen through amendments, not through differing interpretations.

Background

The Constitution of the United States of America is the foundation of the American legal and governmental system. The Constitution was written in 1787 by fifty-five delegates in Philadelphia, Pennsylvania. Though the organization was called the Constitutional Convention, its original purpose was not to draft a complete constitution for the United States. Instead, it was intended that the delegates work to reform the Articles of Confederation, the original legal and governmental foundation for the United States.

The leaders of the United States had identified numerous problems with the Articles of Confederation. Under this governing document, each state had just a single vote in Congress, regardless of the state’s geographic size or population. Many larger states felt that such a system was unfair to them, while smaller states felt that the system ensured that they would continue to have a significant say in the country’s affairs. In addition to this difficulty, the government of the United States lacked any executive branch, making it impossible to enforce any acts passed by Congress. The Articles of Confederation did not allow for the creation of a federal judicial system, and Congress was not given the power to tax states or to regulate foreign and interstate commerce.

This system maximized the freedom of individual states within the unified United States, which was attractive to many of the Founding Fathers. However, after working under the system, many realized that such a system could not function as a unified whole. In order to create a true confederation of states, each state would have to give some of its power to the national government.

Though many politicians were reluctant to allow the creation of a powerful national government, the weakness of the Articles of Confederation was proven in 1786, during the outbreak of Shay’s Rebellion. In this protest against rising debt and economic difficulties, a group of armed citizens rose up against the national government. However, because of the harsh constraints placed on the national government by the Articles of Confederation, the national government was unable to gather a military force from the national collective. Instead, the rebellion was defeated by the Massachusetts State militia with assistance from a privately funded militia.

For these reasons, the delegates at the Constitutional Convention collectively decided to abandon the Articles of Confederation, drafting a new document to organize the American government. This document set forth the structure of a government with three branches: an executive branch, a judicial branch, and a legislative branch. The executive branch would be composed of the president and agencies that directly report to the president. The judicial branch would be composed of a network of federal courts. The legislative branch included two houses of Congress: the Senate, in which each state received two votes, and the House of Representatives, in which states were awarded votes according to their population.

The new document set a series of checks and balances on each branch of the government. It lays out specific powers inherent to each part of the government, the limits on the powers of the federal government, and the means by which the Constitution can be amended. Though this federal government was substantially more powerful than the one the founders originally intended to create, it successfully unified the former colonies, creating a nation that would grow into one of the world’s largest superpowers.

Overview

The Constitution continues to play a fundamental role in American politics. It still serves as the foundational document for the American government. However, the Constitution was written hundreds of years ago. During this period, the manner in which politicians and legal scholars have interpreted this document has continued to change.

A living Constitution refers to a document that can adapt and change over time without being formally amended. Though the Constitution itself has been repeatedly amended throughout American history, the amendment process is long and difficult. For this reason, it is reserved for only the most important legal changes inherent to American society. Early amendments included the Bill of Rights, which laid out a series of valuable protections for American citizens. Other important amendments included the abolishing of slavery, federal protections for equality when voting, and the enactment of prohibition.

As technology and world politics have continued to advance since the eighteenth century, the manner in which Americans rely on the government has also changed. Many American politicians and legal scholars argue that the acceptance of a living Constitution is the only manner in which such a document can remain central to modern American governance. For example, the Constitutional right to freedom of speech was never written with smartphones, the internet, or a twenty-four-hour news cycle in mind. However, proponents of a living Constitution would adapt the written document’s literal text to the needs of a modern America. In this context, the First Amendment can be interpreted as a broader protection of Americans’ freedom of expression, which clearly includes modern methods of communication.

The theory of a living Constitution also acknowledges that the Founding Fathers who wrote the Constitution were not a unified body. They disagreed on many topics and had conflicting intentions when composing the famous political work. For this reason, legal scholars cannot truly assume the intentions of those delegates, leaving a living interpretation of the text as the sole viable option.

Proponents of a living Constitution argue that the Founding Fathers themselves were pragmatists, and that many of the original delegates intended that future generations improve upon their work. Because formally amending and codifying the necessary changes to the United States Constitution would be prohibitively slow and difficult, they argue that the best way to carry out such an important goal is through a malleable interpretation of the original text.

Finally, some supporters of the living Constitution believe that the views of the Founding Fathers are entirely irrelevant to the modern political world. They state that the original document, though valuable to American society as a whole, was written by a small number of men to govern a premodern agrarian society. As society has evolved to become more inclusive, including moving past the injustice of slavery, so must American society. These scholars argue that continuing to tie modern political theory to the opinions of long-dead politicians who governed in a very different world is harmful to Americans, slowing the progress necessary for the United States to continue to thrive.

Many of the rights currently enjoyed by the American public are built off the assumption of a living Constitution. For example, the Supreme Court struck down racial segregation in American public schools. It was considered a major victory for the Civil Rights movement. However, the Constitution has no explicit ruling on the many social issues, including those regarding race. When faced with such issues, the Supreme Court extrapolates from prior case histories and the present text in the Constitution.

One of the most famous rights extrapolated from living Constitution theory is the American right to privacy. Privacy is not mentioned anywhere in the Constitution. Additionally, though the concept of privacy is clear to most, it has proven a notably difficult concept to define in legal texts. Despite its lack of any explicit mention, many concepts that relate to modern ideas of privacy. In 1920, Supreme Court Justice Louis D. Brandeis stated that the First Amendment, which traditionally protects Americans’ right to free speech. Later, members of the Supreme Court stated that the right to privacy was inferred from many parts of the constitution, including the Third, Fourth, Fifth, and Ninth Amendments.

While useful for adapting the legal system to the changing needs of a modern society, living Constitution theory is not without drawbacks. Though true amendments to the Constitution are extremely difficult to carry out, they are also extremely difficult to undo. The protections, privileges, and legal framework outlined in such amendments are often fairly explicit, providing a stable foundation for future judicial rulings. In contrast with this, judicial decisions made upon the idea of a living Constitution depend upon the immediate interpretation of the relevant judges. In many cases, judges on the Supreme Court make decisions based upon their personal interpretations of the Constitution. In modern times, this practice has come under scrutiny because of the increase in partisanship among judges. Critics argue that judges are ruling more based on political party views rather than legal interpretations. As such, when the judges on such a court shift, decisions can be revisited, suddenly reversing them. For this reason, law built upon the living Constitution is substantially less secure than law built on textual evidence.

In America, the living Constitution theory is seen in a wider system of common law. Common law is law derived from judicial decisions instead of legislative action. Though common law is malleable, if previous judgements are considered binding until they are overturned, it is far more stable than shifting interpretations of a single document. Within this system, the series of continuous legal challenges that take place throughout the United States gradually form the basis of a complex legal system. Much of this system is inferred from Constitutional text, but not explicitly stated in the document itself. This system naturally evolves to create legal stances on topics important to the public as such topics are brought to the courts.

Living Constitution theory is opposed by originalists. Originalism is the legal school of thought that the Constitution has a static meaning that can be discovered by proper scholarly research. This meaning is intrinsically tied to the intents of the Founding Fathers. These theorists argue that Constitutional law debate should focus on finding the specific, objective meaning of the constitution and how that meaning applies to modern society, regardless of the current legislative needs of the American public. Constitutional originalism tends to be associated with conservative legislative and judicial policy.

Progressive policies often promote causes that were foreign to those of the Founding Fathers and are not expressly protected, and protections for these policies are often inferred into other parts of the Constitution. For example, racial and gender equality were not major focuses of the Founding Fathers, but are major issues in modern times. Originalist legal scholars argue that as such issues are not explicitly present within the Constitution, the federal government has no right to legislate on them. They believe that such issues should be left to the states. Other legal scholars argue that the Constitution’s stance on such issues can be discerned through the careful study of related issues.

Bibliography

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