The Constitution is the basis for America’s system of government and laws, but many Americans disagree about what role this founding document plays in our lives today. Is the Constitution a sacred document that should be interpreted according to the original intentions of its creators? Is it a “living” document that should grow and change to reflect modern sensibilities? Or, is it something else?
Read on to learn more about these different perspectives.
What Is a Living Constitution?
In short, a living Constitution is one that evolves according to the new circumstances of the nation. Interpreting the Constitution as a living document comes with the assumption that the words have meaning beyond the relevant text, meaning that the situation of contemporary society needs to be taken into account when looking at a particular phrase.
Why Do People Think We Need a Living Constitution?
The Constitution has remained the cornerstone of our nation’s liberty for more than 220 years. While it can be amended, the process is necessarily difficult. In fact, the most important amendments were made 150 years ago after the Civil War. Amendments since that time have dealt mostly with very minor matters that do not impact the daily lives of American citizens. In those 150 years, the country, not to mention the world, has changed dramatically. The population of the United States has increased many times over, and the nation’s technology, economy, and social mores are completely different. People who support the idea of a living Constitution argue that amendments alone cannot keep up with this rate of change.
Proponents of a living Constitution believe that change is necessary, even for the Constitution, as demonstrated by the amendments that have already been made. People who believe in a living Constitution and those who do not both accept this fact. However, supporters of a living Constitution argue that the document was written such that the meaning of the language could change without requiring a formal amendment.
What Do Originalists Believe?
Originalists believe that the Constitutional provisions meant, and continue to mean, exactly what they did to the people who wrote and adopted them. In other words, they argue that the idea of a living Constitution is a moot point because the document does not need to change or adapt except through formal amendment.
The Constitution is the foundation of the nation, and a changing foundation leads to instability. Many originalist constitutional scholars scoff at the idea of a “living Constitution.” After all, the Constitution is the embodiment of our most sacred beliefs and principles. Public opinion changes, but these foundational concepts do not. If they did, what is the point of a Constitution?
Why Do Originalists Prioritize the Founders’ Original Intentions?
Originalists argue that it is vital to interpret the words of the Constitution according to the intentions of the Founding Fathers because doing so removes the personal judgments of individuals or judges from the equation and minimizes the chances of corruption. Many originalists turn to quotes from the Founding Fathers to explain this point of view. While George Washington believed that “the basis of our political systems is the right of the people to make and to alter their constitutions of government,” he also thought that the Constitution as it exists at the time is “sacredly obligatory upon all.” Similarly, Thomas Jefferson said, “Instead of trying what meaning may be squeezed out of the text or invented against it, conform to the probable one in which it was passed.”
Originalists believe that a living Constitution is equivalent to a manipulable Constitution. If the document changes, then someone is doing the changing and inserting his or her own ideas into it. Generally, the “someone” is a group of judges charged with interpreting the document. To many, a fluid Constitution is not a Constitution at all and should not be taken as law any more than the ideas of judges in power should be considered law.
Are There Other Opinions on the Nature of the Constitution?
People in support of and against the idea of a living Constitution both seek to protect the Constitution as the ultimate law and the source of our liberty. At the same time, these are not the only viewpoints that exist about the Constitution. Some scholars have taken a different position altogether.
This position is grounded in the belief that the Constitutional law of the United States resembles a type of law that predates the actual Constitution. This older type of law is called common law, and its roots can be traced back thousands of year informally, and hundreds of years formally. Common law is a system built on precedents and traditions that become solidified over time. While the law can adapt and change, these shifts must stay rooted to the past and thus evolution becomes checked. Supporters of the common law theory believe that the American Constitutional system is a common law system defined by the Constitution but also sensitive to precedent.
As a source of common law, the Constitution, some would argue, gives room for growth, but it also lays out the fundamental principles that are protected from the vicissitudes of public opinion. While amendment is possible, it is not something that can simply be directed according to the opinions of one judge or even a group of judges.