Living Constitution

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The phrase "the living Constitution" emerged from two developments at the end of the nineteenth century. The first was the influence of Darwinism and pragmatism on traditional consitutional theory, and in particular their challenge to a more traditional, and conservative emphasis on remaining faithful to original intent and designs. The second development was the rising constituency for political reform in the early twentieth century after industrialization began putting pressure on eighteenth-century institutional arrangements.

The idea of the living Constitution should be seen in light of a relatively straightforward feature of our constitutional system: the document was intended to be the basis of American government for an indefinite period of time. The Framers believed that the Constitution embodied principles of a republican form of government that had withstood the test of time. Thus, despite warnings from thomas jefferson against imposing on future generations the "dead hand of the past," the supporters of the Constitution felt it was acceptable to entrench these arrangements in a constitutional system that was perpetual and marked by a difficult, formal amending process.

It is sometimes claimed that the idea of the living Constitution received its first clear expression in mcculloch v. maryland (1819) when Chief Justice john marshall wrote that "we must never forget that it is a constitution we are expounding," one that was "intended to endure for ages to come, and consequently, to be adapted to the various crises of human affairs." But it should be remembered that Marshall's intent was to offer an explanation for why the doctrine of implied powers, supplemented by the necessary and proper clause, should be interpreted to give the government flexibility in selecting "the necessary means for the execution of the powers conferred on the government." Marshall did not mean to imply that the actual powers of government might be reinterpreted whenever old understandings proved inconvenient or anachronistic. As Justice joseph story explained in his Commentaries on the Constitution of the United States (1833), while the "means" by which the government pursues its enumerated powers "must be subject to perpetual modification" it is equally important "not to enlarge the construction of a given power beyond the fair scope of its terms, merely because the restriction is inconvenient, impolitic, or even mischievous. If it be mischievous, the power of redressing the evil lies with the people by an exercise of the power of amendment.… [The Constitution] is to have a fixed, uniform, permanent construction. It should be, so far at least as human infirmity will allow, not dependent upon the passions or parties of particular times, but the same yesterday, to-day, and for ever."

By the end of the nineteenth century Charles Darwin's image of change had begun to replace Sir Isaac Newton's rule-bound universe as the exemplar of natural science, and philosophical pragmatism had begun to challenge older protestant commitments to the ongoing authority of inherited texts or principles. woodrow wilson would later explain in his Constitutional Government in the United States (1908) that although the Framers believed that politics "was a variety of mechanics" and the Constitution a "display [of] the laws of nature," we have since come to realize that "[s]ociety is a living organism and must obey the laws of life, not of mechanics" and "all that progressives ask or desire is permission—in an era when 'development,' 'evolution,' is the scientific word—to interpret the Constitution according to the Darwinian principle; all they ask is recognition of the fact that a nation is a living thing and not a machine."

Wilson and other reformers were obviously not asking for an opportunity to use the amendment process to establish new structures. Rather, they were challenging the inherited principle that the Constitution is to have a "permanent construction," arguing instead that judges should update their interpretations to make them more consistent with current assumptions and more serviceable to current problems. On the Supreme Court the theory of the living Constitution found expression in two related but distinct judicial traditions. The first is associated with Justice oliver wendell holmes, jr. , whose famous aphorism "the life of the law has not been logic: it has been experience" was initially intended as a description of common law reasoning but would later inform much of his constitutional decisionmaking. As he put it in missouri v. holland (1920), the words of the Constitution "have called into life a being the development of which could not have been foreseen completely by the most gifted of its begetters," and to be faithful to this "organism" the "case before us must be considered in the light of our whole experience and not merely in that of what was said a hundred years ago." Importantly, Holmes believed that if the political system was to be capable of addressing the new challenges of a rapidly changing world, it was important for judges to get out of the habit of impeding legislative experimentation with reference to inherited, anachronistic constitutional principles. As he put it in his dissenting opinion in lochner v. new york (1905), judges should not use the Constitution to prevent the "natural outcome of dominant opinion" from prevailing in legislation, except in extraordinary circumstances.

The second tradition associated with the new theory of the living Constitution can be traced to Justice louis d. brandeis. Brandies often agreed with Holmes about the advantages of deferring to experimental legislation, but unlike Holmes he also believed that a commitment to a living Constitution meant that judges had an obligation to update constitutional protections to enable them to address contemporary threats to liberty. When the Court ruled in olmstead v. united states (1928) that there was nothing in the language or origin of the fourth amendment that would apply to the practice of wiretapping, Brandeis objected, saying that the Constitution "must have a … capacity of adaptation to a changing world"—not just the clauses that empower the government to address innovative problems, but also those clauses "guaranteeing to the individual protection against specific abuses of power.… Time works changes, brings into existence new conditions and purposes. Therefore a principle to be vital must be capable of wider application than the mischief which gave it birth."

The years leading up to the new deal saw a pitched battle between an older tradition of interpretive stability against the emergent reformist tradition of the living Constitution. As increasing numbers of reform-minded lawyers and judges followed the example of Holmes and Brandeis, conservatives on and off the Court kept insisting, like Justice george sutherland in his dissent in home building & loan association v. blaisdell (1934), that "[c]onstitutional grants of power and restrictions upon the exercise of power are not flexible as the doctrines of the common law are flexible," and that legitimate constitutional change had to take the form of amendment and not interpretive updates. This battle intensified after President franklin d. roosevelt aligned himself firmly behind those who argued that the meaning of the Constitution had to change with the times. This political development led increasing numbers of scholars sympathetic to the New Deal to speak out more strongly in favor of the living Constitution. Of this group none was more vocal or prolific than edward s. corwin, who led the charge in favor of the view "that the Constitution must mean different things at different times if it is to mean what is sensible, applicable, feasible" and that its words must be "construed from a point of view which is sympathetic with the aspirations of the existing generation of American people, rather than that which is furnished by concern for theories as to what was intended by a generation long since dissolved into its native dust."

With the "switch in time" in 1937—when the Court abandoned its Lochner -era commitment to limited national government—the theory of the living Constitution became the dominant position on the Court, but it did not congeal into a unified new theory of interpretation. The original Holmes/Brandeis split continued to shape post–New Deal constitutional theory and practice. The Holmes version of constitutional adaptation through judicial deference was given voice by the former progressive, Justice felix frankfurter. It is a fairly straight line from this position to the attempts of alexander m. bickel to convince the Court to embrace "the passive virtues" of judicial restraint, and then to the claim of Chief Justice william h. rehnquist that the key feature of the living Constitution is "to enable the popularly elected branches of government, not the judicial branch, to keep the country abreast of the times."

Alongside this commitment to judicial deference is the modern liberal version of the tradition, articulated by Justices such as william j. brennan, jr. , who wrote that "the genius of the Constitution rests not in any static meaning it might have had in a world that is dead and gone, but in the adaptability of its great principles to cope with current problems and current needs." Within constitutional theory this Brandeisian version of the living Constitution is most notable in the work of legal philosopher Ronald Dworkin, particularly when he suggests that the specific provisions of the Constitution should be viewed as carriers of more general concepts of political morality that should be abstracted away from the specific understandings (or conceptions) of their drafters and applied in ways that more accurately reflect contemporary convictions and challenges.

Whether either version of the living Constitution can be reconciled with the original understanding of our constitutional system has been a central locus for debate among post–New Deal constitutional theorists. Still, if it be true that the alternative to this move is the kind of activist originalism practiced by pre–New Deal conservatives, then we may come to see the theory of the living Constitution as an understandable—but still controversial—response to the pressures for political change within a difficult-to-amend constitutional system.

Howard Gillman

(see also: Amendment Process (Outside Article V); Judicial Activism and Restraint; Nonjudicial Interpretation of the Constitution; Transformation of Constitutional Law.)


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