Who said the constitution is a living breathing document

On the other hand, there seem to be many reasons to insist that the answer to that question-do we have a living Constitution that changes over time? In fact, the critics of the idea of a living constitution have pressed their arguments so forcefully that, among people who write about constitutional law, the term "the living constitution" is hardly ever used, except derisively. The Constitution is supposed to be a rock-solid foundation, the embodiment of our most fundamental principles-that's the whole idea of having a constitution.

Public opinion may blow this way and that, but our basic principles-our constitutional principles-must remain constant. Otherwise, why have a Constitution at all? Even worse, a living Constitution is, surely, a manipulable Constitution. If the Constitution is not constant-if it changes from time to time-then someone is changing it, and doing so according to his or her own ideas about what the Constitution should look like.

The "someone," it's usually thought, is some group of judges. So a living Constitution becomes not the Constitution at all; in fact it is not even law any more.

It is just some gauzy ideas that appeal to the judges who happen to be in power at a particular time and that they impose on the rest of us. So it seems we want to have a Constitution that is both living, adapting, and changing and, simultaneously, invincibly stable and impervious to human manipulation.

How can we escape this predicament? The good news is that we have mostly escaped it, albeit unselfconsciously. Our constitutional system, without our fully realizing it, has tapped into an ancient source of law, one that antedates the Constitution itself by several centuries. That ancient kind of law is the common law. The common law is a system built not on an authoritative, foundational, quasi-sacred text like the Constitution.

Rather, the common law is built out of precedents and traditions that accumulate over time. Those precedents allow room for adaptation and change, but only within certain limits and only in ways that are rooted in the past. Our constitutional system has become a common law system, one in which precedent and past practices are, in their own way, as important as the written Constitution itself.

A common law Constitution is a "living" Constitution, but it is also one that can protect fundamental principles against transient public opinion, and it is not one that judges or anyone else can simply manipulate to fit their own ideas. The bad news is that, perhaps because we do not realize what a good job we have done in solving the problem of how to have a living Constitution, inadequate and wrongheaded theories about the Constitution persist.

One theory in particular-what is usually called "originalism"-is an especially hardy perennial. Originalism is the antithesis of the idea that we have a living Constitution. It is the view that constitutional provisions mean what the people who adopted them-in the s or s or whenever-understood them to mean. There are different forms of originalism, but this characterization roughly captures all of them.

In the hands of its most aggressive proponents,originalism simply denies that there is any dilemma about the living Constitution. The Constitution requires today what it required when it was adopted, and there is no need for the Constitution to adapt or change, other than by means of formal amendments. There is something undeniably natural about originalism. If we're trying to figure out what a document means, what better place to start than with what the authors understood it to mean?

Also, as a matter of rhetoric, everyone is an originalist sometimes: when we think something is unconstitutional-say, widespread electronic surveillance of American citizens-it is almost a reflex to say something to the effect that "the Founding Fathers" would not have tolerated it.

And there are times, although few of them in my view, when originalism is the right way to approach a constitutional issue. But when it comes to difficult, controversial constitutional issues, originalism is a totally inadequate approach.

It is worse than inadequate: it hides the ball by concealing the real basis of the decision. But if the idea of a living Constitution is to be defended, it is not enough to show that the competing theory-originalism-is badly flawed. You can't beat somebody with nobody.

So I will describe the approach that really is at the core of our living constitutional tradition, an approach derived from the common law and based on precedent and tradition.

Pick up a Supreme Court opinion, in a constitutional case, at random. Look at how the Justices justify the result they reach. Here is a prediction: the text of the Constitution will play, at most, a ceremonial role.

Most of the real work will be done by the Court's analysis of its previous decisions. The opinion may begin with a quotation from the text. Then, having been dutifully acknowledged, the text bows out. The next line is "We"-meaning the Supreme Court-"have interpreted the Amendment to require. Where the precedents leave off, or are unclear or ambiguous, the opinion will make arguments about fairness or good policy: why one result makes more sense than another, why a different ruling would be harmful to some important interest.

The original understandings play a role only occasionally, and usually they are makeweights or the Court admits that they are inconclusive. There are exceptions, like Heller, the recent decision about the Second Amendment right to bear arms, where the original understandings take center stage.

Justice Breyer believes that the charge of a Supreme Court judge is to apply the "unwavering values" of the Constitution to "ever-changing circumstances. It divides power so that no group becomes too powerful: states, federal government, three branches of government.

How tempting, therefore, to conclude that the "unwavering values" entrenched in require the Supreme Court to bring about a diminution of federal power in the health-care sector, and more broadly too.

After all, perhaps the Framers built flexibility into the document to respond to unexpected developments like the radical expansion of the federal government and an attendant loss of local control and liberty.

These are widely held to be defining challenges of our time. Why not take them into consideration? On the other hand, embracing a living Constitution could undermine rights we want to preserve, raise interpretive problems and undermine the legitimacy of the judiciary.

Some people might even suspect that ideological beliefs were playing an outsized role in shaping law. We want to hear what you think about this article. Some argue that a living document would lead to greater freedom but Justice Scalia disagrees. He cited another recent Court case that examined the practice of permitting judges to make factual determinations before they sentence someone convicted of a crime. Justice Scalia agreed with the Court's holding that the practice violated the right to trial by jury.

The concept of the "living Constitution" is only about 50 years old and Justice Scalia fears what such evolution might bring. My most important function on the Supreme Court is to tell the majority to take a walk. Close Search Search. Show Streaming. Explore More. MEP launches Riyada podcast with support from U.

Embassy in Jordan. November 12, March 23, Previous Next Article. Menu Skip to content. This, in a nutshell, was the idea of The United States of America. Like this: Like Loading What do you think? Cancel reply Enter your comment here Fill in your details below or click an icon to log in:.

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