Living Constitution

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The United States Supreme Court. Supreme Court of the United States.jpg
The United States Supreme Court.

In United States constitutional interpretation, the living Constitution (or loose constructionism) is the claim that the Constitution has a dynamic meaning or it has the properties of an animate being in the sense that it changes. The idea is associated with views that contemporaneous society should be taken into account when interpreting key constitutional phrases. [1]

United States Federal republic in North America

The United States of America (USA), commonly known as the United States or America, is a country comprising 50 states, a federal district, five major self-governing territories, and various possessions. At 3.8 million square miles, the United States is the world's third or fourth largest country by total area and is slightly smaller than the entire continent of Europe's 3.9 million square miles. With a population of over 327 million people, the U.S. is the third most populous country. The capital is Washington, D.C., and the largest city by population is New York City. Forty-eight states and the capital's federal district are contiguous in North America between Canada and Mexico. The State of Alaska is in the northwest corner of North America, bordered by Canada to the east and across the Bering Strait from Russia to the west. The State of Hawaii is an archipelago in the mid-Pacific Ocean. The U.S. territories are scattered about the Pacific Ocean and the Caribbean Sea, stretching across nine official time zones. The extremely diverse geography, climate, and wildlife of the United States make it one of the world's 17 megadiverse countries.

United States Constitution Supreme law of the United States of America

The United States Constitution is the supreme law of the United States. The Constitution, originally comprising seven articles, delineates the national frame of government. Its first three articles embody the doctrine of the separation of powers, whereby the federal government is divided into three branches: the legislative, consisting of the bicameral Congress ; the executive, consisting of the President ; and the judicial, consisting of the Supreme Court and other federal courts. Articles Four, Five and Six embody concepts of federalism, describing the rights and responsibilities of state governments, the states in relationship to the federal government, and the shared process of constitutional amendment. Article Seven establishes the procedure subsequently used by the thirteen States to ratify it. It is regarded as the oldest written and codified national constitution in force.

Contents

While the arguments for the Living Constitution vary, they can generally be broken into two categories. First, the pragmatist view contends that interpreting the Constitution in accordance with its original meaning or intent is sometimes unacceptable as a policy matter, and thus that an evolving interpretation is necessary.[ citation needed ] The second, relating to intent, contends that the constitutional framers specifically wrote the Constitution in broad and flexible terms to create such a dynamic, "living" document.[ citation needed ] Opponents of the idea often argue that the Constitution should be changed through the amendment process, and that allowing judges to determine an ever-changing meaning of the constitution undermines democracy, etc. The main alternative to the Living Constitution is most commonly described as originalism.

Pragmatism Philosophical movement

Pragmatism is a philosophical tradition that began in the United States around 1870. Its origins are often attributed to the philosophers William James, John Dewey, and Charles Sanders Peirce. Peirce later described it in his pragmatic maxim: "Consider the practical effects of the objects of your conception. Then, your conception of those effects is the whole of your conception of the object."

Original intent is a theory in law concerning constitutional and statutory interpretation. It is frequently used as a synonym for originalism; while original intent is indeed one theory in the originalist family, it has some salient differences which has led originalists from more predominant schools of thought such as original meaning to distinguish original intent as much as legal realists do.

Some supporters of the living method of interpretation, such as professors Michael Kammen and Bruce Ackerman, refer to themselves as organicists. [2] [3] [4] [5]

Michael Gedaliah Kammen was an American professor of American cultural history in the Department of History at Cornell University. At the time of his death, he held the title "Newton C. Farr professor emeritus of American history and culture".

Bruce Arnold Ackerman is an American constitutional law scholar. He is a Sterling Professor at Yale Law School.

Living constitution

Background

During the progressive era, many initiatives were promoted and fought for, but were prevented from coming to full fruition in either legislative bodies or judicial proceedings. One case in particular, Pollock v. Farmers' Loan & Trust Co., enraged early progressive activists hoping to achieve an income tax. [6] This led progressives to the belief that the Constitution was unamendable, and ultimately to find a new way to achieve the desired level of progress. [7] [8] Other proposals were considered, such as making the methods for directly amending the Constitution easier. [9]

Pollock v. Farmers' Loan & Trust Company, 157 U.S. 429 (1895), affirmed on rehearing, 158 U.S. 601 (1895), with a ruling of 5–4, was a landmark case in which the Supreme Court of the United States ruled that the unapportioned income taxes on interest, dividends and rents imposed by the Income Tax Act of 1894 were, in effect, direct taxes, and were unconstitutional because they violated the provision that direct taxes be apportioned. The decision was superseded in 1913 by the Sixteenth Amendment to the United States Constitution. A separate holding regarding the taxation of interest income on certain bonds was overruled by the Supreme Court in 1988 in the case of South Carolina v. Baker.

Origins

The phrase originally derives from the title of a 1927 book of that name by Professor Howard Lee McBain, [10] while early efforts at developing the concept in modern form have been credited to figures including Oliver Wendell Holmes Jr., Louis D. Brandeis, and Woodrow Wilson. [11] [12] The earliest mentions of the Constitution as "living", particularly in the context of a new way of interpreting it, comes out of Woodrow Wilson's book Constitutional Government in the United States [13] where he wrote:

Howard Lee McBain was an American political scientist. He is best known for originating the phrase "Living Constitution," the subject of his 1927 book of the same name.

Oliver Wendell Holmes Jr. American judge

Oliver Wendell Holmes Jr. was an American jurist who served as an Associate Justice of the Supreme Court of the United States from 1902 to 1932, and as Acting Chief Justice of the United States in January–February 1930. Noted for his long service, concise and pithy opinions, and deference to the decisions of elected legislatures, he is one of the most widely cited United States Supreme Court justices in history, particularly for his "clear and present danger" opinion for a unanimous Court in the 1919 case of Schenck v. United States, and is one of the most influential American common law judges, honored during his lifetime in Great Britain as well as the United States. Holmes retired from the court at the age of 90, making him the oldest justice in the Supreme Court's history. He also served as an Associate Justice and as Chief Justice of the Massachusetts Supreme Judicial Court, and was Weld Professor of Law at his alma mater, Harvard Law School.

Woodrow Wilson 28th president of the United States

Thomas Woodrow Wilson was an American statesman, lawyer, and academic who served as the 28th president of the United States from 1913 to 1921. A member of the Democratic Party, Wilson served as the president of Princeton University and as the 34th governor of New Jersey before winning the 1912 presidential election. As president, he oversaw the passage of progressive legislative policies unparalleled until the New Deal in 1933. He also led the United States during World War I, establishing an activist foreign policy known as "Wilsonianism."

Living political constitutions must be Darwinian in structure and in practice. [14]

Wilson strengthened this view, at least publicly, while he campaigned for President in 1912. He said:

Society is a living organism and must obey the laws of life, not of mechanics; it must develop. 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. [15]

One could also reasonably argue that Thomas Jefferson himself presented the idea of evolving Constitutional interpretations. In an 1816 letter to Samuel Kercheval, excerpted on Panel 4 of the Jefferson Memorial, he wrote

But I know also, that laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths disclosed, and manners and opinions change with the change of circumstances, institutions must advance also, and keep pace with the times. We might as well require a man to wear still the coat which fitted him when a boy, as civilized society to remain ever under the regimen of their barbarous ancestors. [16]

Judicial pragmatism

Although "the living Constitution" is itself a characterization rather than a specific method of interpretation, the phrase is associated with various non-originalist theories of interpretation. The most common association is with judicial pragmatism. [17] [18] In the course of his judgment in Missouri v. Holland 252 U.S. 416 (1920), Holmes made this remark on the nature of the constitution.

With regard to that we may add that when we are dealing with words that also are a constituent act, like the Constitution of the United States, we must realize that they have called into life a being the development of which could not have been foreseen completely by the most gifted of its begetters. It was enough for them to realize or to hope that they had created an organism; it has taken a century and has cost their successors much sweat and blood to prove that they created a nation. 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. The treaty in question does not contravene any prohibitory words to be found in the Constitution. The only question is whether [252 U.S. 416, 434] it is forbidden by some invisible radiation from the general terms of the Tenth Amendment. We must consider what this country has become in deciding what that amendment has reserved.

According to the pragmatist view, the Constitution should be seen as evolving over time as a matter of social necessity. Looking solely to original meaning, when the original intent was largely to permit many practices universally condemned today, is under this view cause to reject pure originalism out of hand.

This general view has been expressed by Judge Richard Posner:

A constitution that did not invalidate so offensive, oppressive, probably undemocratic, and sectarian law [as the Connecticut law banning contraceptives] would stand revealed as containing major gaps. Maybe that is the nature of our, or perhaps any, written Constitution; but yet, perhaps the courts are authorized to plug at least the most glaring gaps. Does anyone really believe, in his heart of hearts, that the Constitution should be interpreted so literally as to authorize every conceivable law that would not violate a specific constitutional clause? This would mean that a state could require everyone to marry, or to have intercourse at least once a month, or it could take away every couple's second child and place it in a foster home.... We find it reassuring to think that the courts stand between us and legislative tyranny even if a particular form of tyranny was not foreseen and expressly forbidden by framers of the Constitution. [19]

This pragmatist objection is central to the idea that the Constitution should be seen as a living document. Under this view, for example, constitutional requirements of "equal rights" should be read with regard to current standards of equality, and not those of decades or centuries ago, because the alternative would be unacceptable.

Original intent

In addition to pragmatist arguments, most proponents of the living Constitution argue that the Constitution was deliberately written to be broad and flexible to accommodate social or technological change over time. Edmund Randolph, in his Draft Sketch of Constitution, wrote this: [20]

In the draught of a fundamental constitution, two things deserve attention:

1. To insert essential principles only; lest the operations of government should be clogged by rendering those provisions permanent and unalterable, which ought to be accommodated to times and events: and
2. To use simple and precise language, and general propositions, according to the example of the constitutions of the several states.

The living constitution's proponents assert that Randolph's injunction to use "simple and precise language, and general propositions," such that the Constitution could "be accommodated to times and events," is evidence of the "genius" of the Constitutional framers. James Madison, principal author of the U.S. Constitution and often called the "Father of the Constitution," said this in argument for original intent and against changing the Constitution by evolving language:

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.

Some living Constitutionists seek to reconcile themselves with the originalist view; e.g., one that interprets the Constitution as it was originally intended to be interpreted. [21]

Applying a living constitution

One application of the living Constitution framework is seen in the Supreme Court's reference to "evolving standards of decency" under the Eighth Amendment. This was seen in the 1958 Supreme Court case of Trop v. Dulles : [22]

[T]he words of the [Eighth] Amendment are not precise, and that their scope is not static. The Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.

While the Court was referring in Trop only to the Eighth Amendment's prohibition on cruel and unusual punishment, the underlying conception – namely, that the Constitution is written in broad terms, and that the Court's interpretation of those terms should reflect current societal conditions – is the heart of the "living Constitution" doctrine. [23]

Equal protection and due process clauses

The Warren Court, led by Chief Justice Earl Warren, is recognized as having dramatically expanded civil liberties protected under the Constitution. Warren Court 1953.jpg
The Warren Court, led by Chief Justice Earl Warren, is recognized as having dramatically expanded civil liberties protected under the Constitution.

From its inception, one of the most controversial aspects of the living Constitutional framework has been its association with broad interpretations of the equal protection and due process clauses of the 5th and 14th Amendments.[ citation needed ]

Proponents of the Living Constitution suggest that a dynamic view of civil liberties is vital to the continuing effectiveness of our Constitutional scheme. Not only is it currently seen as unacceptable to suggest that married women or descendants of slaves are not entitled to liberty or equal protection with regard to coverture laws, slavery laws and their legacy as they were not expressly seen as free from such by all ratifiers at the time of the Constitutional ratification, but neither do advocates of the living Constitution believe that the framers intended, or certainly demanded, that their 18th century practices be regarded as the permanent standard for these ideals.[ citation needed ]

Living Constitutionalists suggest that broad ideals such as "liberty" and "equal protection" were included in the Constitution precisely because they are timeless, due to their inherently dynamic nature. Liberty in 1791, it is argued, was never thought to be the same as liberty in 1591 or 1991, but rather was seen as a principle transcending the recognized rights of that day and age. Giving them a fixed and static meaning in the name of "originalism," thus, is said to violate the very theory it purports to uphold.[ citation needed ]

Points of contention

As the subject of significant controversy, the idea of a Living Constitution is plagued by numerous conflicting contentions.

Disregard of Constitutional language

The idea of a Living Constitution was often characterized by Justice Scalia and others as inherently disregarding Constitutional language, suggesting that one should not simply read and apply the constitutional text.

Jack Balkin argues that this is not the intended meaning of the term, however, which suggests rather that the Constitution be read contemporaneously, rather than historically. [24] Such an inquiry often consults the original meaning or intent, along with other interpretive devices. A proper application, then, involves some reconciliation between these various devices, not a simple disregard for one or another. [25] [26]

Judicial activism

Another common view of the Living Constitution is as synonymous with "judicial activism," a phrase generally used to accuse judges of resolving cases based on their own political convictions or preferences. [27]

Comparisons

In sum, it may be noted that the Living Constitution does not itself represent a detailed philosophy, and that distinguishing it from other theories can be difficult. Indeed, Living Constitutionalists often suggest that it is the true originalist philosophy, while originalists generally agree that phrases such as "just compensation" should be applied differently than 200 years ago. It has been suggested that the true difference between these judicial philosophies does not regard "meaning" at all, but rather, the correct application of Constitutional principles. [28] A Living Constitutionalist would not necessarily state, for instance, that the meaning of "liberty" has changed since 1791. It may be what it always has always been: a general principle recognizing individual freedom. The important change then might be in what is recognized as liberty today, that was not fully recognized two centuries ago. This view was enunciated for the Supreme Court by Justice George Sutherland in 1926:

[W]hile the meaning of constitutional guaranties never varies, the scope of their application must expand or contract to meet the new and different conditions which are constantly coming within the field of their operation. In a changing world it is impossible that it should be otherwise. But although a degree of elasticity is thus imparted, not to the meaning, but to the application of constitutional principles, statutes and ordinances, which, after giving due weight to the new conditions, are found clearly not to conform to the Constitution, of course, must fall. [29]

To complete the example, the question of how to apply a term like "liberty" may not be a question of what it "means," but rather a question of what liberties are presently entitled to constitutional protection. Living Constitutionalists tend to advocate a broad application in accordance with current views, while originalists tend to seek an application consistent with views at the time of ratification. Critics of the Living Constitution assert that it is more open to judicial manipulation, while proponents argue that theoretical flexibility in either view provides adherents extensive leeway in what decision to reach in a particular case. [30] [31]

Debate

Chief Justice William Rehnquist criticized the notion of a Living Constitution. William Rehnquist.jpg
Chief Justice William Rehnquist criticized the notion of a Living Constitution.

By its nature, the "living Constitution" is not held to be a specific theory of construction, but a vision of a Constitution whose boundaries are dynamic, congruent with the needs of society as it changes. This method also has its critics; in the description of Chief Justice William Rehnquist, it "has about it a teasing imprecision that makes it a coat of many colors." [32]

It is important to note that the term "living Constitution" is sometimes used by critics as an aspersion, while some advocates of the general philosophy avoid the phrase. Opponents of the doctrine tend to use the term as an epithet synonymous with judicial activism (itself a hotly debated phrase). However, just as some conservative theorists have embraced the term Constitution in Exile (which similarly gained popularity through use by liberal critics), and textualism was a term which once had pejorative connotations before its widespread acceptance as a badge of honor, some liberal theorists have embraced the image of a living document as appealing. [33]

Arguments in favor

Two of the arguments in support of the concept of a "living Constitution" is the concept that the Constitution itself is silent on the matter of constitutional interpretation. Proponents of the living Constitution assert that the Constitutional framers, most of whom were trained lawyers and legal theorists, were certainly aware of these debates; they also would have known the confusion that not providing a clear interpretive method would cause. Had the framers meant for future generations to interpret the Constitution in a specific manner, they could have indicated such within the Constitution itself. [34] The lack of guidance within the text of the Constitution suggests, therefore, that either: a) there was no such consensus, or b) the framers never intended any fixed method of constitutional interpretation.

Relating to the pragmatic argument, it is further argued that if judges were denied the opportunity to reflect on changes to modern society in interpreting the scope of Constitutional rights, the resulting Constitution either would not reflect current mores and values, or would necessitate a constant amendment process to reflect our changing society.

Another defense of the Living Constitution is based in viewing the Constitution not merely as law, but as a source of foundational concepts for the governing of society. Of course, laws must be fixed and clear so that people can understand and abide by them on a daily basis. But if the Constitution is more than a set of laws, if it provides guiding concepts which themselves will in turn provide the foundations for laws, then the costs and benefits of such an entirely fixed meaning are very different. The reason for this is simple: if a society locks itself into a previous generation's interpretive ideas, it will wind up either constantly attempting to change the Constitution to reflect changes, or simply scrapping the Constitution altogether. While we remain bound by the rights and powers provided in the Constitution, thus, the scope those rights and powers should account for society's present experiences. "Oliver Wendell Holmes, Jr., wrote in 1914: 'Provisions of the Constitution of the United States are not mathematical formulas having their essence in their form, but are organic living institutions transplanted from English soil. Their significance is not to be gathered simply from the words and a dictionary, but by considering their origin and the line of their growth.'" [35] [36]

A prominent endorsement of the Living Constitution concept was heard in the 2000 presidential campaign by the Democratic candidate, Al Gore. [37]

Arguments against

The strongest argument against the doctrine of "Living Constitution" comes not from its moderate use, but when the concept is seen as promoting activism. The term presumes the premise of "that which is written is insufficient in light of what has transpired since". This more moderate concept is generally not the target of those who are against the "Living Constitution". The concept considered perverse by constructionalists is "making the law say what you think it should say, rather than submitting to what it does say".

Economist Thomas Sowell argues in his book Knowledge and Decisions that since the original designers of the Constitution provided for the process of changing it, they never intended for their original words to change meaning. Sowell also points out cases where arguments are made that the original framers never considered certain issues, when clear record of them doing so exists.

Another argument against the concept of a "living Constitution" ironically, is similar to the argument for it; the fact that the Constitution itself is silent on the matter of constitutional interpretation. The doctrine of the "living Constitution" relies on the concept that the original framers either could not come to a consensus about how to interpret, or they never intended any fixed method of interpretation. This would then allow future generations the freedom to reexamine for themselves how to interpret the Constitution.

This view does not take into account why the original constitution does not allow for judicial interpretation in any form. The Supreme Court's power for constitutional review, and by extension its interpretation, did not come about until Marbury v. Madison in 1803. The concept for a "living constitution" therefore relies on an argument regarding the writing of the constitution that had no validity when the constitution was written.

The views of constitutional law scholar Laurence Tribe are often described by conservative critics such as Robert Bork as being characteristic of the "living Constitution paradigm" they condemn. Bork labels Tribe's approach as "protean," meaning that it was whatever Tribe needed it to be to reach a desired policy outcome. (Tribe rejects both the term and the description) Such a construction appears to define "living Constitution" doctrine as being an ends dictate the means anti-law philosophy. Some liberal constitutional scholars have since implied a similar charge of intellectual dishonesty regarding originalists, noting that they virtually never reach outcomes with which they disagree. (Many academic political scientists believe that justices and appeals judges are willing to alter their outcomes to attain philosophical majorities on certain questions.)[ citation needed ]

In 1987, Supreme Court Justice Thurgood Marshall delivered a lecture, "The Constitution: A Living Document," in which he argued that the Constitution must be interpreted in light of the moral, political, and cultural climate of the age of interpretation. If Judge Bork's formulation of "the living Constitution" is guiding, then any interpretation of the Constitution other than originalism (of one form or another) implicates a living Constitution. If, however, Justice Marshall's formulation is guiding, then it is unclear whether methods derived from law and economics or the Moral Constitution might be implicated.

References to "the living Constitution" are relatively rare among legal academics and judges, who generally prefer to use language that is specific and less rhetorical. It is also worth noting that there is disagreement among opponents of "the living Constitution" about whether the idea is the same as, implied by, or assumed by judicial activism, which has a similar ambiguity of meaning and is also used primarily as an epithet.

Justice Clarence Thomas has routinely castigated "living Constitution" doctrine. In one particularly strongly worded attack, he noted that:

Let me put it this way; there are really only two ways to interpret the Constitution – try to discern as best we can what the framers intended or make it up. No matter how ingenious, imaginative or artfully put, unless interpretive methodologies are tied to the original intent of the framers, they have no more basis in the Constitution than the latest football scores. To be sure, even the most conscientious effort to adhere to the original intent of the framers of our Constitution is flawed, as all methodologies and human institutions are; but at least originalism has the advantage of being legitimate and, I might add, impartial. [38]

Justice Antonin Scalia has expressed similar sentiments. He commented:

[There's] the argument of flexibility and it goes something like this: The Constitution is over 200 years old and societies change. It has to change with society, like a living organism, or it will become brittle and break. But you would have to be an idiot to believe that; the Constitution is not a living organism; it is a legal document. It says something and doesn't say other things.... [Proponents of the living constitution want matters to be decided] not by the people, but by the justices of the Supreme Court .... They are not looking for legal flexibility, they are looking for rigidity, whether it's the right to abortion or the right to homosexual activity, they want that right to be embedded from coast to coast and to be unchangeable. [39]

He also said:[ citation needed ]

If you think aficionados of a living Constitution want to bring you flexibility, think again.... You think the death penalty is a good idea? (Under the formalist understanding of the Constitution, but not under the Living Constitution understanding, you can persuade your fellow citizens to adopt it. You want a right to abortion? Persuade your fellow citizens and enact it. That's flexibility.

Professor Michael Ramsey has criticized living constitutionalism on the grounds that there are very little limits on what it could achieve. [40] Ramsey uses Kenneth Jost's argument in favor of the unconstitutionality of the Electoral College to argue that a living constitutionalist could believe that "[e]ven something expressly set forth in the Constitution can be unconstitutional if annoying, inconvenient or ill-advised." [40] Likewise, Professors Nelson Lund and John McGinnis have argued that it would be difficult for a living constitutionalist such as Robert Post to object if the U.S. Supreme Court would have used its reverse incorporation principle together with the principles of Reynolds v. Sims to make the U.S. Senate apportioned exclusively based on population and nevertheless retained the trust of the American people after doing this. [41]

Activism

One accusation made against the living Constitution method states that judges that adhere to it are "Activists" and seek to legislate from the bench. What is generally meant by this is that a judge winds up substituting his judgment regarding the validity, meaning, or scope of a law for that of the democratically elected legislature.

Adherents of a living Constitution method are often accused of "reading rights" into the Constitution; that is, they are accused of claiming that the Constitution implies rights found nowhere in the constitutional text. For example, in Roe v. Wade , the Supreme Court held that implicit within the Constitution was a "right to privacy" and that this right extends to a woman's right to decide whether to terminate a pregnancy. As such, the Court held that the government could only regulate this right with a compelling interest, and even then, only if the regulation was as minimally intrusive as possible. Conservative critics have since accused the Supreme Court of activism in inventing a Constitutional right to abortion. This accusation may be accurate (in that abortion rights indeed had not previously been recognized), however as a criticism made by conservatives, it has been applied selectively. For example, few conservatives levy the same claim against the Supreme Court for its decisions concerning sovereign immunity: a term also found nowhere in the Constitution but has been read into the Eleventh Amendment by the Supreme Court and since been expanded by the recent conservative majority.

Internationally

Canada

In Canada, the living constitution is described under the living tree doctrine .

Unlike the case of the United States, the fact that the constitution of Canada was intended from the outset to encompass unwritten conventions and legal principles is beyond question. For example, the text of the constitution does not mention the office of prime minister or that the governor general always grants royal assent to bills. Principles such as democracy, the Implied Bill of Rights, the rule of law, and judicial independence are held to derive in part from the preamble of the constitution, which declared the constitution of Canada to be "similar in principle" to that of the United Kingdom.

The concept of an evolving constitution has notably been applied to determine the division of powers between provinces and the federal government in areas of jurisdiction not contemplated at the time of enactment of the British North America Act. For example, authority over broadcasting has been held to fall within the federal "peace, order and good government" power.

The Supreme Court of Canada, in Re: Same-Sex Marriage (2004), held that Parliament (as opposed to provincial legislatures) had the power to define marriage as including same-sex unions. It rejected claims that the constitutionally enumerated federal authority in matters of "Marriage and Divorce" could not include same-sex marriage because marriage as conceived in 1867 was necessarily opposite-sex:

The "frozen concepts" reasoning runs contrary to one of the most fundamental principles of Canadian constitutional interpretation: that our Constitution is a living tree which, by way of progressive interpretation, accommodates and addresses the realities of modern life. [42]

United Kingdom

It has been argued that a primary determinative factor in whether a legal system will develop a "living constitutional" framework is the ease with which constitutional amendments can be passed. [43] With this view in mind, the UK Constitution could be considered a "living constitution". It only requires a simple majority vote [44] to amend. [45]

India

The Constitution of India is considered to be a living and breathing document. [46] [47]

See also

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In Canadian law, the living tree doctrine is a doctrine of constitutional interpretation that says that a constitution is organic and must be read in a broad and progressive manner so as to adapt it to the changing times.

Jack Balkin American legal writer

Jack M. Balkin is an American legal scholar. He is the Knight Professor of Constitutional Law and the First Amendment at Yale Law School. Balkin is the founder and director of the Yale Information Society Project (ISP), a research center whose mission is "to study the implications of the Internet, telecommunications, and the new information technologies for law and society." He also directs the Knight Law and Media Program and the Abrams Institute for Free Expression at Yale Law School.

Constitutional theory is an area of constitutional law that focuses on the underpinnings of constitutional government. It overlaps with legal theory, constitutionalism, philosophy of law and democratic theory. It is not limited by country or jurisdiction.

Judicial review in the United States Ability of a court in the US to examine laws to determine if it contradicts current laws

In the United States, judicial review is the ability of a court to examine and decide if a statute, treaty or administrative regulation contradicts or violates the provisions of existing law, a State Constitution, or ultimately the United States Constitution. While the U.S. Constitution does not explicitly define a power of judicial review, the authority for judicial review in the United States has been inferred from the structure, provisions, and history of the Constitution.

The basic structure doctrine is an Indian judicial principle that the Constitution of India has certain basic features that cannot be altered or destroyed through amendments by the parliament. Key among these "basic features", as expounded by its most prominent proponent Justice Hans Raj Khanna, are the fundamental rights granted to individuals by the constitution. The doctrine thus forms the basis of a power of the Supreme Court to review and strike down constitutional amendments and acts enacted by the Parliament which conflict with or seek to alter this "basic structure" of the Constitution.The basic features of the Constitution have not been explicitly defined by the Judiciary, and the claim of any particular feature of the Constitution to be a "basic" feature is determined by the Court in each case that comes before it. Thus it gives extra power to court to review and strike down any constitutinal amendmentts and act enacted by the Parliament.

<i>Beauregard v Canada</i>

Beauregard v Canada [1986] 2 S.C.R. 56 was a decision by the Supreme Court of Canada on judicial independence. Notably, the Court found that judicial independence is based partly in an unwritten constitution, and that some institutional independence is needed so that judges can guard the Constitution of Canada. These findings were repeated, with far-reaching consequences, in the Provincial Judges Reference (1997).

A living document, also known as an evergreen document or dynamic document, is a document that is continually edited and updated. An example of a living document is an article in Wikipedia, an online encyclopedia that permits anyone to freely edit its articles, in contrast to "dead" or "static" documents, such as an article in a single edition of the Encyclopædia Britannica.

Judicial interpretation refers to different ways that the judiciary uses to interpret the law, particularly constitutional documents and legislation. This is an important issue in some common law jurisdictions such as the United States, Australia and Canada, because the supreme courts of those nations can overturn laws made by their legislatures via a process called judicial review.

United States constitutional law is the body of law governing the interpretation and implementation of the United States Constitution.

References

  1. Winkler, Adam. A Revolution Too Soon: Woman Suffragists and The "Living Constitution". 76 NYULR 1456, 1463 ("Based on the idea that society changes and evolves, living constitutionalism requires that constitutional controversies, in the words of Justice Oliver Wendell Holmes Jr., "must be considered in the light of our whole experience and not merely in that of what was said a hundred years ago.")
  2. The Holmes Lectures: The Living Constitution, by Bruce Ackerman
  3. Sovereignty and liberty: constitutional discourse in American culture, by Michael Kammen
  4. Can Pragmatists be Constitutionalists? Dewey, Jefferson and the Experimental Constitution, "organicism (or that a constitution is a living document, the meaning of which evolves with the changing values and norms of each new generation)"
  5. , "Following the earlier Canadian constitutional tradition, the courts have shown little interest in an originalist approach and have taken a much more organicist stance in line with the "living tree" imperative."
  6. Supreme Court A to Z
  7. The American State from the Civil War to the New Deal, by Paul D. Moreno, p. 135, Cambridge University Press
  8. Progressive Historians, by Richard Hofstadter
  9. TRANSFORMING AMERICAN DEMOCRACY: TR AND THE BULL MOOSE CAMPAIGN OF 1912, Miller Center of Public Affairs
  10. McBain, Howard Lee (1927). "The Living constitution, a consideration of the realities and legends of our fundamental law, by Howard Lee McBain". the Workers education bureau press. OCLC   459798913
  11. Winkler at 1457
  12. Wilson often referred to the Constitution as a "vehicle of life." See Kammen, Michael. A Vehicle of Life: The Founders' Intentions and American Perceptions of Their Living Constitution. Proceedings of the American Philosophical Society, Vol. 131, No. 3, A More Perfect Union: Essays on the Constitution (Sep., 1987)
  13. Wilson, Woodrow. (1908) Constitutional Government in the United States
  14. Wilson, Woodrow. (1908) Constitutional Government in the United States pg. 57.
  15. Pestritto, Ronald J. (2005) Woodrow Wilson: The Essential Political Writings pg. 121. This is part of his "The New Freedom" series of speeches.
  16. "Quotations on the Jefferson Memorial | Thomas Jefferson's Monticello". Monticello.org. Retrieved April 19, 2019.
  17. Goldford, Dennis J (2005). The American Constitution and the Debate Over Originalism. Cambridge University Press, Pg. 59. ISBN   0-521-84558-0 ("Harold Koh justifies such a position by distinguishing between a rigid literalism he ascribes to originalism and a flexible pragmatism that views the Constitution as a living document that must adapt to modern times.")
  18. Harold Koh, 41 Duke Law Journal 122, 128 (1991)(note 34).
  19. Posner, Richard (1992) Sex and Reason. Harvard University Press, pg. 328. ISBN   0-674-80280-2
  20. Randolph, Edmund (July 26, 1787), Draft Sketch of Constitution , retrieved March 27, 2017
  21. Marshall, Lawrence. Contempt of Congress: A Reply to the Critics of an Absolute Rule of Statutory Stare Decisis, 88 Michigan Law review 2467, 2478 (1990)(footnote omitted). ("Consistent with the notion of the Constitution as a living document, definitions and applications of terms like "due process," "cruel and unusual punishment," and "unreasonable search and seizure" evolve over time. The specter of judges inserting content into these phrases is not an unfortunate or inevitable by-product of the framers' poor drafting or lack of foresight; it is a critical part of the process of breathing life into a document originated by those long dead.") Quoted by Goldford
  22. Trop v. Dulles , 356 U.S. 86 (1958)
  23. Balkin, Jack. Alive and Kicking: Why no one truly believes in a dead Constitution. August 29, 2005 http://www.slate.com/id/2125226/ Retrieved 4/20/07 ("Original meaning does not mean original expected application. For example, the Constitution bans cruel and unusual punishments. But the application of the concepts of "cruel and unusual" must be that of our own day, not 1791.")
  24. Balkin, Jack. Alive and Kicking: Why no one truly believes in a dead Constitution. August 29, 2005 http://www.slate.com/id/2125226/ Retrieved 4/20/07 ("A living Constitution requires that judges faithfully apply the constitutional text, given the meanings the words had when they were first enacted, applying those words to today's circumstances.")
  25. Amann, Diane Marie (2006). International Law and Rehnquist-Era Reversals. 94 Georgetown Law Journal 1319 ("Living-Constitution doctrines require the Court to render a decision faithful both to constitutional history and to contemporary circumstance. Seldom will the words of a provision—particularly of an open-textured term like "due process," "cruel and unusual," or, for that matter, "unreasonable" – prove the final authority. The doctrines thus invite judges to consult additional sources.")
  26. Balkin, Jack. Alive and Kicking: Why no one truly believes in a dead Constitution. August 29, 2005 http://www.slate.com/id/2125226/ Retrieved 4/20/07 ("Living constitutionalists draw upon precedent, structure, and the country's history to flesh out the meaning of the text. They properly regard all of these as legitimate sources of interpretation.")
  27. SpearIt (March 2, 2015). "Evolving Standards of Domination: Abandoning a Flawed Legal Standard and Approaching a New Era in Penal Reform". Rochester, NY: Social Science Research Network. SSRN   2572576 .
  28. Balkin, Jack M., "Abortion and Original Meaning" (August 28, 2006). Yale Law School, Public Law Working Paper No. 119 Available at SSRN: http://ssrn.com/abstract=925558
  29. Village of Euclid v. Amber, 272 U.S. 365 (1926) http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=CASE&court=US&vol=272&page=365
  30. Sunsetin, Cass (2006). Of Snakes and Butterflies: A Reply. 106 Columbia Law Review 2234. ("In the last decade and more, some (of course very far from all) conservative judges have been reading the Constitution in a way that lines up uncomfortably well with their own political views: to invalidate affirmative action programs, campaign finance laws, and restrictions on gun control; to strike down certain laws protecting the environment and forbidding discrimination on the basis of disability and age; to protect commercial advertising; to permit discrimination on the basis of sex and sexual orientation; to allow government to provide financial and other assistance to religious institutions; to give the President broad, unilateral authority to fight the war on terror; and to contain no right of reproductive choice or sexual liberty. No one doubts that some of these readings of the Constitution are reasonable. But Radicals in Robes was partly designed to show that, for all the talk of "strict construction," and for all the insistence on distinguishing between law and politics, we are in the midst of a period in which some prominent conservatives are attempting to use judicial power for their own political ends. To be sure, judges almost always act in good faith. But it is nonetheless true that references to history, and to the views of the Framers and ratifiers, are sometimes a fraud and a façade.")
  31. Balkin, Jack. Alive and Kicking: Why no one truly believes in a dead Constitution. August 29, 2005 http://www.slate.com/id/2125226/ Retrieved 4/20/07 ("Because the basic jurisprudential claim that original understanding is the only legitimate method of interpretation is overstated, originalists usually make a second, more pragmatic argument: A living Constitution offers insufficient constraints on judicial power. The irony of this charge is that in practice originalism doesn't provide any greater constraint. As we've seen, originalist judges pick and choose when to invoke original understanding and when to rely on existing precedents they like.")
  32. Rehnquist, William.The Notion of a Living Constitution, 54 Texas Law Review 693 (1976), reprinted in 29 Harvard Journal of Law and Public Policy 401 (2006).
  33. Lithwick, Dahlia. Reasons To Go On Living: Does anyone believe in a "living Constitution" anymore? August 23, 2005. http://www.slate.com/id/2124891/ Retrieved 4/20/07.
  34. Sunstein 106 CLMR 2234, 2236 ("The Constitution does not set out the instructions for its own interpretation. A theory of interpretation has to be defended, rather than asserted, and the defense must speak candidly in terms of the system of constitutional law that it will yield.")
  35. James, Leanoard Frank (1964). The Supreme Court in American Life. Chicago: Scott, Foresman. Pg. 159.
  36. Gompers v. United States 233 U.S. 604 (1914)
  37. "You know, I believe the Constitution is a living and breathing document and that there are liberties found in the Constitution such as the right to privacy that spring from the document, itself, even though the Founders didn't write specific words saying this, this, and this, because we have interpreted our founding charter over the years and found deeper meanings in it, in light of the subsequent experience in American life of the last 211 years of our republic, and a strict constructionist, narrow-minded, harkening back to a literalist reading from 200 years ago, I think that's – I think that's a mistake. And I would certainly not want to appoint any justices that took that approach." Al Gore interview from the NewsHour with Jim Lehrer. Public Broadcasting Service. March 14, 2000 https://www.pbs.org/newshour/election2000/candidates/gore_3-14c.html Retrieved 2010-09-12
  38. "How to Read the Constitution". The Wall Street Journal. October 20, 2008.
  39. n (February 14, 2006). "Scalia jeers fans of 'living' charter". Washington Times. Retrieved September 17, 2015.
  40. 1 2 "Is the Electoral College Unconstitutional? Michael Ramsey - The Originalism Blog". Originalismblog.typepad.com. December 19, 2016. Retrieved April 6, 2019.
  41. https://repository.law.umich.edu/cgi/viewcontent.cgi?article=1719&context=mlr
  42. Supreme Court of Canada, in its ruling, Re: Same-Sex Marriage, December 2004
  43. Frey, Bruno S. and Stutzer, Alois, Direct Democracy: Designing a Living Constitution (September 17, 2003). Zurich IEER Working Paper No. 167. Available at SSRN: http://ssrn.com/abstract=452081
  44. The UK constitution is "subject to simple majority voting. As such, the traditional constitution is, formally, a flexible constitution." "The Changing Constitution". Pearson Education.
  45. That the UK constitution only needs a simple majority to amend "is the case with all current constitutional statute." "Mapping the path to codifying - or not codifying - the UK's constitution". publications.parliament.uk.
  46. Hasan, Zoya; Sridharan, Eswaran; Sudarshan, R. (2005). India's Living Constitution: Ideas, Practices, Controversies. Anthem Press. ISBN   9781843311379.
  47. India’s Living Constitution