A living Constitution?

A Liv­ing Constitution?

“An unchang­ing Con­sti­tu­tion would fit our soci­ety very badly. Either it would be ignored or, worse, it would be a hin­drance, a relic that keeps us from mak­ing progress and pre­vents our soci­ety from work­ing in the way it should.”

David A. Strauss

Univ. of Chicago Law School

“Well, I’ve talked about some of the false virtues of the Liv­ing Con­sti­tu­tion, let me tell you what I con­sider its prin­ci­ple vices are. Surely the great­est — you should always begin with prin­ci­ple — its great­est vice is its illegitimacy.”

Jus­tice Antonin Scalia

The world is full of great rival­ries. There’s the Yan­kees and the Red Sox, Ohio State and Michi­gan, Microsoft vs. Apple, Rome vs. Carthage or the Hat­fields and the McCoys. When it comes to the legal world, how­ever, one doesn’t typ­i­cally think of great rival­ries. Yet in the field of con­sti­tu­tional law lies a great rivalry that has the poten­tial to have a major impact on the lives of all Americans.

That great legal rivalry sur­rounds the very basic the­o­ries by which we inter­pret our Con­sti­tu­tion. The found­ing doc­u­ment of our sys­tem of gov­ern­ment will turn 225 years old next year. It was writ­ten in a time very dif­fer­ent from the age we live in and yet remains the key doc­u­ment in our soci­ety. Fur­ther, it served as the basis for count­less state and national con­sti­tu­tions around the nation and around the world.

How then, 224 years later, should we inter­pret con­sti­tu­tional ques­tions? Should we exam­ine the orig­i­nal doc­u­ment to deter­mine what its words mean or what the peo­ple who drafted it meant? Should we exam­ine how soci­ety has changed since its draft­ing and work to make the doc­u­ment fit into a mod­ern set­ting? This ten­sion is the under­pin­ning for many con­sti­tu­tional battles.

On the one side is the con­cept of ‘orig­i­nal­ism’. Actu­ally a con­glom­er­a­tion of sev­eral related the­o­ries, it can refer to per­sons who look to the orig­i­nal intent of the drafters of the Con­sti­tu­tion or to those who look to the orig­i­nal mean­ing of the words that make up the text (regard­less of the intent of the peo­ple who wrote them). On the other side of the debate is what is often referred to as a “liv­ing Con­sti­tu­tion”- a mal­leable doc­u­ment that can adapt to changes with­out the need for for­mal amendment.

Sup­port­ers of the liv­ing Con­sti­tu­tion model argue that it is nec­es­sary in order to pre­vent the Con­sti­tu­tion from becom­ing an out­moded relic that doesn’t func­tion. They claim that the process to amend the Con­sti­tu­tion is sim­ply too cum­ber­some to be done reg­u­larly and that the judi­cial process should be allowed to work to adapt con­sti­tu­tional pro­vi­sions into mod­ern times.

Sup­port­ers of the orig­i­nal­ist mod­els note first that they do not believe that a liv­ing Con­sti­tu­tion can even be con­sid­ered. This is not because the sys­tem would be unwork­able but because they argue that a liv­ing Con­sti­tu­tion would require unelected judges and jus­tices to make deci­sions that changed basic rights and priv­i­leges in our coun­try and that such a sys­tem would be fun­da­men­tally ille­git­i­mate. Instead, they look to the orig­i­nal intent or mean­ing of the words and, if amend­ment is nec­es­sary, point to past amend­ments in our con­sti­tu­tional his­tory as proof that those changes can hap­pen. Fur­ther, they argue, statu­tory changes can be made at the state and fed­eral level to adjust legal guide­lines that now fre­quently come before the Supreme Court as issues of con­sti­tu­tional interpretation.

Not only is the Amer­i­can judi­ciary split on how to inter­pret the Con­sti­tu­tion, but so is the Amer­i­can pub­lic. This sum­mer the Pew Research Cen­ter sur­veyed Amer­i­can adults on this very issue. Fifty per­cent of respon­dents sup­ported the liv­ing Con­sti­tu­tion the­ory and 45 per­cent sup­ported orig­i­nal­ism. Sev­eral fac­tors swayed those percentages.

On the polit­i­cal spec­trum 70 per­cent of Repub­li­cans sup­ported orig­i­nal­ism and 65 per­cent of Democ­rats sup­ported a liv­ing Con­sti­tu­tion. Age, gen­der and eth­nic­ity fac­tored in as well. Younger Amer­i­cans (62 per­cent) sup­ported the liv­ing model as com­pared to just 35 per­cent of seniors. Men were evenly split while a larger per­cent­age of women sup­ported the liv­ing model. Cau­casians were evenly split but 60 per­cent of African-American and His­panic respon­dents chose the liv­ing model.

The debate is nearly a cen­tury old and as we approach the document’s 225th birth­day, it seems unlikely to end any­time soon.

David Hej­manowski is a mag­is­trate and court admin­is­tra­tor of the Delaware County Juve­nile Court and a for­mer assis­tant pros­e­cut­ing attorney.

Posted by Dave Hejmanowski on Sep 15 2011. You can follow any responses to this entry through the RSS Feed. Comments can be made below.