The U.S. Constitution has often been described as a "living document." While the concept of a living constitution has many definitions, the idea has not been without controversy. Some legal scholars oppose the idea that the Constitution is living, and instead adhere to an "originalist" point of view. These scholars do not agree that the interpretation of the Constitution can change with time, which is what proponents of the living document theory often propose.
Adjusting to Societal Change
Some proponents of a living Constitution believe that the document should be interpreted to account for changing societal values. This theory does not necessarily rely only on the words written in the Constitution itself. Instead, this type of living document theory relies on changing social sentiments, conscience and moral standards. For example, a case before the Supreme Court arguing against the constitutionality of prisoner confinement appealed to the Court as the "voice and conscience of contemporary society." This type of argument is different from one that argues that the Constitution -- as it is written -- judges certain types of prison confinement to be unconstitutional.
Other proponents of a living Constitution believe that the document was written with broad language that allows for a changing interpretation. Former Supreme Court Justice William Brennan articulated this view as the Constitution's "majestic generalities": The document's language is often intentionally vague, which allows its interpretation to change. This, however, is very different from the living document theory that relies on social change. In the broad language approach, flexibility is written into the Constitution, and does not require outside social changes to justify a new interpretation.
A third way that the Constitution stays living is through the amendment process. Over time, 27 amendments have been added to the Constitution. These include major changes like the prohibition of slavery and the enfranchisement of women. The Constitutional amendment process is slow and difficult; it is meant to reflect only the greatest changes in public opinion, like the widespread belief in the early 20th century that women should be allowed to vote. The Constitution remains living in that its words can literally be changed over time.
Originalism and Opponents of a Living Document
Not all legal scholars believe the Constitution is a living document, at least not in the sense that it is open for constant reinterpretation. Besides the fact that most scholars accept the legitimacy of Constitutional amendments, some legal theorists believe that the Constitution should only be interpreted as its authors understood the document. Supreme Court justices like Antonin Scalia believe in a theory of "originalism," where reinterpreting the Constitution to suit changing public opinion is dangerous. In this view, only the original intentions of the Constitution's authors should be considered when trying to glean legal insight from the document.
- Harvard Law School: The Notion of a Living Constitution
- Slate: Alive and Kicking: Why no one truly believes in a dead Constitution
- American Bar Association: Original Intent or Evolving Constitution? Two Competing Views on Interpretation
- Harvard Law Review: The Living Constitution
- National Public Radio: Conservatives Have "Originalism," Liberals Have...?
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