The Living Constitution concept allows judges to interpret the US Constitution in a way that reflects changes in society while adhering to the authors’ intent. Proponents argue that the Constitution should be viewed as a conceptual foundation, while opponents argue that changes should occur through elected branches of government.
The expression Living Constitution refers to a concept according to which the authors of the United States Constitution wrote the document in sufficiently direct and general terms to allow judges to reflect and consider the changes of the current society while adhering to the fundamental intent of the authors. Most justices agree that the writers of the Constitution prudently chose to write this document in broad terms so that modern justices can still apply its precepts to a world with changing laws, attitudes, and conditions through successive generations. The concept of a living Constitution was first advanced in 1920 by Justice Oliver Wendell Holmes in his opinion in Missouri v. Holland. A second, and more controversial, view of a Living Constitution argues that when elected legislative and administrative agents of government fail to right a wrong or solve a particular social problem, then the courts can act to remedy the situation through the judicial process. revision. This practice allows judges to bring their own experiences and viewpoints into the process of statutory interpretation.
Proponents of a living constitution argue that the authors of the constitution did not provide a fixed procedure for interpreting the document. They believe that the absence of guidelines reveals that the authors wanted to allow ample leeway in the application of constitutional rights. Proponents of the living Constitution also point out that if judges find the Constitution rigidly inflexible, then the nation should continually amend it or ignore it altogether as irrelevant to contemporary life. Rather, the Constitution should be viewed as a conceptual foundation of ideas upon which a society can establish its government, but should not be viewed as a prescribed directive.
Opponents of a living framework of the Constitution for constitutional interpretation argue that the authors have not provided a method for adapting the Constitution to the views of modern society. They argue that the drafters intended the changes in the law to occur through the actions of the other two elected branches of government. The role of the judiciary is simply to clarify and enforce laws as they exist, unless those laws clearly violate the Constitution. If a law is not unconstitutional, but simply unpopular with some, the judiciary cannot intervene without a constitutional amendment. To do otherwise would violate the authors’ intent that branches of government have separate, delineated powers.
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