Supreme Court

The Birth of the Living Constitution

Should we interpret the Constitution as a living document?

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What's the proper method for interpreting the U.S. Constitution? Should it be viewed according to its original meaning? Or should the document be viewed in the light of contemporary conditions? If you answered no to the second question and yes to the third, you may be a living constitutionalist.

As Georgetown law professor Larry Solum explains in a fascinating new article at his Legal Theory Blog, "living constitutionalism is the view that the legal content of constitutional doctrine does and should change in response to changing circumstances and values." This view has been around for a long time. According to Solum, the phrase itself apparently dates back to a 1927 book titled The Living Constitution, though it was the influential progressive historian Charles Beard who first took the phrase and really ran with it. "Since most of the words and phrases dealing with the powers and the limits of government are vague and must in practice be interpreted by human beings," Beard wrote in 1936, "it follows that the Constitution as practice is a living thing."

Public Domain

If you have any interest in U.S. legal history, Solum's article is well worth your time. But I was surprised to find that Solum made no mention of Woodrow Wilson, who must surely rank as one of the most important early theorists of living constitutionalism. For example, in his 1885 book Congressional Government, Wilson argued that the Constitution must be able to "adapt itself to the new conditions of an advancing society" or else it would be worthless to that society. "If it could not stretch itself to the measure of the times," Wilson wrote of the Constitution, it "must be thrown off and left behind, as a bygone device."

The idea of throwing off the Constitution as a bygone device proved to be extremely influential on Wilson's intellectual heirs during the New Deal period. For example, in 1935 the U.S. Supreme Court struck down the National Industrial Recovery Act on the grounds that Congress's power "to regulate commerce…among the several states" did not extend so far as to allow Congress to regulate certain economic activities that never crossed any state lines whatsoever. According to the Court's 9-0 ruling in Schechter Poultry Co. v. United States, "extraordinary conditions do not create or enlarge constitutional power."

In response to that decision, President Franklin Roosevelt took a page from Woodrow Wilson and blasted the Court for adhering to the out-of-date constitutional limits originally set by the Commerce Clause. "The country was in the horse-and-buggy age when that clause was written," Roosevelt complained. As far as FDR was concerned, the justices should be using a very different method of legal interpretation, one that would "view the interstate commerce clause in the light of present-day civilization." In short: living constitutionalism.

To make a long story short, Roosevelt lost that case but his (and Wilson's) views prevailed in the long run. For better or worse, living constitutionalism is now one of the dominant methods of legal interpretation in American law.

NEXT: Three sentences worth contemplating

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  1. Yeah it’s a living document, but no one wants to go through the official process to amend it for some reason.

    Maybe because it’s hard, and they don’t like doing things the lawful way? I’m sure that’s not it.

    1. This. But really it’s both dead and living. Basically the Constitution is a zombie and we are simply its potential victims if we try to mess with it.

      1. Zombie? I was thinking more of a ghast, or perhaps a spectre. Though probably not a lich.

      2. A living constitution is a constitution that is dead to individual liberty.

        It does, however, continue to live with regard to the structure of the part of government that is still subject to elected and appointed officials. For example, senator’s terms are still six years, rep terms are two years, the prez can get a four year term only twice, and SCOTUS appointments are for life. But the constitution is really dead as a doornail with respect to what these officials can do to individual liberty.

    2. In far too many cases, it’s because they know that their arguments are either unpopular or nonsensical. The Progressive /Left wants a ‘Living Constitution’ approach to the Second Amendment because they REALLY don’t want to put their ideas to a vote. OTOH, the Progressive/Left wants to apply a ‘living Constitution’ approach to the First Amendment because they want to be able to shift what that amendment means on a case by case basis, as it suits them.

      1. Actually, “2nd Amendment” folks want a “Living Constitution” too. Otherwise, you’re stuck with the inconvenient tid-bit that in 1788, Amendments #1-8 didn’t apply to states. It wasn’t until “Incorporation”, a century later (late 1800s) that those Amendments started being applied to states.

        So if you’re going to an “original intent” regarding the 2nd Amendment? Then it’s 100% a federal issue, and not a state issue, meaning that states have free reign to decide what they want.

        At best, you can argue that the 14th Amendment included “Incorporation” implicitly, but at that point you’re not arguing original intent, but 1867 amended-intent.

        1. So you’re saying that no States enjoyed free speech, or freedom of the press, and the States could make laws respecting establishment of Religion before the Civil War.

          Where can I read more about this?

          1. Nah, I’m saying that before the concept of “Incorporation” became popular in the 1800s?, that people looked at their State Constitutions for such things. That’s why if you look at them, you see a lot of overlap with the Bill of Rights.

            As for “where you can read more”… um, college level civics classes? Wikipedia has an article on it.
            ________
            ?Fun fact! The 2nd Amendment wasn’t included under the concept of “Incorporation” until recently, with cases in the last decade. I think the 3rd still isn’t included under it, but that’s largely because there’s almost never cases about it, so no one has bothered arguing that it should be.

            1. At the time of founding, you think they intended states had free reign to ignore the bill of rights? Methinks you are mistaken.

              1. Mark, if someone with the gravitas of EscherEnigma says it’s so, then it must be so.

                1. “if someone with the gravitas of EscherEnigma says it’s so, then it must be so”
                  … it takes “gravitas” to know about history now?

              2. At the time of founding, you think they intended states had free reign to ignore the bill of rights?
                Pretty much, yeah.

                You have to remember that at the time the states were much closer to the sovereign entities they occasionally claim to be today. And the concerns with the Constitution and Bill of Rights wasn’t about whether or not it protected citizens from the fed, but whether it protected states from the fed.

                And yes, some early states did have state religions. There were also laws that you had to support and pay taxes to support the state church unless you could prove that you attended a different church instead.

                This was part of North Carolina’s argument a few years back that they did indeed have the right to establish a state religion.

                1. Who takes a college level civics course, one wonders, but I would be perfectly fine with going back to considering States as near-sovereign entities if that’s what an originalist interpretation would mean. I don’t necessarily concede the point, but I’m fine with the outcome taking your point as 100% valid.

                  Methinks that most of those ‘2nd amendment revisionist’ people would probably agree on that point, as well, but in the current air of overreaching federal power one easily understands why they hinge arguments on the Bill of Rights as well.

                  One is a cause, the other is presumably an effect so I’m not sure there’s really an equivalency there.

                  1. “Who takes a college level civics course, one wonders”
                    A lot of degrees have breadth requirements to make sure you have a solid foundation in domains outside your focus. So yeah, most of my course-load was in engineering and hard-science stuff, but I have a decent foundation in psychology, philosophy, and civics too.

                    And I think you missed my point. I’m not arguing for or against incorporation, I’m just pointing out that most folks trying to argue that it’s so simply and plain are deliberately ignoring both the immediate decades right after the Constitution was signed and the centuries that followed to argue that their preferred interpretation is the “one true” interpretation, all the while claiming they’re not interpreting.

                    Fact is, everyone likes a living constitution. We just disagree on what should be understood to be a part of it.


                    1. “Fact is, everyone likes a living constitution. We just disagree on what should be understood to be a part of it.”

                      Well, not everyone. As I said, I would find that to be a perfectly acceptable outcome.

                      Could they rest their arguments on the Originalist interpretation of the Constitution you mention? Yes. Would they lose automatically if they did? Also yes.

                      In other words, since the doctrine of ‘living document’ appears to have won the day, what use would it be in going to the Supreme Court who are literally the one’s who have decided on that method? I’d like to see it happen, just for the laughs, but if they don’t base their case on the 2nd Amendment we all know how it would go considering that even that consideration doesn’t win the day consistently.

                      The Supreme Court won, everyone else lost. Blaming the people petitioning the government for a redress of their grievances is basically victim shaming unless you sincerely believe a case brought under an Originalist interpretation has an ice cubes chance in hell of succeeding.

                      The proper recourse at this point in time is a Article V Convention of the States, really, because there is no hope for a redress at the Federal level any longer.

                    2. Could they rest their arguments on the Originalist interpretation of the Constitution you mention? Yes. Would they lose automatically if they did? Also yes.
                      Which is why it’s dishonest for them to claim that their Living Constitution argument is actually an Originalist one.

                      All I’m saying is that most people arguing “original intent” in regards to the 2nd Amendment aren’t actually using an “original intent” argument, they just think they are.

                    3. Fair enough I suppose, but the way you said it the first time around made it sound like a tu quoque. It still basically does sound that way, but you’ve clarified your point enough that I think it was just a misunderstanding.

                      Is it original to the founding, or is it original to when it was formally amended? Those are individual points in time and law that don’t have any particular relation to one another anymore, as expected of a document that can indeed be amended with far reaching consequence as exhibited by #14.

                      That doesn’t even get into how it was voted on and passed without the South’s voluntary involvement, which some might say invalidates that particular amendment anyway (of course, not the branch of government tasked with deciding validity. Surprise, surprise!)

                      Is it ironic that Lincoln’s efforts at preserving the Union ultimately will serve to destroy it? Maybe. But that’s more or less exactly what’s playing out. You can’t blame people who want to preserve their individual rights for seeking the only redress they still have available, but apparently you can blame them for not using the technically correct nomenclature. That’s a very libertarian thing to do, I’d say.

                    4. “You can’t blame people who want to preserve their individual rights for seeking the only redress they still have available […]”
                      … I hope you realize, that is exactly what you did in your original post.

                      “That’s a very libertarian thing to do, I’d say.”
                      Bite your tongue.

                    5. My original post was referring to elected officials within the government itself, rather than civilians, which I presumed would be evident from the fact that you and I can not actually propose Amendments to the Constitution at all.

                      Perhaps that was the misunderstanding, but frankly my original post was short enough that it invited this sort of thing.

                    6. Oh, and the ‘very libertarian thing to do’ comment applies to myself as well. It’s hard not to notice it seems to be a unifying trait of the group. ^_- It was a dig at all of us.

            2. & people still look to their state constitutions for some matters that overlap with the US one. Freedom of communication, for instance, is handled by language in many state constitutions that’s more explicit than the 1st Amendment is. (It’s boilerplate, so I think it was probably adopted very early by states & copied by those later admitted.)

            3. Incorporation can just as easily be used as an argument against “the living constituion.” Incorporation was an explicit recognition of what everyone was coming to realize: that the US Constitution trumped contrary State laws.

              It’s the same reason that the Civil War came to be fought. There were contradictions in the constitution that had to be resolved. I suppose one could (were one so inclined) argue that incorporation would’ve taken care of the slavery issue eventually. It was the intransigent wording of the Declaration of Independence, however, that carried so much weight in the minds of men that
              waiting around for something to “evolve” was not in the cards.

          2. Where can I read more about this?

            Maybe he has a newsletter.

          3. States could most certainly make laws re establishment of religion – until the late 1940’s. If you look at the original state laws re marriage (as well as the English laws re marriage), they are all explicit establishment of religion. The creation of a state license was based on a prohibition on preachers making those decisions on who they will marry. It is why every religion had to change its marriage vow to – ‘by the authority vested in me by the state of XX I now pronounce you man and wife’.

            That is explicit establishment – which should have been challenged in the late 40’s at the state level – but which has now morphed into federal establishment.

          4. Wikipedia.

            Let’s see the U.S. Constitution was ratified – Jun 21, 1788

            *New Hampshire had an established state religion until 1790 and until 1877 the New Hampshire Constitution required members of the State legislature to be of the Protestant religion.

            * Connecticut was officially Congregational until 1818.

            * From 1780 to 1833 Massachusetts had a system which required every man to belong to a church, and permitted each church to tax its members, but forbade any law requiring that it be of any particular denomination. This was in practice establishing the Congregational Church, the majority denomination.

            “Congress shall make no law respecting an establishment of religion”– the federal government can not require or prohibit establishment by the states.

            1. And that’s the ONE exception to the Bill of Rights being applied to the states from the beginning. In my eyes, states were never exempt from the Bill of Rights, except for the 1st amendment.

              1. You are wrong. The Bill of Rights was exclusively federal (and decided as such by the SC in Barron v Baltimore)

                until a)the 14th Amendment created ‘American’ citizenship and b)the Supreme Court ultimately decided challenges to state laws that violated them and in so doing ‘incorporated’ the Bill of Rights to state-level as well. Those specific cases were:

                Freedom of press – 1931
                Freedom of speech – 1925
                Establishment of religion – 1947
                Exercise of religion – 1941
                Freedom of assembly – 1937
                Right to petition – 1965
                Keep and bear arms – 2010
                Unreasonable search and seizure – 1961
                Warrant requirement – 1964
                Double jeopardy – 1969
                Protection against self-incrimination – 1964
                Taking of private property without just compensation – 1897
                Speedy trial – 1967
                Public trial – 1948
                Jury of peers – 1968
                Right to confront witnesses – 1965
                Assistance of counsel in capital cases – 1932 ; other felonies – 1963
                Cruel and unusual punishment – 1962

                1. Legally – the specific Bill of Rights provisions that have not been explicitly been deemed by the SC to apply to the states still do NOT apply to the states today. Which certainly includes quartering of soldiers (no cases) – excessive fines, jury trial in civil cases (specifically deemed not to incorporate in cases to date), and may include excessive bail (specific case is unclear).

                2. You are wrong. The Bill of Rights was exclusively federal (and decided as such by the SC in Barron v Baltimore)

                  smh

                  The Supreme Court also said that black people aren’t human. Anyone who said they were human was wrong. Until the Supreme Court said oopsie later, of course.

                  until a)the 14th Amendment created ‘American’ citizenship

                  The rights enumerated in the Bill of Rights do not depend on citizenship.

                  1. Until the Supreme Court said oopsie later, of course.

                    Yeah well like it or not – SC decisions apply as precedent (and thus LAW in common law) UNTIL they are actually overturned/changed. There is no such thing in law as ‘well that’s a stupid decision so we can ignore it because someday in many generations it will be overturned’

                    The rights enumerated in the Bill of Rights do not depend on citizenship.

                    No. But the federal government only acquires the ability to act on behalf of individuals if federal citizenship exists and is viewed as meaningful in some sense. It is no accident that the only ‘property’ provision in the Bill of Rights was incorporated to apply to the states 60-80 YEARS before many of the provisions that apply to individuals were deemed to apply to the states. Property is more important than individuals in our system.

                    1. Yeah well like it or not – SC decisions apply as precedent (and thus LAW in common law)

                      https://s3.scoopwhoop.com/raj/2805/andy.gif

                      This whole article is about how the constitution should be interpreted as a contrast to how it has been interpreted so far.

                    2. This whole article is about how the constitution should be interpreted as a contrast to how it has been interpreted so far.

                      Well guess what. The very IDEA of ‘incorporation’ is opposed by many of those who advocate ‘original intent’ because ‘incorporation’ is perceived as ‘judicial activism’. Many of them specifically want to roll back those cases (esp the evil activist Warren Court decisions in the 1960’s) – right back to Barron v Baltimore – so the Bill of Rights is, once again, EXCLUSIVELY federal.

                      eg Gideon v Wainwright (incorporates right to counsel in non-capital felonies). Viewed in ‘original intent’, the sole purpose of the 6th was to ensure that courts cannot prohibit a defendant from having a defense attorney. And Florida did not prohibit that. Further the SC had already decided (in Betts v Brady – 1942) that the 6th did NOT mean that an indigent defendant had to be provided with a court-appointed attorney. That is exactly as far as ‘original intent’ can go. By ‘original intent’ – Gideon v Alabama is not even heard by the SC or is decided the other way with no right to counsel.

                3. I appreciate the list, this is the ‘more reading’ that I requested above.

            2. From 1780 to 1833 Massachusetts had a system which required every man to belong to a church, and permitted each church to tax its members

              Germany still has this, sort of. You can leave the church, but then they won’t give you the wafer.

        2. Don’t confuse “original intent” with reading the text as written. Indeed the amendments listed did not apply to the states until incorporation, but after that point, the written word is that those amendments do apply.

          Madison et al. were not fools, nor imprecise in their words. They knew exactly what they were agreeing to say, and they said it clearly; all the reader has to do is make the effort to read it clearly.

          The “living constitution” tribe intentionally disregard the text because they don’t agree with it, not because they don’t understand it.

          1. Never trust anyone who wants to set aside the constitution for the sake of convenience for their agenda.

          2. Historically that’s how it worked out. However, only the first amendment explicitly limits only the federal government. In that lower government officials also are under oath to the constitution, they should have been oath-sworn and duty-bound to protect the rights granted to the people (and states in Amd 10) in the rest of the Bill of Rights.

            Note “An Act to regulate the Time and Manner of administering certain Oaths” was the first law passed by the Congress assembled after the ratification of the U.S. Constitution. The law applied to state officers.

            “The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution . . “.

            FYTY is the ultimate refuge of oath-breaking scum.

        3. What then is the intent of the 14th amendment as written in 1867? Didn’t it simply being applying the original intent of 1-8 to the states?

          1. begin, not being.

          2. That’s one of the arguments for Incorporation, yeah.

            But you have to ignore the actual text of the 14th, as well as how people at the time treated it, to claim that’s “simply” or “clearly” what it does.

            Or to put it another way… when you have over a hundred years of debating what something means, it obviously isn’t as obvious as you want.

        4. Incorporation wasn’t something pulled out of the air. The 14th amendment extended the rights of US persons to the states.

        5. Actually, “2nd Amendment” folks want a “Living Constitution” too. Otherwise, you’re stuck with the inconvenient tid-bit that in 1788, Amendments #1-8 didn’t apply to states.

          Which is mind boggling to me. If one reads the constitution it says that it’s the supreme law of the land. States ratified it. The supreme law of the land that states ratified says “the right of the people to keep and bear arms shall not be infringed” and “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated” etc. It doesn’t say anything about the states or feds. The states had to obey the Bill of Rights. The one exception is the 1st amendment and the language plainly makes it an exception, meaning the other ones can’t be.

          1. “Which is mind boggling to me.”
            Sure. But that’s with the privilege of 200+ years of retrospect.

            It’s like looking back, it’s easy to say “Pace v. Alabama (1883) was wrongly decided”. At the time however? Different world, different standards.

            My point wasn’t that Incorporation isn’t bad?, it’s that it obviously wasn’t part of the original intent, and there’s a great many people nowadays that have latched onto “original intent” without doing the proper research to find out what that would have actually meant. They just assume that their preferred interpretation was the “original intent” and go with it, ignoring every piece of evidence that says otherwise.
            ________
            ?Given the current balance of power between states and fed, I’d say it’s good. I can imagine different balances of power where I’d say otherwise. And in both cases, I’d prefer if it was it’s own explicit amendment, rather then a legal theory derived from the 14th Amendment.

            1. “Which is mind boggling to me.”
              Sure. But that’s with the privilege of 200+ years of retrospect.

              It’s like looking back, it’s easy to say “Pace v. Alabama (1883) was wrongly decided”. At the time however? Different world, different standards.

              Same words on the paper the whole time. It explicitly says that states are bound to it.

              Article 6 Section 2 : “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”

              1. … I invite you to invent a time machine and go back to 1788 and give everyone a good thrashing for not reading the constitution the same way you do.

                But no amount of insisting that things should have been a certain way will change the simple facts that they weren’t.

                1. OMG, I’m gonna flip a table. Are you the same obtuse nimrod as above?

                  That’s my point. That’s what I was saying. I’m saying that they had it fucking wrong that whole time and the constitution said so in plain English right there on the page. The words were sitting there the whole time. But they ignored it.

                  Your reply of “well then, why don’t you just go back in time and tell them they were wrong” is just moronic. Sorry, but it is.

                  1. Amusing, then, that they would ‘fix’ a thing that isn’t broken with an amendment that officially broke things for the next hundred and fifty years or so. Honestly? That sounds about right.

                  2. “I’m saying that they had it fucking wrong that whole time and the constitution said so in plain English right there on the page.”
                    Yes, I know that’s what you’re saying.

                    And to put it simply, it’s like you’re attacking J. K. Rowling saying “Dumbledore isn’t gay!”

                    You have your views on what it should mean. That’s fine and dandy as candy. Where you cross the line to “moronic” is when you insist that is what it has always meant, when it’s obviously not the case.

                    1. That’s fine and dandy as candy. Where you cross the line to “moronic” is when you insist that is what it has always meant, when it’s obviously not the case.

                      So how do you read Article 6 Section 2?

                    2. “So how do you read Article 6 Section 2?”
                      The relevant question isn’t how I read it. It’s how folks in 1788 read it. And as you’ve established, you disagree with them.

                    3. The relevant question isn’t how I read it. It’s how folks in 1788 read it.

                      Ok, I’m a pretty patient person, but I’m done with this idiocy.

                    4. I see it now, Escher is pulling a Clintonian ‘could you define the meaning of is’ here. I think it’s fair to light the ‘bad faith argument’ at this point.

        6. Not to mention the wholesale out-of-thin-air reinterpretation of the 2nd in Heller.

          1. Please, do elaborate.

            1. One doesn’t arrive at the majority decision in Heller by consulting either the plain text of the 2nd amendment or the legislative intent of the dead guys who came up with it. As someone who thinks a living constitution is both desired and inevitable, I say fair play to the gun nuts. I just wish they’d stop affixing the seal of originalism to the opinions they make up out of thin air. It’s not honest.

              1. So, you’re not even going to ask why it might have been that Heller was a court case in the first place? Interesting.

              2. One doesn’t arrive at the majority decision in Heller by consulting either the plain text of the 2nd amendment or the legislative intent of the dead guys who came up with it.

                Which specific aspect of the opinion do you have a problem with?

                My problem with the Heller opinion is right here: “There seems to us no doubt, on the basis of both text and history, that the Second Amendment conferred an individual right to keep and bear arms. Of course the right was not unlimited, just as the First Amendment ‘s right of free speech was not, see, e.g., United States v. Williams, 553 U. S. ___ (2008). Thus, we do not read the Second Amendment to protect the right of citizens to carry arms for any sort of confrontation, just as we do not read the First Amendment to protect the right of citizens to speak for any purpose.”

                Hmm, the right of the people shall not be infringed. Let’s look up some synonyms for “infringe.”

                infringe– synonyms: restrict, limit, curb, check, encroach on

                So the law literally says the right of the people to keep and bear arms shall not be limited and Scalia says, well, obviously the right can be limited.

              3. You speak of Heller, but you clearly have zero understanding of it. Do you even know what that case was about?

                I can wait while you Google it. Though I’m not sure if there is a pop up book version of it for an individual of your……..specific cognitive abilities.

        7. Some interpret all the Bill of Rights except the First Amendment, applying to the states. Correcting the misinterpretation of that is why the Fourteenth Amendment was adopted. See http://constitutionalism.blogs…..nt_12.html

        8. So if you’re going to an “original intent” regarding the 2nd Amendment? Then it’s 100% a federal issue, and not a state issue, meaning that states have free reign to decide what they want.

          But the text of it says, “the right of the people”, not, “Congress shall make no law….” Some of the federal BoR is explicitly about the national gov’t, some of it is explicitly not. Similarly, the 14th Amendment just refers to rights & privileges, and needs to be read in its own terms, not w.r.t. some cockamamie “incorporation” doctrine that reads into it some things that don’t really fit (like non-establishment of religion, which is not about the people’s rights) while leaving out other things that should be covered. if they’d wanted to make the 14th apply similarly to the states whatever the national BoR does, no more & no less, they could easily have written it to say so.

        9. The FIRST Amendment says “Congress shall make no law…”. The Second says “Shall not be infringed. and doesn’t limit that to Congress.

          In any case, the extension of Constitutional protections to the State level was accomplished with an Amendment.

      2. Yes, exactly. Rebel Scum hits the nail on the head below as well where he points out that if it can mean anything, than it means nothing. Obviously, that is the implicit goal of those who want this interpretational doctrine. It’s obvious when you look at the people who espoused this stuff over the past 100 years. They were almost to a man people who wanted more power, and were limited by the Constitution. Hardly surprising.

        It means what it says, and there is a method for changing what it actually says if they would ever care to try. Thankfully, they do not yet have that level of support but at the same time they’ve already won when considering how it’s interpreted. The Supreme Court were not meant to have the level of power they enjoy today, and we can thank the Progressives for that imbalance.

        1. I think it’s a good indication of how dead the “living” constitution has become when you look at the scarcity of meaningful constitutional amendments in the last 50 years. Rather than amend the constitution, you can just appoint judges to amend it for you.

          The 3 amendments ratified in the last 50 years were required because the language in the original constitution was much clearer on these subjects, and much harder to change through judicial review.

  2. Living, like a fixed rate mortgage?

    1. Living, like the terms of indenture for a GM bond or a Chrysler mortgage security in 2008.

  3. Should it be viewed according to its original meaning?

    Yes. If it can mean anything, then it means nothing.

    “living constitutionalism is the view that the legal content of constitutional doctrine does and should change in response to changing circumstances and values.”

    There is a method of amending the constitution written into the constitution.

    For better or worse, living constitutionalism is now one of the dominant methods of legal interpretation in American law.

    And we continue to sink further into totalitarianism as a result.

    1. Yes. If it can mean anything, then it means nothing.

      Being that it is meant as a constraint on power, I’m sure that is viewed as a feature and not a bug.

    2. Exactly right – the idea that the Constitution can be “re-interpreted” to mean something other than what it originally meant is just a means of amending the Constitution without all that hassle of getting 3/4 of the states and a majority in Congress to agree to it, it’s an end-run around the Constitution. If you don’t like what the Constitution says, if you think it’s no longer relevant to modern society, there’s a process for addressing that – amend the Constitution. The fact that in order to amend it you have to have an overwhelming amount of support for your contention that it’s no longer relevant or fails to address a given issue is a bug rather than a feature only if you have authoritarian leanings that lead you to be willing to impose your opinions on everybody else on the grounds that the majority of people are too stupid to know what’s for their own good and you don’t give a rat’s ass if they agree with you or not.

      1. So it would seem, were it not for the 18th & 21st amendments. Things seemed to swing back & forth pretty quickly!

    3. ‘In response to changing circumstances and values’

      That sounds a lot like situational ethics. Something that might be promoted by a sociopath.which explains a lot about progressives.

      1. It’s also another way of saying “okay, we all know that the Bill of Rights wasn’t supposed to cover women, blacks or children, but we’re gonna look the other way and pretend that when they said “people” they really meant what we mean as “people”.

    4. Yes, if the constitution is living then there is no rule of law anymore.

  4. Since most of the words and phrases dealing with the powers and the limits of government are vague and must in practice be interpreted by human beings…

    YEAH, NO SHITE. What a disaster that turned out to be. And the Commerce Clause is not only alive but grew up bigger and stronger than its genes should have allowed.

    1. The Commerce Clause is like the Warty of legal theory: seems innocuous when you first hear about it, but in the experience thereof turns out to be grotesquely mutated and willing to fuck anything.

  5. For better or worse, living constitutionalism is now one of the dominant methods of legal interpretation in American law.

    I’m gonna have to go with “worse.”

  6. “…In your dream, the Constitution is not a scam,
    In your dream, the Supreme Court is not a scam…”

    “Dreams[Matrix Blues]”:
    https://www.youtube.com/watch?v=imUywzx9I4M

    Regards, onebornfree

    1. Pirate Truther is back! Man, today rules.

      1. I’m so happy, I’m going to listen to MANOWAR!

  7. Living constitution is the PC word for trampling the constitution. The mechanism for change was built in through the amendment process. This is just an illegal work around.

    1. Yeah, but in defense of progressives, if you don’t do it right it doesn’t take as long.

      ?\_(?)_/?

      1. Well the path to the dark side IS supposed to be quick and easy.

  8. If someone wants to rewire the Constitution to bring it into the 21st century go for it. It would be better than letting a bunch of corrupt politicians and judges twist it meanings to suit their personal biases or in most cases for monetary gain. Our present government is so far out of touch with the original Constitution that it has become laughable.

  9. If we’re not viewing the Constitution (or any document, really) according to its original meaning when there is an amendment process in place, why does anyone bother writing shit down?

    1. That’s the essence of Barnett’s argument in “Restoring the the Lost Constitution”: if you’re not going to go with the written word, why both with them?

      1. I was just the other day for some reason reading an old NYT piece about Randy Barnett and his “novel” theory, one he had made up out of whole cloth and one that virtually no other Constitutional lawyer in the world agreed with, about how Obamacare and the individual mandate represented a new – and unconstitutional – expansion of federal power in compelled commerce. As one of the Supreme’s had asked in questioning, if the government can compel you to buy insurance, can the government compel you to buy broccoli? And the answer to that – after some hemming and hawing – was “well, yes, I suppose technically they could, but it’s not like the government would ever do something like that”. And this, to the NYT, was simply a well-established rule of law, a long-settled Constitutional issue that only some crackpot like Randy Barnett could raise. I’d like to think that a large part of the American public would disagree with the NYT’s assertion that the federal government having the power to compel you to buy something isn’t even an arguable fact and that people like Barnett protesting that the government does not in fact have that power are not on the far fringes of opinion.

      2. “if you’re not going to go with the written word, why both with them?”
        Maybe you should try reading about some cases where the SCOTUS strayed from “the written word” to understand why people were arguing for them to do that?

        For that matter, look up “Incorporation”, which is the legal argument that some of the protections from the Bill of Rights apply to states and not just the fed.

        Would it be better if we actually amended the constitution to make things explicit instead of derived? Sure. But when you have people actually disadvantaged (as you see in almost every case before the SCOTUS), why should they have to wait for justice??
        _______
        ?Even if you disagree with what they’re doing, that’s still what people are seeking.

        1. The problem is, if courts can ‘reinterpret’ the law for the sake of some ‘disadvantaged’ person, they are (often) effectively punishing another party (such as the one supposedly doing the disadvantaging) for doing something that isn’t illegal, but some judge thinks should be illegal.

          In which case, we are all obligated not merely to follow the laws that are written, but also to speculate about what laws some ‘progressive’ judge wants written because he thinks the laws are behind the times and to follow those too.

          This isn’t just a question of whether laws are just; it’s also a matter of people having a right to know whether something is legal or not. That’s arguably more important. I disagree with a law prohibiting wearing purple, but at the very least I deserve to know whether wearing purple is a legal so, just or not, I can act accordingly.

          1. “This isn’t just a question of whether laws are just; it’s also a matter of people having a right to know whether something is legal or not.”
            So the Judicial Branch is not a co-equal branch of government then?

        2. I have two problems with “incorporation”
          1. Some. (Why not all, as was written in amendments 2-10). If you want to incorporate parts of Amd. 1 to the states, why not just put that in the new amendment explicitly.

          2. Traitors that do not protect the rights of the people guaranteed in the constitution that they swore an oath to defend as a prerequisite of their office should be prosecuted as such.

  10. D.R. Thank you for the citation of Schechter Poultry Co. v. United States as well as the decision (9-0), year, and quote! This is handy info to have ready the next time the conversation turns to Wickard v Filburn, or indeed most other cases of legislative over-reach.

    Every kid (and future citizen) in my (unfortunately) mythical US history & civics class needs to spend at least a few hours going through the history of Schechter, the court packing scheme, and then Wickard. Even if taught by the most devout progressive out there, at least a few will certainly see very clearly exactly what happened and how much of an extortionist FDR really was.

    1. Actually I think what is needed is more nuanced history – not yet more BS hagiography and anti-hagiography. FDR is neither saint nor devil – and we render ourselves little more than rabid baboons if that is all we choose to learn about history.

      FDR moved from – http://www.lexrex.com/enlighte…..ddress.htm – a view of seriously limited federal govt – in 1930 to this – http://newdeal.feri.org/speeches/1932a.htm – an expansive view of federal govt – in 1932. He himself changed – and whether that change was dumb or not or what the circumstance/motivation/background was, that actuality of change is why history matters.

      1. Nuance is fantastic for those of us at one end of the bell curve in our interests in the subject. I’d just like to see a few more facts required as part of the basic knowledge base; even the mention of the court packing scheme would be nice.

        (Thx for the links btw)

      2. Interesting the first link… when not in power at the national level, he calls for less power at the national level. In the second link, as he campaigns for national office (President), he calls for more power at the national level. Is he changing, or just playing politics? Maybe not the devil, but but certainly not a saint either.

  11. Woodrow Wilson was a pompous asshole clusterfuck when he was President Of Princeton. He was a pompous asshole clusterfuck when he was President of the United States. I am not surprised he supported the ‘living Constitution’ narrative; he was the kind of smug academic who is always sure they know better than people like Adams and Jefferson. His continued presence on lists of “Greatest Presidents” is an insult to the likes of Lincoln.

    His headstone should be replaced with a urinal.

  12. Lots of people like ragging on the “Living Document” thinking.

    Here’s the thing though… if you actually go to “original intent”? Then the Bill of Rights doesn’t apply to states. That didn’t start happening until the late 1800s, and it’s still a legal game of “what does it really mean” whenever you talk about whether a specific right/liberty protected by Amendments 1-8 applies to a state or just a fed.

    Not to mention that Amendments 9 and 10 only make sense if it’s “living” in that new rights and liberties will be revealed as dramatically appropriate, and that they shouldn’t be disregarded just because they weren’t written down in 1788.

    So yeah. You may disagree with specific decisions, but I’m not sure I’ve ever met an “originalist” that actually meant it. Like everyone else, they just use their own “judicial philosophy” to justify why the decisions they like are good, but the ones they don’t like are bad.

    1. I would argue that the BoR *does* apply to states, but the feds have no role in enforcing it. The BoR isn’t law, it’s a statement of principle regarding those natural rights with which man is endowed by his creator. As such, the Constitution specifically forbids the feds from infringing the RTKBA, for example, but it does not forbid the state of New York from infringing your RTKBA. But the RTKBA in the BoR is an admission that it’s a natural right, not granted by either the Constitution or the state of New York.

      The issue of including the BoR at all was contentious – some argued that we needed it because the natural course of government is to deprive the citizenry of their liberty, others argued that including a BoR would imply these were the only rights off-limits to government and all else was fair game. They were both right – the Ninth and Tenth were included for just that reason and both the Ninth and Tenth don’t mean shit.

      So your RTKBA was specifically included in the federal constitution but not in the New York constitution – does that mean you have a RTKBA or not? If you do, New York can’t rightfully infringe it whether or not it’s included in their Constitution any more than the feds rightfully could whether or not it was included in the BoR.

      Of course, this is all academic as the only real rights anybody’s ever got is the rights they’re willing to kill and die for and the government is far more sanguine than the citizenry on that point.

      1. The BoR isn’t law

        The fuck it’s not. It’s the supreme law of the land.

      2. So your RTKBA was specifically included in the federal constitution but not in the New York constitution – does that mean you have a RTKBA or not?

        Yes. Obviously. And it doesn’t matter whether it’s written down or where. I just don’t understand why it’s such a quandary.

      3. the only real rights anybody’s ever got is the rights they’re willing to kill and die for

        No, they’ve only got the rights they’re good at killing other people for. Being willing to die doesn’t get them anywhere, nor does being willing to kill; it takes actual killing (or the threat thereof) and success at it. In fact, being willing to die hurts; it helps to be unwilling to die. After all, if you’re willing to die, they’ll be glad to oblige, & why should they allow you any rights rather than killing you, which is more straightforward?

  13. living constitutionalism + judicial deference = totalitarian government

  14. I first encountered the term “living constitution” in elementary school back in the 60s.

    So, it was part of the teachers’ college civics curriculum even before then.

  15. What’s the proper method for interpreting the U.S. Constitution?

    Like any law. You read the words that are on the page. Start with that.

    There is no “legislative intent” because the individuals involved in crafting the law all had different intentions. Even if there was legislative intent, then it should be clear as day when reading the words. If it’s not clear as day, then the legislature failed. And, you can’t try to determine legislative intent by using something other than the law because now you’ve nullified the law and something that isn’t the law is being treated as the law.

    If legislators are going to make all this fuss about what words make it onto the paper and then everyone votes on the words on the paper, then the words on the paper are the law. Maybe they’re vague and can be interpreted in more than one way, and that’s fine, but trying to make law from what you think the legislators intended is incorrect.

    1. Beyond legislative intent, for amendments you have to consider the ratifiers intents also.

      1. Anyone who votes to enact a law, whether it be the legislator or ratifier, will have their own individual reason to do so. Their reason for voting for the law should have nothing to do with future enforcement or interpretation of the law. Only what they voted for should have the force of law, not what they wanted to vote for or thought they were voting for.

        And no, you shouldn’t have to look anywhere else but the law itself, ie the words on the page, to find the intent of the law. If you can’t figure it out based on the wording, then it’s a terrible law and practically self-nullifying.

        1. The trouble is, what if a legal document, whether contract, edict, etc., self-nullifies. What do you do then about the controversy that’s then in court? Gotta decide something, unless you just tell the parties to shoot it out.

  16. RE The Birth of the Living Constitution
    Should we interpret the Constitution as a living document?

    Of course we should interpret the US Constitution as a living, breathing document since it was born in the late 18th century.
    Can you imagine how many social security checks that is?

  17. Principals vs. principles. Turns out the constitution wasn’t so living Wilson turned into a rutabaga. We had to amend it so we wouldn’t get a repeat of his squeeze deciding she was president.

  18. The big problem with the “dead” constitution is not only that it would cease to be a useful document if it only referred to the social and technological circumstances of the 18th century, it’s that you cannot possibly know for certain what much of it means even in that context. Cruel and unusual? Does it say we’re only meant to apply that according to 18th century standards? Would that be an imposition on the constitution just as much as claiming we’re supposed to update it with the times?

    For the most part “dead” constitutionalism just wants to affix the imprimatur of the founding fathers as a means to unjustifiably stop the conversation, in other words, “I’m right because I say so. And by that I mean James Madison. But by James Madison I mean me.”

    1. If you feel a need to change it, there are two specific means to do so. Of course, neither method is easy. Nor will it allow your small, shrill minority the means to dominate the masses.

  19. Cruel and unusual? Does it say we’re only meant to apply that according to 18th century standards?

    Obviously not. The words are vague enough to be re-interpreted over the years. It’s obvious just by reading it that this is intentional.

    Other parts of the constitution are not nearly as vague and some are pretty explicit. Doesn’t seem to matter, because despite their unambiguous language, they have been interpreted away and new governmental powers have been granted despite the lack of anything in the constitution that would grant that power.

    1. threading fail

      meant to be a reply to Tony (3:39 pm).

  20. Should it be viewed according to its original meaning? Or should the document be viewed in the light of contemporary conditions?

    Can’t it be both? It should, of course. It should be viewed according to its original meaning in the light of contemporary conditions. What kind of swindle is it to make us think those desiderata are incompatible?

  21. There is a place for some latitude of interpretation, as in recognizing that a letter or web page is a kind of “press”. But not in recognizing a power to penalize things that (might) have an effect on interstate commerce. That crosses the line.

  22. The United States of America is a Constitutional Republic under LAW!
    Law has never been defined! It has been renamed and usurped by rules/”laws” (legislation, decrees, and “rulings”).

    It was expected that the Constitution would be redone within 20 years or so. (women being legally chattal? 1/3 of the population being legally enslaved?? {both of these “conditions” being “God Ordained” in the then current interpretation of the dominant religion} Of course we could not consider the “savages” that owned all the lands West to be persons, for that would complicate the killing and stealing of their lands,,, “legally”.

    Are we still so ignorant and cruel?

    If the Constitution as the format for governmental form is honored (?), then the three branches are “self regulating”. If the so called “Bill of Rights” are seen to be the LIMITS on the authority and autonomy of the Federal Government, their employees, and contractors that they were clearly stated to be. And, Law were to be codified as something akin to “do all you have agreed to do and do not encroach on other persons or their property”. Then and only then the political hacks and “attorneys” would not be able to create such chaos socially and call it “legal”. Corporations could not buy the government for Law would not allow for the “legislation” and rules.

    Hold the Oath takers to being Oath keepers by recognizing that the Oath of Office is a legal and binding contract!

  23. It’s alive! Change it if you want but follow the law and do it according to the Constitution.

  24. What’s Really Going on in Oregon! Taking Back the Narrative ! KrisAnne Hall – Time to stop being led by the media.. The Federal government is operating outside the supreme law of the law..Executive Actions are lawless.. There is no pen or phone big enough to alter the US Constitution..The Supreme Court is not the ultimate arbitor of the Constitution…The States are!!
    https://www.youtube.com/watch?v=T424sWq1SkE

  25. Of course the constitution is a “living” document. It was designed to be so. As times change and enough people feel the need for a different approach, the founders built in 2 ways to change it.

    Problem is, some folks like TR, Wilson, FDR and the Progressives gave up on those means after the succesful passage of the 16th and 17th amendments and simply prefer to ignore it completely…

  26. Of course the constitution is a “living” document. It was designed to be so. As times change and enough people feel the need for a different approach, the founders built in 2 ways to change it.

    Problem is, some folks like TR, Wilson, FDR and the Progressives gave up on those means after the succesful passage of the 16th and 17th amendments and simply prefer to ignore it completely…

  27. This is a very scary road down to hell. If the Constitution is a living document, then any willy nilly judge can start giving his own feeling of what it means and then we have no solid document of rule of Government to keep Government from intruding in our lives. The Government of the people then become tyrants. Isn’t this why our founders left their Countries? We need to be extremely careful about letting common people and judges changing what is clearly written in Constitution. This document has served our Country quite well so when it isn’t broken—–DON’T FIX IT.

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