LIVING CONSTITUTION

Living Constitution - Wikipedia

The Living Constitution, or judicial pragmatism, is the viewpoint that the U.S constitution holds a dynamic meaning even if the document is not formally amended. The Constitution is said to develop alongside society's needs and provide a more malleable tool for governments. The idea is associated with views that contemporary society should be considered in the constitutional interpretation of phrases.^[1] The Constitution is referred to as the living law of the land as it is transformed according to necessities of the time and the situation.^[2] Some supporters of the living method of interpretation, such as professors Michael Kammen and Bruce Ackerman, refer to themselves as organists.^[3][4][5][6]

The arguments for the Living Constitution vary but 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 so an evolving interpretation is necessary.^[7] 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.

Opponents often argue that the Constitution should be changed by an amendment process because allowing judges to change the Constitution's meaning undermines democracy. Another argument against the Living Constitution is that legislative action, rather than judicial decisions, better represent the will of the people in the United States in a constitutional republic, since periodic elections allow individuals to vote on who will represent them in the United States Congress, and members of Congress should (in theory) be responsive to the views of their constituents. The primary alternative to a living constitution theory is "originalism." Opponents of the Living Constitution often regard it as a form of judicial activism.

The earliest mentions of the Constitution as "living," particularly in the context of a new way of interpreting it, comes from Woodrow Wilson's book Constitutional Government in the United States^[15] in which he wrote:

Living political constitutions must be Darwinian in structure and in practice.^[16]

Wilson strengthened that view, at least publicly, while he campaigned for president in 1912:

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.^[17]