Living Constitution

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Constitutional law of the United States
Overview
Articles Amendments History Judicial review
Principles
Separation of powers Individual rights Rule of law Federalism Republicanism Equal footing Tiers of scrutiny
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Individual rights
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Theory
Living Constitution Originalism Substantive due process Political process theory Judicial restraint Purposivism Textualism Strict constructionism Common good constitutionalism
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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 organicists.^[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.

Legal theorist Martin David Kelly argues that the question of whether a provision of a constitution (or of legislation, or of other kinds of texts or 'utterances' more generally) should be given its original or current meaning (the 'meaning issue') arises only if it is capable of applying across time (i.e. its application is not limited to the moment in time when it was made).^[8] Kelly argues that most constitutional (and statutory) provisions are 'always speaking' - they are operative on an ongoing basis, indefinitely - and so the meaning issue is a live one; but that some constitutional (and statutory) provisions are 'momentary' and so there is no basis for giving them a dynamic meaning. This point, Kelly argues, undermines some leading arguments against dynamic interpretation.