Wanted Dead or Alive: The U.S. Constitution
Graphic by Taylor Whirley
"Hold on, my friends, to the Constitution and to the Republic for which it stands. Hold on to the Constitution, because if the American Constitution should fail, there will be anarchy throughout the world." This sentiment, as dramatized by Daniel Webster, is one felt by many Americans as we move through periods of significant change and transition. There are two pairs of hands, each holding onto one side of the Constitution: one trying to preserve it in a box, unchanged, and one trying to break the box and rectify it.
The ambiguous nature of the U.S. Constitution is not new; arguments about what to do about this document existed before there were terms coined to identify each side's argument. From its birth, the Constitution has had people rooting for and against it. The first constitution, the Articles of Confederation, had many problems, from a lack of power enforcement to the inability to regulate commerce. The Constitutional Convention set forth to ratify the Constitution with the help of state delegates. Three months later, the new Constitution was arranged into its final, twenty-three-article form and signed by thirty-eight state delegates. This initial change from the Articles of Confederation to our current-day Constitution was the first time controversy was sparked surrounding our country's foundational document.
The debate surrounding the Constitution is divided into two groups: one arguing that the constitutional text is fixed, also known as originalists, and the group that believes constitutional law should evolve for the changing circumstances in our country, also known as living constitutionalists. The term "living constitution" is only a characterization; the interpretation that it calls for is known as judicial pragmatism. This philosophy gained traction during the Progressive Era when people felt the rights they were fighting for were being hindered by overbearing legislative bodies. Though Howard Lee McBain officially emanated the term, Woodrow Wilson introduced the idea in his presidential campaign, saying, "in an era when 'evolution,' is the scientific word to interpret the Constitution according to the Darwinian principle; all [progressives] ask is recognition of the fact that a nation is a living thing and not a machine." The nuance of the issue comes from the inevitable changes that our Founding Fathers could not have predicted and a need for constitutional interpretation that supports these changes. The "Living Constitution" is not a precise mode of construction but rather an overarching vision of a Constitution whose terms are harmonious and changing with the needs of society. The question is not whether making amendments is possible but whether people are willing to accept a Constitution that adapts to new circumstances. The notion of a "living" constitution is one that the United States should adopt in the interest of maintaining stability and success and remaining loyal to the principles the document initially set out to uphold.
In 2003, former Supreme Court Justice Stephen Breyer expressed concern about the modern context of the Constitution, saying, "our Constitution and how it fits into the governing documents of other nations, I think will be a challenge for the next generation." This challenge has since been amplified by judicial and legislative issues requiring an interpretation of the Constitution. Most proponents of the living Constitution believe that the document was written broadly to accommodate the change our nation would experience over time. In his draft of the Constitution, Edmund Randolph wrote,
"Two things deserve attention: To insert essential principles only; lest the operations of government should be clogged by rendering those provisions permanent and unalterable, which ought to be accommodated to times and events: and to use simple and precise language, and general propositions, according to the example of the constitutions of the several states."
Living constitutionalists take Randolph's inclusion of the basic principles and simple language as a way for the words to be rewritten and reinterpreted. Laws must be fixed so people can follow them, but the Constitution is more than a set of laws. It is a source of foundational concepts that society must be governed by to be successful. Similarly, the meaning of "liberty" has not changed since 1791, but what we recognize today as liberty is not wholly compatible with what was recognized as "liberty" two centuries ago. Living constitutionalism ensures that our modern-day liberties are protected because the Constitution is viewed as a less rigid, more evolutionary document.
An application of the Living Constitution framework is evident in the 1958 Supreme Court case Trop v. Dulles. The ruling was that the words in the Eighth Amendment regarding cruel and unusual punishment are "not precise" and must "draw [their] meaning from the evolving standards of decency that mark the progress of a maturing society." This is the heart of living constitutionalists' philosophy: that the Constitution's terms should reflect current societal norms and be subject to interpretation. Originalists, or those who believe the Constitution is binding and should not be subject to any interpretation, say that the Constitution should be a rock-solid foundation and that our basic principles must remain constant. Associate Justice Antonin Scalia disclosed his opposition to a living constitution, saying, "Our statutes don't morph. They don't change meaning from age to age to comport with whatever the zeitgeist thinks appropriate." The Living Constitution was characterized by Justice Scalia and other originalists as an inherent disregard for constitutional language. However, since living constitutionalism is not a detailed practice but a more general philosophy, the constitutional language Scalia refers to is not meant to be ignored but read contemporaneously.
To deny that there are any dilemmas presented in the original Constitution and that there is no need for adapting or changing, which is what the most aggressive originalists believe, is to say that what was written two centuries ago still perfectly applies to what we deal with today. For example, the First Amendment was initially understood as the protection of speech, whether it be on street corners or in newspapers. This does not account for the freedom of speech people express online now. People take to social media platforms to express their opinions in a way that is not explicitly mentioned in our freedom of speech doctrine because that freedom of speech was nonexistent at the time of its creation. There must be a certain degree of elasticity imparted with the idea of our Constitution because the founders' original intent is too indeterminate to follow it word-for-word. As former Judge Richard Posner asks, "Does anyone really believe, in his heart of hearts, that the Constitution should be interpreted so literally as to authorize every conceivable law that would not violate a specific constitutional clause?"
Sticking to originalism tends to lead to politically conservative results. The word conservative holds a double meaning because it first implies the desire to "conserve" the Constitution; however, there is a deeper implication because the results of an originalist stance are inevitably politically conservative. For example, former President Donald Trump released the 1776 Commission Report, a forty-five-page document outlining how to "restore understanding of the greatness of the American founding." This document contains chapters about the misconception and miseducation of slavery, fascism, identity politics, and more. In the section titled "Progressivism," Trump details the history of progressive ideology and how Progressives "believed that America's original 'software'—the founding documents—were no longer capable of operating America's vastly more complex 'hardware.'" Trump implies the harm in adopting this belief and why the founding documents are still meant to be interpreted as they were in 1776. At its core, however, living constitutionalism asks for a dynamic perspective on civil liberties in order to continue the effectiveness of the Constitution.
While the Founding Fathers are the flagship of our country and there is no denying their seemingly immortal presence, it does not seem entirely democratic to have the dead still ruling over the living — especially when the dead are white men who made laws that represented a much smaller, much more agrarian society. While it is necessary to refer to the original clauses and amendments in the Constitution, there must be some room for interpretation; otherwise, there will be no growth in a nation that must reflect the inevitable societal developments we see around us. Originalism is inconsistent with Brown v. Board of Education and other landmark decisions that our modern-day country had to adapt to. To interpret the Constitution word-for-word with no room for adaptation would be insufficient for modern-day politics. In order to obtain a flourishing democracy, we must take initial precedents such as "all men are created equal" and evaluate what that really means.
Our country will inevitably keep changing, and our interpretation of the constitutional law must change with it to have a document that reflects our developing nation. The feasible solution we have come to realize is the ancient source of common law. Common law is the law that comes from judicial rulings that arise as a precedent. This system is based on traditions and precedents acquired over time instead of a singular, sacred text. These traditions and precedents are what create adaptation, but only in a certain way that is impervious to human manipulation. Living constitutionalism is not asking to eradicate the Constitution and start from scratch; the difficulty comes from needing a living, changing Constitution but also a stable, foundational set of laws to live by. A common law Constitution is "living," and yet still protects the fundamental principles that are the pillars of America. Having a living, breathing Constitution that adapts to our societal developments while also withstanding the test of time is not just something we can do but must do. Being open to interpreting the words written two centuries ago is something modern nations are already doing and will continue to do as time goes on.