What is a Living Constitution?

Toni Henthorn

The phrase living Constitution refers to a concept that the framers of the United States Constitution wrote the document in sufficiently straightforward and general terms to allow judges to reflect upon and take into account changes to current society while adhering to the foundational intent of the framers. Most justices agree that the writers of the Constitution prudently chose to pen this document in general terms so that modern-day 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 on the case, Missouri versus Holland. A second, and more controversial, view of a living Constitution contends that when the elected legislative and administrative agents of the government fail to redress a wrong or solve a particular social problem, then the courts may act to remedy the situation through the process of judicial review. This practice allows judges to introduce their own experiences and viewpoints into the process of statutory interpretation.

The US Constitution.
The US Constitution.

Proponents of a living Constitution argue that the framers of the Constitution did not provide for a set procedure for interpretation of the document. They believe that the absence of guidelines reveals that the framers desired to allow considerable latitude in the application of Constitutional rights. Living Constitution supporters also point out that if judges see the Constitution as rigidly inflexible, then the nation would be required to amend it continually or ignore it altogether as irrelevant to contemporary life. Rather, the Constitution should be considered a conceptual foundation of ideas upon which a society may establish its government, but it should not be viewed as a prescribed directive.

Most justices agree that the Constitution was written so that modern-day justices can still apply its precepts to changing laws, attitudes, and conditions.
Most justices agree that the Constitution was written so that modern-day justices can still apply its precepts to changing laws, attitudes, and conditions.

Opponents of a living Constitution framework for constitutional interpretation state that the framers did not provide a method for adapting the Constitution to modern-day societal views. They argue that the framers intended that changes in law occur by the actions of the other two elected branches of the government. The role of the judicial branch is simply to clarify and apply the laws as they exist unless those laws clearly violate the Constitution. If a law is not unconstitutional, just simply unpopular with some, the judicial branch cannot intervene without a Constitutional amendment. To do otherwise would violate the framers’ intent that the branches of government have separate delineated powers.

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Discussion Comments


"Brown v. Board" wasn't the only example of how judicial review was integral to the Civil Rights Movement. The Supreme Court struck down laws against interracial marriage, for example.

But, keep in mind that judicial review has not always resulted in positive social change. For example, it was the supreme court that found that segregated schools were fine in the first place. The "separate but equal" terminology that allowed states to segregate schools came directly from the case of "Plessy v. Ferguson" in 1896.

That's not a criticism -- just a fact. Proponents of judicial review love to point out the positive results from it, but you can't have a discussion about the concept without pointing out the failures of the Court, too.


Whether you happen to love judicial review or not, a lot of the social norms that we accept as common sense ways of doing things today are a direct result of judicial review.

Take desegregation, for example. Had the Supreme Court not found segregated schools a violation of the 14th Amendment to the U.S. Constitution when it heard "Brown v. Board of Education", would the civil rights movement have gotten going as soon as it did?

Hopefully, we can all agree that segregated schools were a terrible idea and the Civil Rights Movement was essential in this country. You simply cannot discuss the civil rights movement without addressing the Supreme Court's role in the effort, and that effort really started with the application of judicial review.

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