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07/25/2022

Larry Solum's Legal Theory Lexicon: Living Constitutionalism [Updated]
Michael Ramsey

At Legal Theory Blog, Larry Solum has this entry in the "Legal Theory Lexicon": Living Constitutionalism.  From the introduction: 

Constitutional discourse in both the academy and the public sphere has recently included quite a bit of talk about "originalism."  But what about originalism's great historic rival, "living constitutionalism?"  What is living constitutionalism and how is it different from originalism?  A preliminary answer to that question can be offered in the form of a simple definition:

Living Constitutionalism:  Living constitutionalism is the view that the legal content of constitutional doctrine does and should change in response to changing circumstances and values.

This entry in the Legal Theory Lexicon will examine the history of living constitutionalism, discuss the question as to how and whether it differs from originalism, and briefly explore some of the main forms of contemporary academic living constitutionalism. ...

And some interesting history:

The phrase “living constitutionalism” seems to be derived from the title of a book by Howard Lee McBain, The Living Constitution, first published in 1927.  This slim volume ranges across a variety of topics, and it was not intended as rigorous constitutional theory.  The following passage illustrates McBain’s notion of a living constitution:

“A word”, says Mr. Justice Holmes, “is the skin of a living thought.”  As applied to a living constitution the expression is particularly apt; for living skin is elastic, expansile, and is constantly being renewed.  The constitution of the United States contains only about six thousand word; but millions of words have been written by the courts in elucidation of the ideas these few words encase.

In 1936, Charles Beard echoed McBain’s title in an essay published in the Annals of the American Academy of Political and Social Science.  Beard wrote,

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, it follows that the Constitution as practice is a living thing. The document can be read at any moment.  What the judges and other expounders have said in the past can be discovered in thousands of printed pages.  From the records of history, we can get some idea of past practices under the instrument. But what the Constitution as practice is today is what citizens, judges, administrators, lawmakers, and those concerned with the execution of the laws do in bringing about changes in the relations of persons and property in the United States, or in preserving existing relations.  It is the living word and deed of living persons, positive where positive, and subject to their interpretation where open to variant readings. How could it be otherwise? How could intelligence, as distinguished from sophisticated interest, conceive the document as practice in any other terms?[

Another important formulation was provided by Charles Reich in his 1963 article, Mr. Justice Black and the Living Constitution:

[I]n a dynamic society the Bill of Rights must keep changing in its application or lose even its original meaning. There is no such thing as a constitutional provision with a static meaning. If it stays the same while other provisions of the Constitution change and society itself changes, the provision will atrophy. That, indeed, is what has happened to some of the safeguards of the Bill of Rights. A constitutional provision can maintain its integrity only by moving in the same direction and at the same rate as the rest of society. In constitutions, constancy requires change.

And a fourth influential formulation of living constitutionalism was offered in 1986 by Justice William Brennan:

To remain faithful to the content of the Constitution, therefore, an approach to interpreting the text must account for the existence of the substantive value choices and must accept the ambiguity inherent in the effort to apply them to modern circumstances.  The Framers discerned fundamental principles through struggles against particular malefactions of the Crown: the struggle shapes the particular contours of the articulated principles.  But our acceptance of the fundamental principles has not and should not bind us to those precise, at times anachronistic, contours.

The opponents of living constitutionalism offered their own definitions: for example, in 1976, then Associate Justice William Rehnquist wrote The Notion of a Living Constitution, which explicitly criticized living constitutionalism and implicitly endorsed originalism based on the writings of the framers. ...

Like "originalism," the term "living constitutionalism" is best viewed as the name for a family of theories, some of which are explored below. Our next step is to explore the relationship between originalism and living constitutionalism. ...

Somewhat lost in these excerpts and what follows is what I consider to be the essential postulate of living constitutionalism: that judges should impose what they believe to be the best constitutional rules for modern society, taking into account modern circumstances and moral visions.  Some versions of living constitutionalism are more forthright about this claim than others, but in my view all versions of living constitutionalism reduce in large part to this fundamental proposition.  That doesn't mean that living constitutionalism is normatively inappropriate; it means only that living constitutionalism (of whatever variety) must defend this core proposition.

As an aside, almost all of the criticisms of recent Supreme Court decisions in popular commentary claim that the Justices are simply imposing their own practical and moral intuitions as constitutional rules.  If that's true, it only means that the Justices (implicitly) have adopted living constitutionalism.  And that's a bad thing only if living constitutionalism is a normatively inappropriate approach to constitutional interpretation.

UPDATE:  Eric Segall comments:

As I wrote in 1998, the first use of the phrase living constitutionalism actually was in a law review article (in two parts) by Arthur W. Machen in 1900. That article was directly about originalism, our changing constitution, and living constitutionalism.