With 4 million people, legal slavery and an average life expectancy of just 38 years, the America of 1787 was unimaginably different from today's United States. Yet, more than 230 years after it was originally drafted, U.S. citizens still abide by the Constitution's founding principles.
Of course, the document that now resides in the National Archives is as dead as the paper it's written on, but the "living document" interpretation of its governing power attempts to explain how the Constitution evolves, even without necessarily being formally amended.
U.S. Constitution Basics
From the days of its inception at the Philadelphia Convention, the Constitution was made to be amended. However, amendments aren't the core of the living document interpretation. Rather, this reading of the Constitution posits that the document as written essentially meets the needs of a changing society without being majorly changed itself. In essence, changes in society naturally re-frame the Constitution's meaning.
In the words of the late Supreme Court Justice Antonin Scalia, "...the Constitution is not static. It doesn't mean what the people voted for when it was ratified. Rather it changes from era to era to comport with [...] 'the evolving standards of decency that mark the progress of a maturing society.'"
Read More: What Is a Constitutional Provision?
"Living Document" Criticisms
Perhaps the most resounding criticism of the living document reading is that the historical context of the document itself – which was originally crafted in an era rife with policies considered unacceptable today, from slavery to rampant sexism – is often at odds with a contemporary society that has changed radically.
Those who oppose the living document viewpoint often prefer to actively change the Constitution via amendments rather than to re-frame it via personal interpretation. Some critics contend that, given its malleable nature, judges can exploit or manipulate the living document interpretation to prop up personal values.
The Flip Side of the Living Document
In direct contrast to those who interpret the Constitution as a living document, people who identify as originalists, or textualists, follow the original words of the Constitution just as those words were meant when they were committed to paper.
This take on the Constitution does not, of course, discount amendments, which it regards as values that represent a significant consensus. If an amendment was adopted in 1804, for instance, originalists believe it means whatever the people of 1804 believed it to mean, rather than what the people of 2018 believe it to mean. Originalists believe that if those in 2018 want to change the Constitution, they must get ratification of an amendment rather than wait for a judge to interpret it under a lens of modern society.
Why is the Constitution considered a living document? Some believe that this fundamental document can be interpreted dynamically, as a reflection of current society, rather than as written in the 18th century, when the world was a different place.
- National Archives: Constitution of the United States – A History
- The Morning Call: In The America of 1787, Big Families Are the Norm and Life Expectancy Is 38
- The University of Chicago: The Law School: The Living Constitution
- US Legal: Living Constitution Law and Legal Definition
- International Human Rights in Context: Law, Politics, Morals