The Living Constitution, or judicial pragmatism, is the viewpoint that the
United States Constitution
The Constitution of the United States is the Supremacy Clause, supreme law of the United States, United States of America. It superseded the Articles of Confederation, the nation's first constitution, in 1789. Originally comprising seven ar ...
holds a dynamic meaning that evolves and adapts to new circumstances 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
A constitution is the aggregate of fundamental principles or established precedents that constitute the legal basis of a polity, organisation or other type of entity and commonly determine how that entity is to be governed.
When these princip ...
of phrases. 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. Some supporters of the living method of interpretation, such as professors
Michael Kammen and
Bruce Ackerman
Bruce Arnold Ackerman (born August 19, 1943) is an American constitutional law scholar. He is a Sterling Professor at Yale Law School. In 2010, he was named by '' Foreign Policy'' magazine to its list of top global thinkers. Ackerman was also am ...
, refer to themselves as organists.
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. The second, relating to
intent
Intentions are mental states in which the agent commits themselves to a course of action. Having the plan to visit the zoo tomorrow is an example of an intention. The action plan is the ''content'' of the intention while the commitment is the ''a ...
, 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
The United States of America (U.S.A. or USA), commonly known as the United States (U.S. or US) or America, is a country primarily located in North America. It consists of 50 states, a federal district, five major unincorporated territorie ...
in a constitutional republic, since periodic elections allow individuals to vote on who will represent them in the
United States Congress
The United States Congress is the legislature of the federal government of the United States. It is bicameral, composed of a lower body, the House of Representatives, and an upper body, the Senate. It meets in the U.S. Capitol in Washing ...
, 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
In the context of United States law, originalism is a theory of constitutional interpretation that asserts that all statements in the Constitution must be interpreted based on the original understanding "at the time it was adopted". This conc ...
." Opponents of the Living Constitution often regard it as a form of
judicial activism
Judicial activism is a judicial philosophy holding that the courts can and should go beyond the applicable law to consider broader societal implications of its decisions. It is sometimes used as an antonym of judicial restraint. The term usually ...
.
History
During the
Progressive Era
The Progressive Era (late 1890s – late 1910s) was a period of widespread social activism and political reform across the United States focused on defeating corruption, monopoly, waste and inefficiency. The main themes ended during Am ...
, many initiatives were promoted and fought for but prevented from full fruition by legislative bodies or judicial proceedings. One case in particular, ''
Pollock v. Farmers' Loan & Trust Co.'', enraged early progressive activists hoping to achieve an
income tax
An income tax is a tax imposed on individuals or entities (taxpayers) in respect of the income or profits earned by them (commonly called taxable income). Income tax generally is computed as the product of a tax rate times the taxable income. Tax ...
. That led progressives to the belief that the Constitution was unamendable and ultimately for them to find a new way to achieve the desired level of progress. Other proposals were considered, such as making the
amending formula easier.
Origins
The phrase originally derives from the title of a 1927 book of that name by Professor
Howard Lee McBain,
and early efforts at developing the concept in its modern form have been credited to figures like
Oliver Wendell Holmes Jr.
Oliver Wendell Holmes Jr. (March 8, 1841 – March 6, 1935) was an American jurist and legal scholar who served as an associate justice of the Supreme Court of the United States from 1902 to 1932.Holmes was Acting Chief Justice of the Un ...
,
Louis D. Brandeis, and
Woodrow Wilson
Thomas Woodrow Wilson (December 28, 1856February 3, 1924) was an American politician and academic who served as the 28th president of the United States from 1913 to 1921. A member of the Democratic Party, Wilson served as the president of ...
. The earliest mentions of the Constitution as "living," particularly in the context of a new way of interpreting it, comes from
Woodrow Wilson
Thomas Woodrow Wilson (December 28, 1856February 3, 1924) was an American politician and academic who served as the 28th president of the United States from 1913 to 1921. A member of the Democratic Party, Wilson served as the president of ...
's book ''Constitutional Government in the United States'' in which he wrote:
Living political constitutions must be Darwinian in structure and in practice.
Wilson strengthened that view, at least publicly, while he campaigned for president in 1912:
Society is a living organism and must obey the laws of life, not of mechanics; it must develop. All that progressives ask or desire is permission - in an era when "development," "evolution," is the scientific word - to interpret the Constitution according to the Darwinian principle; all they ask is recognition of the fact that a nation is a living thing and not a machine.
Judicial pragmatism
Although the "Living Constitution" is itself a characterization, rather than a specific method of interpretation, the phrase is associated with various non-originalist theories of interpretation, most commonly judicial pragmatism. In the course of his judgment in ''
Missouri v. Holland
''Missouri v. Holland'', 252 U.S. 416 (1920) is a United States Supreme Court decision on the extent to which international legal obligations are incorporated into federal law..
The case centered on the constitutionality of the Migratory Bird Tre ...
'' 252 U.S. 416 (1920), Holmes remarked on the Constitution's nature:
According to the pragmatist view, the Constitution should be seen as evolving over time as a matter of social necessity. Looking solely to original meaning, which would largely permit many practices that are now universally condemned, thus causes the rejection of pure originalism out of hand.
That general view has been expressed by Judge
Richard Posner
Richard Allen Posner (; born January 11, 1939) is an American jurist and legal scholar who served as a federal appellate judge on the U.S. Court of Appeals for the Seventh Circuit from 1981 to 2017. A senior lecturer at the University of Chica ...
:
The pragmatist objection is central to the idea that the Constitution should be seen as a living document. Under that view, for example, constitutional requirements of "equal rights" should be read with regard to current standards of equality, not those of decades or centuries ago, an alternative that would be unacceptable.
Original intent
In addition to pragmatist arguments, most proponents of the living Constitution argue that the Constitution was deliberately written to be broad and flexible to accommodate social or technological change over time.
Edmund Randolph
Edmund Jennings Randolph (August 10, 1753 September 12, 1813) was a Founding Father of the United States, attorney, and the 7th Governor of Virginia. As a delegate from Virginia, he attended the Constitutional Convention and helped to create ...
, in his ''
Draft Sketch of Constitution
Draft, The Draft, or Draught may refer to:
Watercraft dimensions
* Draft (hull), the distance from waterline to keel of a vessel
* Draft (sail), degree of curvature in a sail
* Air draft, distance from waterline to the highest point on a vesse ...
'', wrote:
The doctrine's proponents assert that Randolph's injunction to use "simple and precise language, and general propositions," such that the Constitution could "be accommodated to times and events," is evidence of the "genius" of its framers.
James Madison
James Madison Jr. (March 16, 1751June 28, 1836) was an American statesman, diplomat, and Founding Father. He served as the fourth president of the United States from 1809 to 1817. Madison is hailed as the "Father of the Constitution" for hi ...
, the principal author of the Constitution and often called the "Father of the Constitution," said this in argument for original intent and against changing the Constitution by evolving language:
Some Living Constitutionists seek to reconcile themselves with the originalist view, which interprets the Constitution based on its original meaning.
Application
One application of the Living Constitution's framework is seen in the Supreme Court's reference to "evolving standards of decency" under the
Eighth Amendment, as was seen in the 1958 Supreme Court case of ''
Trop v. Dulles'':
The Court referred in ''Trop'' only to the Eighth Amendment's prohibition on cruel and unusual punishment, but its underlying conception was that the Constitution is written in broad terms and that the Court's interpretation of those terms should reflect current societal conditions, which is the heart of the Living Constitution.
Equal Protection and Due Process Clauses
From its inception, one of the most controversial aspects of the living constitutional framework has been its association with broad interpretations of the
Equal Protection Clause
The Equal Protection Clause is part of the first section of the Fourteenth Amendment to the United States Constitution. The clause, which took effect in 1868, provides "''nor shall any State ... deny to any person within its jurisdiction the equal ...
and the
Due Process Clause
In United States constitutional law, a Due Process Clause is found in both the Fifth and Fourteenth Amendments to the United States Constitution, which prohibits arbitrary deprivation of "life, liberty, or property" by the government except as ...
of the
Fifth and the
Fourteenth Amendments.
Proponents of the Living Constitution suggest that a dynamic view of
civil liberties
Civil liberties are guarantees and freedoms that governments commit not to abridge, either by constitution, legislation, or judicial interpretation, without due process. Though the scope of the term differs between countries, civil liberties may ...
is vital to the continuing effectiveness of the constitutional scheme. It is now seen as unacceptable to suggest that married women or descendants of slaves are not entitled to liberty or equal protection with regard to
coverture
Coverture (sometimes spelled couverture) was a legal doctrine in the English common law in which a married woman's legal existence was considered to be merged with that of her husband, so that she had no independent legal existence of her own. U ...
laws, slavery laws, and their legacy, as they were not expressly seen as free from such by those who ratified the Constitution. Advocates of the Living Constitution believe that the framers never intended their 18th-century practices to be regarded as the permanent standard for those ideals.
Living Constitutionalists suggest that broad ideals such as "liberty" and "equal protection" were included in the Constitution precisely because they are timeless and for their inherently dynamic nature. Liberty in 1791 is argued to have never been thought to be the same as liberty in 1591 or in 1991, but it was rather seen as a principle transcending the recognized rights of the day and age. Giving them a fixed and static meaning in the name of "originalism" is thus said to violate the very theory that it purports to uphold.
Points of contention
As the subject of significant controversy, the idea of a Living Constitution is plagued by numerous conflicting contentions.
Disregard of constitutional language
The idea of a Living Constitution was often characterized by Justice Scalia and others as inherently disregarding constitutional language and as suggesting that one should not simply read and apply the constitutional text.
Jack Balkin
Jack M. Balkin (born August 13, 1956) is an American legal scholar. He is the Knight Professor of Constitutional Law and the First Amendment at Yale Law School. Balkin is the founder and director of the Yale Information Society Project (ISP), a r ...
argues that was not the intended meaning of the term, however, and suggests that the Constitution be read contemporaneously, rather than historically.
Such an inquiry often consults the original meaning or intent, along with other interpretive devices. A proper application then involves some reconciliation between the various devices, not a simple disregard for one or another.
Judicial activism
Another common view of the Living Constitution is as synonymous with "
judicial activism
Judicial activism is a judicial philosophy holding that the courts can and should go beyond the applicable law to consider broader societal implications of its decisions. It is sometimes used as an antonym of judicial restraint. The term usually ...
," a phrase that is generally used to accuse judges of resolving cases based on their own political convictions or preferences.
Comparisons
It may be noted that the Living Constitution does not itself represent a detailed philosophy and that distinguishing it from other theories can be difficult. Indeed, supporters often suggest that it is the true originalist philosophy, but originalists generally agree that phrases such as "just compensation" should be applied differently than 200 years ago. It has been suggested that the true difference between the judicial philosophies regards not meaning at all but rather the correct application of constitutional principles. A supporter of the Living Constitution would not necessarily state, for instance, that the meaning of "liberty" has changed since 1791, but it may be what it has always been, a general principle that recognizes individual freedom. The important change might be in what is recognized as liberty today but was not fully recognized two centuries ago. That view was enunciated for the Supreme Court by Justice
George Sutherland
George Alexander Sutherland (March 25, 1862July 18, 1942) was an English-born American jurist and politician. He served as an associate justice of the U.S. Supreme Court between 1922 and 1938. As a member of the Republican Party, he also repre ...
in 1926:
To complete the example, the question of how to apply a term like "liberty" may not be a question of what it "means" but rather a question of which liberties are now entitled to constitutional protection. Supporters of a Living Constitution tend to advocate a broad application in accordance with current views, and originalists tend to seek an application consistent with views at the time of ratification. Critics of the Living Constitution assert that it is more open to judicial manipulation, but proponents argue that theoretical flexibility in either view provides adherents extensive leeway in what decision to reach in a particular case.
Debate
By its nature, the "Living Constitution" is not held to be a specific theory of construction but a vision of a Constitution whose boundaries are dynamic and congruent with the needs of society as it changes. That vision has its critics; in the description of Chief Justice
William Rehnquist
William Hubbs Rehnquist ( ; October 1, 1924 – September 3, 2005) was an American attorney and jurist who served on the U.S. Supreme Court for 33 years, first as an associate justice from 1972 to 1986 and then as the 16th chief justice from ...
, it "has about it a teasing imprecision that makes it a coat of many colors."
It is important to note that the term "Living Constitution" is sometimes used by critics as a pejorative, but some advocates of the general philosophy avoid the term. Opponents of the doctrine tend to use the term as an epithet synonymous with "
judicial activism
Judicial activism is a judicial philosophy holding that the courts can and should go beyond the applicable law to consider broader societal implications of its decisions. It is sometimes used as an antonym of judicial restraint. The term usually ...
" (itself a hotly-debated phrase). However, just as some conservative theorists have embraced the term
Constitution in Exile :''This article does not refer to'' The Constitution in Exile'', a book by Judge Andrew Napolitano.''
Constitution in Exile is a controversial term that refers to the situation resulting from provisions of the United States Constitution allegedly ...
, which similarly gained popularity through use by liberal critics,
textualism
Textualism is a formalist theory in which the interpretation of the law is primarily based on the ordinary meaning of the legal text, where no consideration is given to non-textual sources, such as intention of the law when passed, th ...
was a term that had pejorative connotations before its widespread acceptance as a badge of honor. Some liberal theorists have embraced the image of a living document as appealing.
Support
One argument in support of the concept of a "Living Constitution" is the concept that the Constitution itself is silent on the matter of constitutional interpretation. Proponents assert that the Constitution's framers, most of whom were trained lawyers and legal theorists, were certainly aware of the debates and would have known the confusion that not providing a clear interpretive method would cause. If the framers had meant for future generations to interpret the Constitution in a specific manner, they could have indicated such within the Constitution itself. The lack of guidance within the text of the Constitution suggests that there was no such consensus, or the framers never intended any fixed method of constitutional interpretation.
Relating to the pragmatic argument, it is further argued that if judges were denied the opportunity to reflect on changes to modern society in interpreting the scope of constitutional rights, the resulting Constitution either would not reflect the current
mores
Mores (, sometimes ; , plural form of singular , meaning "manner, custom, usage, or habit") are social norms that are widely observed within a particular society or culture. Mores determine what is considered morally acceptable or unacceptable ...
and values or would require a constant amendment process to reflect the changing society.
Another defense of the Living Constitution is based in viewing the Constitution not merely as law but also as a source of foundational ''concepts'' for the governing of society. Of course, laws must be fixed and clear so that people can understand and abide by them on a daily basis. However, if the Constitution is more than a set of laws but also provides guiding concepts, which will in turn provide the foundations for laws, the costs and benefits of such an entirely-fixed meaning are very different. The reason is simple: if a society locks itself into a previous generation's interpretive ideas, it will wind up either constantly attempting to change the Constitution to reflect changes or simply scrapping the Constitution altogether. While the rights and powers provided in the Constitution remain, the scope that those rights and powers should account for society's present experiences.
Oliver Wendell Holmes, Jr.
Oliver Wendell Holmes Jr. (March 8, 1841 – March 6, 1935) was an American jurist and legal scholar who served as an associate justice of the Supreme Court of the United States from 1902 to 1932.Holmes was Acting Chief Justice of the Un ...
, wrote in 1914: "Provisions of the Constitution of the United States are not mathematical formulas having their essence in their form, but are organic living institutions transplanted from English soil. Their significance is not to be gathered simply from the words and a dictionary, but by considering their origin and the line of their growth."
A prominent endorsement of the Living Constitution concept was heard in the 2000 presidential campaign by the
Democratic candidate,
Al Gore
Albert Arnold Gore Jr. (born March 31, 1948) is an American politician, businessman, and environmentalist who served as the 45th vice president of the United States from 1993 to 2001 under President Bill Clinton. Gore was the Democratic Part ...
.
Opposition
The strongest argument against the doctrine of "Living Constitution" comes not from its moderate use but the concept being seen as promoting activism. The term presumes the premise of that what is written is insufficient in the light of what has happened since. The more moderate concept is generally not the target of those who are against the Living Constitution. The concept considered perverse by constructionalists is making the law say what is desired, rather than submitting to what it actually says.
Economist
Thomas Sowell
Thomas Sowell (; born June 30, 1930) is an American author, economist, political commentator and academic who is a senior fellow at the Hoover Institution. With widely published commentary and books—and as a guest on TV and radio—he becam ...
argues in his book ''
Knowledge and Decisions'' that since the Constitution's original designers provided for the
process of changing it, they never intended for their original words to change meaning. Sowell also points out cases in which arguments are made that the original framers never considered certain issues, although a clear record of them doing so exists.
Another argument against the concept of a Living Constitution is ironically similar to the argument for it: the fact that the Constitution itself is silent on the matter of constitutional interpretation. The Living Constitution is a doctrine that relies on the concept that the original framers could not come to a consensus about how to interpret or never intended any fixed method of interpretation. That would then allow future generations the freedom to reexamine for themselves how to interpret it.
That view does not take into account why the original constitution does not allow for judicial interpretation in any form. The Supreme Court's power for constitutional review, and by extension its interpretation, was not formalized until ''
Marbury v. Madison
''Marbury v. Madison'', 5 U.S. (1 Cranch) 137 (1803), was a List of landmark court decisions in the United States, landmark Supreme Court of the United States, U.S. Supreme Court case that established the principle of Judicial review in the Uni ...
'' in 1803. The concept for a "living constitution" therefore relies on an argument regarding the writing of the constitution that had no validity when the constitution was written.
The views of the constitutional law scholar
Laurence Tribe
Laurence Henry Tribe (born October 10, 1941) is an American legal scholar who is a University Professor Emeritus at Harvard University. He previously served as the Carl M. Loeb University Professor at Harvard Law School.
A constitutional law sc ...
are often described by conservative critics such as
Robert Bork
Robert Heron Bork (March 1, 1927 – December 19, 2012) was an American jurist who served as the solicitor general of the United States from 1973 to 1977. A professor at Yale Law School by occupation, he later served as a judge on the U.S. Court ...
as being characteristic of the Living Constitution paradigm. Bork labeled Tribe's approach as "protean", since it was whatever Tribe needed it to be to reach a desired policy outcome. Tribe rejected both the term and the description. Such a construction appears to define the doctrine as being an ends dictate the means anti-law philosophy. Some liberal constitutional scholars have since implied a similar charge of intellectual dishonesty regarding originalists by noting that they virtually never reach outcomes with which they disagree. (Many academic political scientists believe that justices and appeals judges are willing to alter their outcomes to attain philosophical majorities on certain questions.)
In 1987, Supreme Court Justice
Thurgood Marshall
Thurgood Marshall (July 2, 1908 – January 24, 1993) was an American civil rights lawyer and jurist who served as an associate justice of the Supreme Court of the United States from 1967 until 1991. He was the Supreme Court's first African-A ...
delivered a lecture, "The Constitution: A Living Document," in which he argued that the Constitution must be interpreted in light of the moral, political, and cultural climate of the age of interpretation. If Bork's formulation of "the living Constitution" is guiding, any constitutional interpretation other than originalism of one form or another implies the Living Constitution. If, however, Marshall's formulation is guiding, it is unclear whether methods derived from
law and economics
Law and economics, or economic analysis of law, is the application of microeconomic theory to the analysis of law, which emerged primarily from scholars of the Chicago school of economics. Economic concepts are used to explain the effects of laws ...
or the
Moral Constitution might be implicated.
References to the Living Constitution are relatively rare among legal academics and judges, who generally prefer to use language that is specific and less rhetorical. It is also worth noting that there is disagreement among the opponents of the doctrine on whether the idea is the same as, implied by, or assumed by judicial activism, which has a similar ambiguity of meaning and is also used primarily as a derogatory epithet.
Justice
Clarence Thomas
Clarence Thomas (born June 23, 1948) is an American jurist who serves as an associate justice of the Supreme Court of the United States. He was nominated by President George H. W. Bush to succeed Thurgood Marshall and has served since 199 ...
has routinely castigated "living Constitution" doctrine. In one particularly strongly-worded attack, he noted:
Justice
Antonin Scalia
Antonin Gregory Scalia (; March 11, 1936 – February 13, 2016) was an American jurist who served as an associate justice of the Supreme Court of the United States from 1986 until his death in 2016. He was described as the intellectu ...
expressed similar sentiments and commented:
He also said:
Professor Michael Ramsey has criticized living constitutionalism on the grounds that there are very few limits on what it could achieve.
Ramsey uses Kenneth Jost's argument in favor of the unconstitutionality of the
electoral college to argue that a living constitutionalist could believe, "Even something expressly set forth in the Constitution can be unconstitutional if annoying, inconvenient or ill-advised."
Likewise, Professors Nelson Lund and
John McGinnis have argued that it would be difficult for a living constitutionalist such as
Robert Post to object if the
US Supreme Court
The Supreme Court of the United States (SCOTUS) is the highest court in the federal judiciary of the United States. It has ultimate appellate jurisdiction over all U.S. federal court cases, and over state court cases that involve a point of ...
had used its
reverse incorporation
In United States constitutional law, incorporation is the doctrine by which portions of the Bill of Rights have been made applicable to the states. When the Bill of Rights was ratified, the courts held that its protections extended only to the ...
principle together with the principles of ''
Reynolds v. Sims
''Reynolds v. Sims'', 377 U.S. 533 (1964), was a landmark United States Supreme Court case in which the Court ruled that the electoral districts of state legislative chambers must be roughly equal in population. Along with '' Baker v. Carr'' (19 ...
'' to make the US cte apportioned exclusively based on population and still retained the trust of the American people after doing so.
Judicial activism
One accusation made against the living Constitution method states that judges that adhere to it are
judicial activists and seek to legislate from the bench. That generally means that a judge winds up substituting his judgment on the validity, meaning, or scope of a law for that of the democratically-elected legislature.
Adherents of the Living Constitution are often accused of "reading rights" into the Constitution and of claiming that the Constitution implies rights that are not found in its text. For example, in ''
Roe v. Wade
''Roe v. Wade'', 410 U.S. 113 (1973),. was a landmark decision of the U.S. Supreme Court in which the Court ruled that the Constitution of the United States conferred the right to have an abortion. The decision struck down many federal and s ...
'', the US Supreme Court held that the Constitution has an implicit "
right to privacy
The right to privacy is an element of various legal traditions that intends to restrain governmental and private actions that threaten the privacy of individuals. Over 150 national constitutions mention the right to privacy. On 10 December 1948 ...
," which extends to a woman's right to decide to have an abortion. As such, the Court held that the government can regulate that right with a compelling interest and only if the regulation is as minimally intrusive as possible. Conservative critics have accused the Supreme Court of activism in inventing a constitutional right to abortion. That accusation is accurate in that abortion rights indeed had not been recognized but, the accusation has been applied selectively. For example, few conservatives levy the same claim against the Supreme Court for its decisions concerning
sovereign immunity
Sovereign immunity, or crown immunity, is a legal doctrine whereby a sovereign or state cannot commit a legal wrong and is immune from civil suit or criminal prosecution, strictly speaking in modern texts in its own courts. A similar, stronger ...
, a term that was also found to be implicit in the
Eleventh Amendment by the Supreme Court.
Outside the United States
Canada
In Canada, the living constitution is described under the
living tree doctrine
In Canadian law, the living tree doctrine () is a doctrine of constitutional interpretation that says that a constitution is organic and must be read in a broad and progressive manner so as to adapt it to the changing times.
Concept
The livin ...
.
Unlike in the United States, the fact that the
Canadian Constitution
The Constitution of Canada (french: Constitution du Canada) is the supreme law in Canada. It outlines Canada's system of government and the civil and human rights of those who are citizens of Canada and non-citizens in Canada. Its contents a ...
was intended from the outset to encompass unwritten conventions and legal principles is beyond question. For example, the text of the original constitution does not mention the office of
Prime Minister
A prime minister, premier or chief of cabinet is the head of the cabinet and the leader of the ministers in the executive branch of government, often in a parliamentary or semi-presidential system. Under those systems, a prime minister is not ...
and still fails to state that the
Governor General
Governor-general (plural ''governors-general''), or governor general (plural ''governors general''), is the title of an office-holder. In the context of governors-general and former British colonies, governors-general are appointed as viceroy t ...
always grants
royal assent
Royal assent is the method by which a monarch formally approves an act of the legislature, either directly or through an official acting on the monarch's behalf. In some jurisdictions, royal assent is equivalent to promulgation, while in other ...
to bills. Principles such as democracy, the implied Bill of Rights, the rule of law, and judicial independence are held to derive in part from the preamble of the constitution, which declared the Canadian Constitution to be "similar in principle" to the
British Constitution
The constitution of the United Kingdom or British constitution comprises the written and unwritten arrangements that establish the United Kingdom of Great Britain and Northern Ireland as a political body. Unlike in most countries, no attempt ...
The concept of an evolving constitution has notably been applied to determine the division of powers between provinces and the federal government in areas of jurisdiction that were not contemplated at the time of enactment of the
British North America Act. For example, authority over broadcasting has been held to fall within the federal "
peace, order and good government
In many Commonwealth jurisdictions, the phrase "peace, order, and good government" (POGG) is an expression used in law to express the legitimate objects of legislative powers conferred by statute. The phrase appears in many Imperial Acts of Pa ...
" power.
The
Supreme Court of Canada
The Supreme Court of Canada (SCC; french: Cour suprême du Canada, CSC) is the Supreme court, highest court in the Court system of Canada, judicial system of Canada. It comprises List of Justices of the Supreme Court of Canada, nine justices, wh ...
, in
Re: Same-Sex Marriage (2004), held that the Canadian Parliament, as opposed to provincial legislatures, had the power to define marriage as including same-sex unions. It rejected claims that the constitutionally-enumerated federal authority in matters of "Marriage and Divorce" could not include same-sex marriage because the notion had not been conceived in 1867:
United Kingdom
It has been argued that a primary determinative factor in whether a legal system will develop a "living constitutional" framework is the ease with which constitutional amendments can be passed. With that view in mind, the British constitution could be considered a "living constitution" and requires only a simple majority vote to amend. It is also important to note that the British constitution not derive from a single written document. Therefore, its dependence on the important role of statute law and the influence of its own version of the
Supreme Court of the United Kingdom
The Supreme Court of the United Kingdom (initialism: UKSC or the acronym: SCOTUK) is the final court of appeal in the United Kingdom for all civil cases, and for criminal cases originating in England, Wales and Northern Ireland. As the Unite ...
also make it a living constitution. For instance, after the
World War II
World War II or the Second World War, often abbreviated as WWII or WW2, was a world war that lasted from 1939 to 1945. It involved the vast majority of the world's countries—including all of the great powers—forming two opposin ...
, human-rights based philosophy also became profoundly influential in creating a new international legal order, which the United Kingdom conformed with. It is also important to note the different levels to which the United Kingdom and the United States hold a living constitution, with the United States still referring to an original document that quite contrasts the United Kingdom's unwritten document.
India
The
Constitution of India
The Constitution of India (IAST: ) is the supreme law of India. The document lays down the framework that demarcates fundamental political code, structure, procedures, powers, and duties of government institutions and sets out fundamental ri ...
is considered to be a living and breathing document.
India’s Living Constitution
/ref>
See also
* Living instrument doctrine, similar doctrine in interpreting European Convention of Human Rights
*Living tree doctrine
In Canadian law, the living tree doctrine () is a doctrine of constitutional interpretation that says that a constitution is organic and must be read in a broad and progressive manner so as to adapt it to the changing times.
Concept
The livin ...
, similar doctrine in Canadian constitutional law
*Textualism
Textualism is a formalist theory in which the interpretation of the law is primarily based on the ordinary meaning of the legal text, where no consideration is given to non-textual sources, such as intention of the law when passed, th ...
References
External links
* Synthesizing originalism and Living Constitutionalism, by Jack Balkin http://balkin.blogspot.com/2005/08/synthesizing-originalism-and-living.html
* Confusion about Originalism, by Jack Balkin http://balkin.blogspot.com/2006/08/confusion-about-originalism.html
* {{cite journal, title=Abortion and Original Meaning, author=Balkin, Jack M., ssrn=925558 , date=August 28, 2006, journal=Yale Law School, Public Law Working Paper, volume=119
* Originalism Redux, by Brian Leiter http://leiterreports.typepad.com/blog/2005/06/originalism_red.html
Video
of a debate on the Living Tree doctrine between Supreme Court of Canada Justice Ian Binnie
William Ian Corneil Binnie (born April 14, 1939) is a former puisne justice of the Supreme Court of Canada, serving from January 8, 1998 to October 27, 2011. Of the justices appointed to the Supreme Court in recent years, he is one of the few app ...
and Supreme Court of the United States Justice Antonin Scalia.
* Honestly questioning the notion of a Living and Breathing Document - The British Constitution, by Mark Smit
academia.edu
* SpearIt, Evolving Standards of Domination: Abandoning a Flawed Legal Standard and Approaching a New Era in Penal Reform (March 2, 2015). Chicago-Kent Law Review, Vol. 90, 2015. Available at SSRN: http://ssrn.com/abstract=2572576
* Teuber, Andreas, "How Does the Constitution Mean?" LONDON REVIEW OF BOOKS, Volume 10, Number 7, March, 1988. Available at: http://people.brandeis.edu/~teuber/origintent.html
United States constitutional commentary
Theories of constitutional interpretation