Con Law IInterpreting the Constitution

Living Constitutionalism

Living constitutionalists hold that the Constitution's broad principles are applied to new conditions over time, often through precedent built case by case; advocates say this is how the common law and the Constitution have in fact developed and keeps it workable.

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Living constitutionalism holds that the Constitution's broad principles are applied to new conditions over time, mostly through precedent built case by case. Its advocates include scholars such as David Strauss (The Living Constitution, 2010) and judges such as Justice William Brennan and Justice Stephen Breyer (Active Liberty, 2005). Like originalism, it is a family of views, and it draws on doctrinal, prudential and ethical modalities as well as text and history.

Why it works

Advocates give several reasons. This is how our law has in fact developed. Strauss argues that American constitutional law works mostly like the common law: judges reason from precedent, extend it carefully and correct it when experience shows it fails. Much of what everyone accepts today, from the modern commerce power to the law of free speech, grew that way rather than by amendment. The text invites it. The framers wrote some clauses in broad terms ("equal protection," "unreasonable searches") and others in exact ones (a President must be 35). Broad terms, advocates say, state principles meant to be applied by later generations. Amendment is very hard. Article V requires two-thirds of both houses and three-fourths of the states, so a Constitution that could change only by amendment would fall behind a changing country.
One sentence, two readings. Tap the marked phrases.

Key idea

Living constitutionalists accept the text's authority and read its open-ended phrases as principles whose application develops over time, mainly through precedent; advocates say this is how constitutional law has worked and keeps the Constitution workable.

Worked example: Principle and application

The Equal Protection Clause (1868) says no state shall "deny to any person within its jurisdiction the equal protection of the laws." How does a living constitutionalist explain Brown v. Board of Education (1954), which rejected the "separate but equal" rule of Plessy v. Ferguson (1896)?
  1. Start with the text: the clause states a general principle of equality, not a list of practices.
  2. Look at experience: decades of cases had shown that "separate" facilities were not equal in fact.
  3. Reason from precedent: cases such as Sweatt v. Painter (1950) had already found separate law schools unequal; Brown extended that line.
  4. Conclude that applying the same principle to new understanding required a different result.

Answer: The principle stayed the same; its application changed through case-by-case reasoning. (Many originalists argue that Brown is also right on originalist grounds; the case is not owned by either school.)

Worked example: The commerce power

In 1895 the Court held that manufacturing was not "commerce"; by 1942 it upheld federal limits on wheat grown for a farm's own use. How would Strauss describe that change?
  1. No amendment changed the Commerce Clause.
  2. The national economy changed, and a long series of decisions, from the narrow era to Wickard v. Filburn, worked out what "commerce among the several States" means in an industrial economy.
  3. That is common-law development: precedent, tested by experience and revised.

Answer: As evidence that constitutional law grows through precedent. Critics see the same history as drift from the text; you will judge the cases yourself in the commerce unit.

Common mistake

Thinking living constitutionalists ignore the text. They accept its authority and its exact rules; the disagreement is about broad phrases such as "equal protection" and "due process." Check: does the argument claim the text does not bind, or that a broad principle in the text applies differently to new facts? Only the second is living constitutionalism.

Critics answer that the approach gives judges too much room to write their own views into law, that it weakens the reason for having a written constitution, and that change should come from voters and amendments. Advocates reply that precedent and the craft of judging constrain judges, that originalism leaves just as much room through choices about history, and that common-law growth has served the country well. Practice in this course will ask you to identify each school's arguments, never to choose a winner.

This is an educational course, not legal advice.

Practice

Pass with 3 right answers, the last 2 in a row. Each right answer earns 3 XP.

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