Should the Constitution be a living, breathing document?

It’s often said by folks who ascribe to a strict and literal interpretation of the U.S. Constitution that the document says what it says, and anything not expressly mentioned in the Constitution is thusly unconstitutional. While I can certainly appreciate that point of view, I’m more a believer in the idea espoused by some guy named Thomas Jefferson in a letter he wrote to Samuel Kercheval on July 12, 1810:

I am not an advocate for frequent changes in laws and constitutions, but laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths discovered and manners and opinions change, with the change of circumstances, institutions must advance also to keep pace with the times. We might as well require a man to wear still the coat which fitted him when a boy as civilized society to remain ever under the regimen of their barbarous ancestors.


Related Articles

10 thoughts on “Should the Constitution be a living, breathing document?

  1. I like the Constitution because it doesn’t say anything about dumb ol’ technology, who needs it right?

  2. “changes in laws and constitutions” — Do you think he might have meant actually passing laws or AMENDING the constitution rather than the Court inferring things on their own and making stuff up? I don’t think the Constitution needs to be so revered that changes can’t/shouldn’t be made, but I prefer the legislative body to be the one doing it.

    1. The way the court obtains jurisdiction to “infer” is that someone challenges an existing law. Very few statutes are written in such explicit detail that it is a black or white issue. So the courts are then directed to case law by the parties’ lawyers who will argue that the case is either analogous and therefore controlling, or completely different and therefore distinguishable. The Court then has to choose a parties’ arguments, in most instances a reviewing court is unable to address arguments that the party did not make in the lower court. I don’t think that is judicial activism. As Justice Kennedy recently stated “it’s only judicial activism if you don’t like the decision. “

    2. Judges help to prevent a situation of tyranny of the majority though, which is NOT what our republic should be about. Laws should be to protect rather than tools of attack on minorities. It hasn’t even been ten years since the Supreme Court struck down the backwards so-called “sodomy” laws.

  3. One either accepts the US Constitution as a living breathing document that adapts to the wants and needs of the people or run the risk of having to rewrite the thing from scratch every other generation or so.

    1. The problem with your assessment is that the idea of a living, breathing document empowers judges who are not our representatives. We could get stuck with a decision that is wildly unpopular all because of some meathead activist judge. Recent case in point – Judge Barbara Crabb ruled National Day of Prayer unconstitutional. It may get overturned, but what if it doesn’t?

      1. “We could get stuck with a decision that is wildly unpopular…”

        Unpopularity is the measure of good law? I thought the essence of the court system was to decide what is legal and illegal, what is Constitutional or unconstitutional, and basically what is right and wrong. There have been plenty of rulings that have been highly unpopular over the 200+ years of our Constitution that have been highly unpopular but have been good law.

    2. “Living and breathing” in the sense that you apply current situations to the broader princples in the document. However, if it’s not found in the document it is up to the people (in the form of an elected legislature) to put it there via amending it, not by judges. Amending it is what keeps it living and breathing with integrity, not judges pulling things out of thin air.

      1. I guess you didn’t read Super Id’s reply several comments above yours. The Supreme Court doesn’t just wake up one morning and decide they want to gut the 1st Amendment (nor any other court). Someone has to have brought suit in the court system somewhere and the appeal process needs to work its wonders. Then the Supremes have a choice to not hear the case or they can hear it and let each side present its case and make a decision on the merits of the case and their understanding of the law…

Comments are closed.