27 Facts About Living Constitution

The Constitution is said to develop alongside society's needs and provide a more malleable tool for governments.

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.

Arguments for the Living Constitution vary but can generally be broken into two categories.

Opponents often argue that the Living Constitution should be changed by an amendment process because allowing judges to change the Living Constitution's meaning undermines democracy.

That led progressives to the belief that the Living Constitution was unamendable and ultimately for them to find a new way to achieve the desired level of progress.

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The earliest mentions of the Constitution as "living, " particularly in the context of a new way of interpreting it, comes from Woodrow Wilson's book Constitutional Government in the United States in which he wrote:.

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.

Living Constitution that did not invalidate so offensive, oppressive, probably undemocratic, and sectarian law [as the Connecticut law banning contraceptives] would stand revealed as containing major gaps.

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:.

Proponents of the Living Constitution suggest that a dynamic view of civil liberties is vital to the continuing effectiveness of the constitutional scheme.

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.

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 argues that was not the intended meaning of the term and suggests that the Living Constitution be read contemporaneously, rather than historically.

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.

However, just as some conservative theorists have embraced the term Living Constitution in Exile, which similarly gained popularity through use by liberal critics, textualism was a term that had pejorative connotations before its widespread acceptance as a badge of honor.

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.

The lack of guidance within the text of the Living Constitution suggests that there was no such consensus, or the framers never intended any fixed method of constitutional interpretation.

However, if the Living Constitution is more than a set of laws but 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 Living Constitution to reflect changes or simply scrapping the Living Constitution altogether.

Prominent endorsement of the Living Constitution concept was heard in the 2000 presidential campaign by the Democratic candidate, Al Gore.

Strongest argument against the doctrine of "Living Constitution" comes not from its moderate use but the concept being seen as promoting activism.

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.

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.

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.

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For example, in Roe v Wade, the US Supreme Court held that the Constitution has an implicit "right to privacy, " which extends to a woman's right to decide to have an abortion.

Unlike in the United States, the fact that the Canadian Living Constitution was intended from the outset to encompass unwritten conventions and legal principles is beyond question.