Is the US Constitution a "Living Document" or a "Dead Document"? - Historum

Aulus Plautius · December 11th, 2012, 04:51 AM

Speaking at Princeton University recently, US Supreme Court Justice Anton Scalia stated that the US Constitution was "dead, dead, dead..". By that comment he meant that the US Consitution does not evolve with the times, but that the Constitution is to be interpreted by the words used then and adherence to their meaning at the time they were written. He maintains that his approach, otherwise known as "strict constructionist", is actually more flexible as it leaves more power to the states and therefore to the people.

On the opposite side are those that consider the US Constitution a "Living Document". That the US Constitution is to be interpreted with the times and not be limited to the times it was drafted. They maintain that the Constitution evolves with time and that the Constitution was written in broad terms to allow it to evolve and to interpreted with the times. The US has changed over the past 200 plus years and the US Constitution should be interpreted to reflect that change. Afterall, the constitution makes reference to slavery and that does not exist anymore and a civil war has been fought and the federal government has changed, not to mention the technological advances, and, therefore, interpretation of the US Constitution should reflect those changes in circumstance.

I'm asking do you believe the US Constitution is a Living Document or a Dead Document?

**unclefred** · December 11th, 2012, 05:52 AM

Dead. There are methods, amendments, to change the constitution. To 'interpret for the times' is a method to circumvent the built in change mechanism, for political purposes.

**Rongo** · December 11th, 2012, 05:56 AM

Well, I don't really like the terms "living" and "dead" because they've become such politically charged buzzwords. The Constitution was obviously written to be quite vague. So either the Founding Fathers were lazy, or they meant for there to be some level of interpretation there. And of course the interpretation would have to evolve with time by mere fact that the people who are doing the interpreting would be evolving with time.

For example, the 8th amendment prohibits "cruel and unusual punishment". Whipping was a "usual punishment" back at that time, and wasn't considered particularly cruel, and therefore would not have been unconstitutional. Would anybody consider it to be usual, or not cruel, today? If a whipping case came before the Supreme Court today, would we expect them to rule that whipping is OK now because it was considered OK back then? I really doubt it.

So in that regard, I guess I'm in the "living" camp. But I also know it's possible to push the whole "living" thing to excess, and I've seen examples of that, that I unfortunately can't think of right now. So anyway, I vote "living", but it shouldn't be pushed too far.

**Recusant** · December 11th, 2012, 07:53 AM

**Deleted**

Mike Lynch · December 11th, 2012, 01:04 PM

The constitution has never been followed in a literal sense. Everyone was 'equal' but slavery not only existed in half the country but was the fabric of the economy and society. General welfare is supposed to be promoted, but this isn't always true either - just look at the hostility towards the welfare system today. If it's to be interpreted literally I would say it's never lived; if it's to be interpreted loosely I would say it is certainly living.

**Rongo** · December 11th, 2012, 01:33 PM

Here's an example of someone pushing the idea of a "living" Constitution way too far, IMO:

Nathan Newman: Lincoln and the Founding of America's Second Republic

**tjadams** · December 11th, 2012, 01:53 PM

I'm a bit tired from today, but I saw this question earlier and will rest, then
get back to it. But I see it several ways.

"The Constitution of the United States was created by the people of the United States composing the respective states, who alone had the right."
James Madison

When the Constitution was created, the states had to ratify it. But today, do
states, meaning the people, actually get to vote on the issue? Or does an out
of reach member of Congress who rarely cares, or actually reflects their state,
about their constituents until election time, get to vote what they want? Put any amendments
to the people/states to vote on and then let that be the law of the land.
If the Const. is a 'living' document, then it needs to be in step with the times and have
laws pertaining to the times.
If it is a 'dead' document, then it needs to be strictly followed and it is a corpse
of a document, then stop adding to it.
Catch-22.

**Fox** · December 11th, 2012, 03:32 PM

Quote:

Originally Posted by unclefred

Dead. There are methods, amendments, to change the constitution. To 'interpret for the times' is a method to circumvent the built in change mechanism, for political purposes.

This seems a little unfair. The Constitution may be dead, but it's broad - very broad. Providing as it does insufficient direction to come to unvarying conclusions, it is left to each generation to find within that broadness its own implementation, and there is no reason the next generation need be restrained by the ultimately arbitrary judgments of the previous one in this regard.

Take the Commerce Clause for instance. When people argue for a narrow reading of it, I see their point. And when people argue for a broad reading of it, I see their point too. One generation choosing narrow and another choosing broad doesn't imply to me that one is wrong, and it doesn't imply to me that any mechanism for change is being unjustly circumvented, but rather, simply implies to me that the Constitution is working as intended, having sufficient flexibility to meet the challenges of each generation without requiring constant amendment, while still providing enough structure and limitation to guide us towards a basic national consensus. The amendment process ought to be for adding entirely new dimensions to the Constitution, not for slightly broadening or narrowing the interpretation of particular clauses.

An absolute, precisely-worded Constitution would probably be a nightmare. Some vaguery and room to reinterpret is a good thing when taking a long-term view.

**dagul** · December 11th, 2012, 03:46 PM

The Constitution of the U.S. is the fundamental law of the land where the powers and functions of every department of the government are regulated and the rights of the people as reflected in its amendments that are enumerated for which they're governed in accordance with those recognized bill of rights, and on the basis of which, it is a living document.

**Belloc** · December 11th, 2012, 03:57 PM

Neither in my view. You obviously can't interpret the constitution today strictly by 18th century standards today, but you can use those standards to better understand what was meant at the time. You then take that understanding of what was meant at the time and apply it to present circumstances. So the principles behind the constitution are "dead", but how we apply those principles are "living" by nature. Best I can explain this.