The "Living Document" Argument

In the preceding blog, "Reading the Constitution," I left the "original meanings" versus the "living document" arguments as an open question. Clearly, the Constitution itself is silent on this issue and gives us no directions as to how it should be interpreted in future time.

Here I want to argue for the "living document" approach. A few things are clear. The Constitution uses language fitting the time of its creation, makes provision for a government sufficient to the physical and social facts of the time, and imposes restrictions that were often prompted by the more-or-less recent experiences as English colonists and as a confederation of separate states. In order to understand the Constitution in this overall context, we often have to interpret its language and, in order to do that, we have to make use of numerous historical documents, including essays and letters written by the many people involved in these discussions.

It is also clear, however, that the nation has changed in many ways in the more-than 200 years since the Constitution was written. Not only has the nation itself changed but the physical and social context within which it exists has also changed. It was quite impossible for the authors of the Constitution to even imagine what these changes would be or how they might affect the conditions of governing. For instance, how could the authors foresee that citizens living on their own farms, constituting more than 90% of the US population, would eventually become such an insignificant portion of the population that the US Census would drop them as a category (being now less than 1/2 %. And yet, today, it is precisely the overwhelming shift from a rural agrarian population to an urbanized population that presents government with its major issues and problems.

We are faced with the situation in which the Constitution is either respected as a "living document" that copes with the changing context of government by appropriate and imaginative re-interpretation or understood as archaic and irrelevant, which would mean that we have lost our fundamental laws. In my opinion, it is far better to maintain the fundamental character of the Constitution as law by interpreting it as we can in the context of our actual world than it is to pretend that nothing has changed and to chain ourselves to the fears, opinions, and wishes of the original authors.