Is the Constitution a 'living breathing' document?

Seen elsewhere:

Info: I am not involved in that thread. The reply was to someone who thought that the U.S. government should fund stem cell research (including embryonic). The board thinks Bush it too liberal. The quoted poster looks to be in his 70s.

All of that has nothing to do with the question here. I provide it only for context.

Obviously the Constitution is subject to changing with the times. That’s why we have Amendments. But others believe the body of the Constitution is carved in stone. FWIW, all of my schooling that mentioned the Constitution did refer to it as a ‘living, breathing document; and that is its strength’.

What do you think?

Well, Scalia doesn’t think so, but I hate Scalia.

The Constitution “lives,” in two ways IMHO:

  1. It can be amended.
  2. It can be interpreted to apply to new situations (is a blog the Press, for example).

I agree that the Constitution can be amended, under the procedures as described there. So in that sense it is certainly “subject to changing with the times”.

If by a “living, breathing document” it is meant that the Constitution can be made to say whatever the Supreme Court decides it says, without regard to what the text means, or that it can be changed without amendment, no.

FWIW, I have never met anyone who suggested that the Constitution should never be amended. I know plenty of people who believe that it should not be changed without amendment.

Can you please clarify this statement? The way I’m reading it, you’re suggesting that there is no ambiguity in the Constitution and therefore SCOTUS might as well be a computer. I’m 99.9% sure this isn’t what you mean, so, little help?

Well, I’d argue the Constitution was written in such a way that shows it was intended to be read as a flexible, evolving document. Take the Eighth Amendment for example. A ban on “cruel and unusual punishments” was included rather than a list of what was not allowed precisely to account for changing attitudes. Where precision was wanted, it was used - such as the requirement that the slave trade could not be banned before 1808.

Documents do not live. Documents do not breath. With the exception of the amendments, the Constitution says exactly what it said when it was first written.

The idea that the Constitution can be subject to ever-evolving interpretations, and that a certain bunch of words can mean one thing on one occasion and something different, or even opposite, later on, is flawed. We are a democracy. That means that the people vote for leaders, and our leaders make the laws. If we had a Constitution that “evolved”, that would really mean that the courts decided what it meant at any given time, with the Supreme Court having the final say. Hence the Supreme Court would have total power. Since they are not elected, we would no longer be a democracy.

Hence, if we are a democracy, we cannot have a “living Constitution”.

Tell me, ITR Champion, what does the Constitution say about blogs? Are they part of the free press?

For that matter, does the Second Amendment apply to any firearm invented after 1789?

I’d also be very curious to learn what strict constructionalists do about the Ninth Amendment: It looks to me like the Constitution itself is very clear that there are some rights which are not explicitly mentioned in it, but which are nonetheless not to be denied. Who decides which rights those are? Is the right to privacy one of them?

Which works fine, just as long as we’re not talking about things that were never dreamt of by the Founders (including the authors of the subsequent amendments), and there are an awful lot of things that fall into those cracks. The Second Amendment is the best but not the only example of this. The phrase a “A well regulated Militia,…” is expressly in the Constitution, but does that clause mean anything or not? The current SC thinks that those words are window dressing, despite the fact that they call themselves textualists and originalists. If the SC can disregard the words, then ipso facto they must think that the Constitution is a living thing, in need of having unnecessary words pruned and winnowed out.

But our Constitution does evolve and in ways I suspect you are ok with.

I doubt the Founding Fathers really had pornography in mind when they talked about free speech. I am sure they never contemplated radio and television and the internet as regards free speech.

Are we to amend the constitution every time something changes that was not originally present when the document was written? That would be nearly impossible. The Constitution is very difficult to amend (and rightly so).

How about all the “rights” that were once denied to minorities? Separate but equal, anti-miscegenation laws and so on. Once upon a time these were deemed ok. An evolving society later decided that these were improperly decided and over turned. Are we to suppose that since slavery existed when the Constitution was written and the ideas that minorities were somehow “lesser” people that we should hold to those notions today in a legal sense?

What happened to the “militia” part of the 2nd Amendment in today’s rulings?

So were we a democracy in 1944 when the SCOTUS ruled that Japanese internment was in fact constitutional? Or did we only become a democracy when Korematsu vs the United States was overturned?

The courts DO decide how to interpret the Constitution “at any given time” and times are constantly changing. And yes, we are still a democracy.

There is considerable difference between asserting that the Constitution contains no ambiguity, and asserting that it doesn’t say anything in particular. The challenge is to address the first, without being seduced into the other.

You need an example? Okay -

The Constitution says

This sets up limits on the federal government. Note that they are quite sweeping - everything that is not specifically assigned to the federal government is forbidden to it. Unless one can point to a specific clause in the Constitution assigning that power to the feds, it is clear that the feds have no business doing it.

Now, suppose we have some new right that someone asserts they have. So they file a lawsuit trying to get the federal government to establish that right. Under the legitimate use of the Consitution, all that is needed is for the person suing to point to the part of the Constitution giving the federal government the power to establish new rights. Guess what? There is no such clause. Therefore, the power to establish new rights belongs to “the states, or the people”.

Now, there are certainly cases of ambiguous clauses in the Constitution. villa’s example of “cruel or unusual punishment” is one of them. For the Supreme Court to interpret that is legitimate. But passing beyond the gray area of interpretation into the red zone of “making shit up” is not.

If you want to interpret the First Amendment to apply to speech over the Internet, that is rather clearly interpretation. If you want to interpret the First Amendment to say that I have the right to have Ephrem Zimbalist, Jr., dance naked in Macy’s window on New Year’s Day, that clearly is not.

So the question of whether artistic impression is not protected speech isn’t interpretation? What types of expression are and aren’t protected - is it only expression through words?

Why is this so clear to you? Is it possibly because it is something you think shouldn’t be protected, and so you are arriving backwards at your theory?

I’d argue, though, that C&UP isn’t ambiguous. I’d rather call it deliberately flexible, to the extent that ambiguity implies some sort of untended result.


  • The Constitution explicitly made the Army and the Navy (Article I, Section 8). How is it our government made an Air Force then?

  • Number of justices on the Supreme Court? It is set in Federal Law but not the Constitution. Therefore Presidents should be allowed to stack the court right?

  • Right to travel? Not actually mentioned in the Constitution (except for allowing Congresscritters to get to Congress) so therefore a state could restrict it if they wanted to yes?

  • Why does the Federal Government control immigration? It is not in the Constitution that I see so therefore immigration should be worked on a state-by-state basis right?

The above are allowed by interpretations. They are not explicitly laid out in the Constitution.

Actually, this dangerously liberal person would argue strongly that packing the court is constitutional, and if it is to be stopped, it should be stopped by the legislature (or if necessary the people more directly).

I agree with this 100%. I cannot possibly agree more, you and I seem to see so eye-to-eye on this particular subject.

Of course not. Nor should there be. The Constitution defines what the government may do, not what rights people have. So somehow, after your perfectly executed and completely agreeable statement, you’ve gone from defining exactly what powers the government has to limiting what rights people have. It’s a weird step. Not one that is unpopular, I agree, but one that I find no support for in your original statement. All rights, including those not mentioned, are reserved by the states, or the people.

Those rights are already there. Man has rights, he gives some of them up for government; but, instead of the government having a blank check on power and the citizens beg and plead for a little measly equal protection, the government has no power but what we give it. All rights are reserved.

Can you give a specific example of an instance where they made shit up? Please don’t just toss out a court case, but what aspect of that court case in particular bothered you that you’re concerned about SCOTUS making shit up.

I am not comfortable with what hard and fast rule underlies the distinction you have made, but I fear it is tangential.

Not sure I follow.

You are saying you think it is Constitutional? Ok…I agree.

You are saying it should be stopped by the legislature? Ok…it was.

But if you say the Feds cannot make shit up not granted to them bt the Constitution then in theory a President should be able to stack the court since the Constitution does not explicitly forbid it.

Sorry, Whack-a-Mole, I am not understanding your last sentence…

I think that because the make up of the Supreme Court is not defined in the Constitution, then it is not unconstitutional to alter that make up, ceteris paribus. I do, however, think it would fundamentally undermine our system of government, and so should be prevented. Hopefully if it occurs in the future, Congress will have the cojones to prevent it.