Debate Desk
Is the Constitution a Living Document That Judges Should Update?
The Constitution already has a way to change, Article V; a text that means what judges want today does not bind them or protect us.
The claim
Supporters of a living Constitution argue that a document written in 1787 cannot answer the questions of a modern country, that its broad phrases such as "due process" and "equal protection" were meant to grow with society's understanding, and that judges must adapt it.
The answer in three points
- The Constitution does change, and it says how. Article V provides for amendments proposed by two thirds of Congress or a convention called by the states and ratified by three quarters of the states. Twenty-seven amendments have been added, and the process has produced abolition, the vote for women and the direct election of senators.
- A document that changes by judges' decree is not a constitution. If the words mean what current judges think they should, then the Constitution is whatever five justices say it is, and the rights of citizens depend on shifting views. A written text is a promise that rules do not change when the audience does.
- Broad principles can apply to new facts without changing meaning. Free speech covers the internet, and the Fourth Amendment's ban on unreasonable searches covers digital data. The principle stays the same and the facts change.
Those who want a change in the law have two honest routes, persuading legislatures and amending the Constitution. Both leave the decision with the people.
The numbers
- Article V of the Constitution provides that amendments require two thirds of both houses of Congress and ratification by three fourths of the states.
- The National Archives reports that twenty-seven amendments have been ratified, out of more than eleven thousand proposed.
- The Nineteenth Amendment, ratified in 1920, extended the vote to women, and the Seventeenth, ratified in 1913, provided for direct election of senators.
What they will say next
"The amendment process is too hard." It was designed to be hard so that changes reflect lasting consensus. It has worked many times, and a lasting majority can use it.
"Judges need flexibility." They have it in applying principles to new cases. They do not have a license to change the meaning of the rules.
"Society's values have evolved." Then the people's representatives can reflect those values in law, and the people can amend the text. That is how self-government works.
"Originalism freezes the past." It freezes the principles and not the technology or the policies. The legislature remains free to act on most subjects.
If the Constitution means whatever the current majority wishes, it does not protect the minority.
"The framers wanted a flexible document." They wrote in general terms for some clauses and specific terms for others, and they provided an amendment process because they expected change. A flexible method of interpretation would make the amendment process unnecessary, which the framers plainly did not think.