Living constitutionalism

Living constitutionalism is the view that the Constitution's broad phrases, such as "due process," "equal protection" and "cruel and unusual," should be applied in light of present-day understanding rather than the specific expectations of the generation that adopted them. Its defenders describe the document as a framework designed to endure and adapt.

Living constitutionalists often build doctrine through precedent, the way the common law develops, rather than by returning to founding-era sources. Decisions expanding rights under substantive due process and the Equal Protection Clause in the twentieth century are commonly cited as examples of the approach.

The theory is the main rival to originalism. Supporters argue that the amendment process is too difficult to keep the Constitution workable, and that the framers deliberately used open-ended language. Conservative critics say the approach lets unelected judges substitute their preferences for the law, a charge often summarized as judicial activism, and that a constitution whose meaning changes with judges offers no stable limits on government.