Arguments in Favor of the Living Constitution
The Constitution of the United States represents the fundamental law of the country’s federal system of government and remains the Western world’s landmark. From the text of the document itself, it becomes apparent that there is a need to determine the Constitution’s meaning through the use of various methods of interpretation and, possibly, construction. Even though some parts of the document do not offer much room for their preferred methods of interpretation, the majority of it is broadly worded, which means that the Court gets more freedom to interpret some provisions before applying them to legal and factual circumstances. Therefore, it is important to determine the mode of the Constitution’s interpretation in the context of the Supreme Court to reach consistency in the document’s application. A flexible interpretation or “living document” perspective is preferred because society is always changing, and new processes take place each year, with strict constructionism possibly being too literal and narrow for the society in which Americans currently live.
A living Constitution is one that can evolve, change over time, and adapt to new conditions without the need to be formally changed or amended. Because the written document was adopted 230 years ago, it can be amended but the process itself can be complex and time-consuming. Some of the most important amendments to the Constitution were added around 150 years ago in the wake of the Civil War, and, since that time, the majority of the newer amendments have covered minor issues. However, the world has changed immeasurably, with the American nation growing its population and territory, causing significant economic, social, and political transformation.
The ambiguity of some Constitutional laws and provisions allows them to be interpreted differently before being applied to court case circumstances. For instance, according to the Second Amendment, “A well-regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed” (“Second Amendment,” n.d.). The text is written in such a way that it does not allow to squarely resolve whether citizens’ right to keep and bear arms is applicable to all citizens or only those serving in a militia. The ambiguity of the text enabled a close divide in the 2008 decision of the Supreme Court, which ruled in favor of the former interpretation (Murrill, 2018). Therefore, the circumstances in which the Constitution is being interpreted will inevitably influence the outcomes of the interpretation.
The flexible interpretation of the Constitution is also necessary because its drafters could never have foreseen the need for some provisions to be necessary. For instance, the 1791 Fourth Amendment does not allow resolving whether the government is allowed to perform searches of the digital contents of a cell phone seized incident to arrest without getting a warrant (Murrill, 2018). Therefore, the flexibility of interpretation is crucial for determining the meaning of the Constitution’s ambiguous provisions or for answering crucial questions that could not be addressed by the document’s drafters. When viewing the Constitution as a living and evolving document, its words can adapt to different areas of life. For example, the general welfare clause was established to give power to the federal government to improve the population’s general welfare. However, during times of hardship, many would argue that the government should be given the power to infringe on some rights to establish peace. Lincoln used the general clause when suspending the writ of habeas corpus and closing down over three hundred newspapers that were seen as sabotaging the war effort (Bramwell, 2021). As time passed, the Patriot Act was enacted after the events of 9/11, giving unprecedented power to the government to increase surveillance to counter terrorism threats (Bramwell, 2021). Therefore, a flexible interpretation allows for the more efficient settlement of civil rights and justice issues because it considers only one case for a landmark decision.
The problem with the Living Constitution concept is the idea that the document should be seen as a rock-solid foundation of the most crucial principles that must remain constant. Besides, there may be risks of the Constitution being twisted in a biased way to fit a certain decision, which can lead to adverse consequences and even infringements on basic constitutional liberties. Nevertheless, the modern world is far more complex and there are indeed many issues that the Constitution does not cover, which allows room for interpretational flexibility.
To conclude, on a long-term basis, a more rigid interpretation of the Constitution may be the best option, but in issues that affect society on an everyday and short-term basis, a more flexible perspective is needed. The freedom to interpret the text, therefore, allows juxtaposing the written language of the Constitution to the existing sociopolitical climate in the country when making decisions. Those who drafted the Constitution could not have foreseen the drastic changes that would take place in America, and it is not realistic to expect the complicated process of amendments to occur to keep up with changes.
References
Bramwell, W. (2021). Pros and cons of the Founding Fathers’ interpretation of the Constitution.
Murrill, B. J. (2018). Modes of constitutional interpretation.
Second Amendment. (n.d.).