A living Constitution (or sometimes known as an "Evolving constitution") is one that changes based on the changing values of the people. As a practical matter, it means the U.S. Constitution should be interpreted however a majority of the U.S. Supreme Court feels. This view of the Constitution is closely associated with judicial activism and is responsible for some of the most dangerous rulings in history, especially Roe v. Wade.
The first progressive to develop the view that the Constitution is a living and breathing document was Woodrow Wilson. He wrote in his book Constitutional Government in the United States that:
|“||Living political constitutions must be Darwinian in structure and in practice. Fortunately, the definitions and prescriptions of our constitutional law, though conceived in the Newtonian spirit and upon the Newtonian principle, are sufficiently broad and elastic to allow for the play of life and circumstance.||”|
He further expanded on this idea during the United States presidential election, 1912, as a part of his "New Freedom" program that:
|“||All that progressives ask or desire is permission-in an era when “development," "evolution," is the scientific word-to interpret the Constitution according to the Darwinian principle; all they ask is recognition of the fact that a nation is a living thing and not a machine.||”|
The full phrase "Living constitution" would not appear until 1927 with the publication of the book "The Living constitution, a consideration of the realities and legends of our fundamental law", by Howard Lee McBain.
One of the first times the phrase "living Constitution" was expressly used inside the court room was by the liberal four-Justice dissent in Rummel v. Estelle. It has been embraced by the left side of the Court in numerous rulings since.
The courts have worked under the idea that the Constitution is living and breathing, long before announcing it. As early as 1926, in Village of Euclid v. Ambler Realty Co., the courts held:
|“||Regulations the wisdom, necessity and validity of which, as applied to existing conditions, are so apparent that they are now uniformly sustained a century ago, or even half a century ago, probably would have been rejected as arbitrary and oppressive. Such regulations are sustained, under the complex conditions of our day, for reasons analogous to those which justify traffic regulations, which, before the advent of automobiles and rapid transit street railways, would have been condemned as fatally arbitrary and unreasonable. And in this there is no inconsistency, for, while the meaning of constitutional guaranties never varies, the scope of their application must expand or contract to meet the new and different conditions which are constantly coming within the field of their operation. In a changing world, it is impossible that it should be otherwise. But although a degree of elasticity is thus imparted not to the meaning, but to the application of constitutional principles, statutes and ordinances which, after giving due weight to the new conditions, are found clearly not to conform to the Constitution of course must fall.||”|
- (1908) Constitutional Government in the United States, 57.
- Woodrow Wilson Asks “What Is Progress?”. Heritage Foundation.
- The Living Law,Louis Brandeis, Illinois Law Review, February 16, 1916
- Rummel v. Estelle, 445 U.S. 263 (1980)
- Village of Euclid v. Ambler Realty Co., 272 U.S. 365 (1926)