Changes

===Concept===

===Concept===

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:

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:

{{cquote| 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.<ref>{{cite book|url=https://books.google.com/books?id=gh9AAAAAYAAJ&pg=PA57|last1=Wilson|first1=Woodrow|title=Constitutional Government in the United States|date=1908|pages=57}}</ref>}}

<blockquote>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.<ref>{{cite book|url=https://books.google.com/books?id=gh9AAAAAYAAJ&pg=PA57|last1=Wilson|first1=Woodrow|title=Constitutional Government in the United States|date=1908|pages=57}}</ref></blockquote>

He further expanded on this idea during the [[United States presidential election, 1912]], as a part of his "New Freedom" program that:

He further expanded on this idea during the [[United States presidential election, 1912]], as a part of his "New Freedom" program that:

{{cquote|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.<ref>{{cite web |title=Woodrow Wilson Asks “What Is Progress?” |url=http://www.heritage.org/initiatives/first-principles/primary-sources/woodrow-wilson-asks-what-is-progress |work=[[Heritage Foundation]]}}</ref>}}

<blockquote>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.<ref>{{cite web |title=Woodrow Wilson Asks “What Is Progress?” |url=http://www.heritage.org/initiatives/first-principles/primary-sources/woodrow-wilson-asks-what-is-progress |work=[[Heritage Foundation]]}}</ref></blockquote>

Other progressives have also had a hand in the development of this concept, such as [[Louis Brandeis]] with his [[Louis Brandeis#Brandeis_Brief|Brandeis Brief]].  Brandeis would later catalog some of his thoughts on what had occurred.<ref>[https://archive.org/details/TheLivingLawLouisBrandeis ''The Living Law''],[[Louis Brandeis]], ''Illinois Law Review'', February 16, 1916</ref>

Other progressives have also had a hand in the development of this concept, such as [[Louis Brandeis]] with his [[Louis Brandeis#Brandeis_Brief|Brandeis Brief]].  Brandeis would later catalog some of his thoughts on what had occurred.<ref>[https://archive.org/details/TheLivingLawLouisBrandeis ''The Living Law''],[[Louis Brandeis]], ''Illinois Law Review'', February 16, 1916</ref>

===In Public View===

===In Public View===

One of the first times that the concept of a "living constitution" was brought out for public consumption was during the 2000 election, almost 90 years after it came into existence.  On March 2nd, 2000, then Presidential Candidate [[Al Gore]] said the following: <ref>[http://articles.latimes.com/2000/mar/02/news/ss-4678 On The Record - Candidates Bill Bradley and Al Gore squared off Wednesday night, sharing their visions of America's future], [[Los Angeles Times]], March 2nd, 2000</ref>

One of the first times that the concept of a "living constitution" was brought out for public consumption was during the 2000 election, almost 90 years after it came into existence.  On March 2nd, 2000, then Presidential Candidate [[Al Gore]] said the following: <ref>[http://articles.latimes.com/2000/mar/02/news/ss-4678 On The Record - Candidates Bill Bradley and Al Gore squared off Wednesday night, sharing their visions of America's future], [[Los Angeles Times]], March 2nd, 2000</ref>

<blockquote>Gore: I would look for justices of the Supreme Court who understand that our Constitution is a living and breathing document, that it was intended by our founders to be interpreted in the light of the constantly evolving experience of the American people. The right of privacy, just to take one example, was found by Justice Harry Blackmun in the Constitution even though the precise words are not there.</blockquote>

<blockquote>Gore: I would look for justices of the Supreme Court who understand that our Constitution is a living and breathing document, that it was intended by our founders to be interpreted in the light of the constantly evolving experience of the American people. The right of privacy, just to take one example, was found by Justice Harry Blackmun in the Constitution even though the precise words are not there.</blockquote>

====Implicit====

====Implicit====

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:

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:

{{cquote|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.<ref>[https://supreme.justia.com/cases/federal/us/272/365/case.html Village of Euclid v. Ambler Realty Co., 272 U.S. 365 (1926)]</ref>}}

<blockquote>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.<ref>[https://supreme.justia.com/cases/federal/us/272/365/case.html Village of Euclid v. Ambler Realty Co., 272 U.S. 365 (1926)]</ref></blockquote>

==Debate==

==Debate==

===In Support===

===In Support===

Supporters of the concept argue that the ''living constitution'' is one that changes based on the changing values of the people.  Some proponents point to the fact that there are many places of silence on many issues within the Constitution itself.  Others, such as [[Cass Sunstein]], a scholar at [[Harvard]], argues that the Constitution does not come with an instruction manual.

Supporters of the concept argue that the ''living constitution'' is one that changes based on the changing values of the people.  Some proponents point to the fact that there are many places of silence on many issues within the Constitution itself.  Others, such as [[Cass Sunstein]], a scholar at [[Harvard]], argues that the Constitution does not come with an instruction manual.

<blockquote>The Constitution does not set out the instructions for its own interpretation. A theory of interpretation has to be defended, rather than asserted, and the defense must speak candidly in terms of the system of constitutional law that it will yield.<ref>[http://chicagounbound.uchicago.edu/cgi/viewcontent.cgi?article=1207&context=public_law_and_legal_theory Of Snakes and Butterflies: A Reply] (PDF), [[Cass R. Sunstein]]</ref></blockquote>

<blockquote>The Constitution does not set out the instructions for its own interpretation. A theory of interpretation has to be defended, rather than asserted, and the defense must speak candidly in terms of the system of constitutional law that it will yield.<ref>[http://chicagounbound.uchicago.edu/cgi/viewcontent.cgi?article=1207&context=public_law_and_legal_theory Of Snakes and Butterflies: A Reply] (PDF), [[Cass R. Sunstein]]</ref></blockquote>

===Disfavor===

===Disfavor===

Critics of the concept, sometimes called ''originalists'' or ''strict constructionists'', point to the importance of the meaning and definition of words.  Chief Justice [[William Rehnquist]] made the following point:

Critics of the concept, sometimes called ''originalists'' or ''strict constructionists'', point to the importance of the meaning and definition of words.  Chief Justice [[William Rehnquist]] made the following point:

<blockquote>A mere change in public opinion since the adoption of the Constitution, unaccompanied by a constitutional amendment, should not change the meaning of the Constitution. A merely temporary majoritarian groundswell should not abrogate some individual liberty truly protected by the Constitution.<ref>[http://www.law.harvard.edu/students/orgs/jlpp/Vol29_No2_Rehnquist.pdf The Notion of a Living Constitution] (PDF), [[William Rehnquist]]</ref></blockquote>

<blockquote>A mere change in public opinion since the adoption of the Constitution, unaccompanied by a constitutional amendment, should not change the meaning of the Constitution. A merely temporary majoritarian groundswell should not abrogate some individual liberty truly protected by the Constitution.<ref>[http://www.law.harvard.edu/students/orgs/jlpp/Vol29_No2_Rehnquist.pdf The Notion of a Living Constitution] (PDF), [[William Rehnquist]]</ref></blockquote>

Other critics<ref>[https://books.google.com/books?id=a1NYXMv_yLoC&pg=PA37 Liberty and Tyranny:  A Conservative Manifesto], by [[Mark Levin]]</ref> along this same line point to the fact that [[James Madison]] himself made similar points.

Other critics<ref>[https://books.google.com/books?id=a1NYXMv_yLoC&pg=PA37 Liberty and Tyranny:  A Conservative Manifesto], by [[Mark Levin]]</ref> along this same line point to the fact that [[James Madison]] himself made similar points.

<blockquote>I entirely concur in the propriety of resorting to the sense in which the Constitution was accepted and ratified by the nation. In that sense alone it is the legitimate Constitution. And if that is not the guide in expounding it, there may be no security for a consistent and stable, more than for a faithful exercise of its powers. If the meaning of the text be sought in the changeable meaning of the words composing it, it is evident that the shape and attributes of the Government must partake of the changes to which the words and phrases of all living languages are constantly subject. What a metamorphosis would be produced in the code of law if all its ancient phraseology were to be taken in its modern sense.<ref>[http://www.constitution.org/jm/18240625_lee.txt James Madison to Henry Lee - June 25, 1824.]</ref></blockquote>

<blockquote>I entirely concur in the propriety of resorting to the sense in which the Constitution was accepted and ratified by the nation. In that sense alone it is the legitimate Constitution. And if that is not the guide in expounding it, there may be no security for a consistent and stable, more than for a faithful exercise of its powers. If the meaning of the text be sought in the changeable meaning of the words composing it, it is evident that the shape and attributes of the Government must partake of the changes to which the words and phrases of all living languages are constantly subject. What a metamorphosis would be produced in the code of law if all its ancient phraseology were to be taken in its modern sense.<ref>[http://www.constitution.org/jm/18240625_lee.txt James Madison to Henry Lee - June 25, 1824.]</ref></blockquote>