Changes

This 8 decades, nearly century-long lack of disclosure to the wider public leaves the impression that the idea is entirely new.

This 8 decades, nearly century-long lack of disclosure to the wider public leaves the impression that the idea is entirely new.

While many progressives disfavor openly using the phrase ''living constitution'', there are a handful who are defiant<ref name=tnralive>[https://newrepublic.com/article/75628/its-alive It's Alive], [[The New Republic]]</ref> with regard to keeping it in public view.  David A. Strauss,<ref>[http://www.law.uchicago.edu/faculty/strauss David A. Strauss]</ref> a professor of Law at [[Harvard]] who has argued 18 cases in front of the Supreme Court, defines the ''living constitution'' this way:

While many progressives disfavor openly using the phrase ''living constitution'', there are a handful who are defiant<ref name=tnralive>[https://newrepublic.com/article/75628/its-alive It's Alive], [[The New Republic]]</ref> with regard to keeping it in public view.  David A. Strauss,<ref>[https://www.law.uchicago.edu/faculty/strauss David A. Strauss]</ref> a professor of Law at [[Harvard]] who has argued 18 cases in front of the Supreme Court, defines the ''living constitution'' this way:

<blockquote>A "''living constitution''" is one that evolves, changes over time, and adapts to new circumstances, without being formally amended.<ref name=tnralive /><ref>[https://books.google.com/books?id=OYxoAgAAQBAJ&pg=PA1 The Living Constitution], by David A. Strauss, page 1</ref></blockquote>

<blockquote>A "''living constitution''" is one that evolves, changes over time, and adapts to new circumstances, without being formally amended.<ref name=tnralive /><ref>[https://books.google.com/books?id=OYxoAgAAQBAJ&pg=PA1 The Living Constitution], by David A. Strauss, page 1</ref></blockquote>

{{main|Originalism}}

{{main|Originalism}}

Those who look at the Constitution similarly to other legal documents or a contract, are often times called or refer to themselves as ''originalists'' or ''strict constructionists''.  Those who look at the Constitution as a living document often times refer to themselves as ''Legal Pragmatists''.<ref>[http://www.npr.org/2011/10/09/141188564/a-matter-of-interpretation-justices-open-up Justices Get Candid About The Constitution], [[NPR]]</ref>

Those who look at the Constitution similarly to other legal documents or a contract, are often times called or refer to themselves as ''originalists'' or ''strict constructionists''.  Those who look at the Constitution as a living document often times refer to themselves as ''Legal Pragmatists''.<ref>[https://www.npr.org/2011/10/09/141188564/a-matter-of-interpretation-justices-open-up Justices Get Candid About The Constitution], [[NPR]]</ref>

===In Support===

===In Support===

In testimony in front of the Senate Judiciary Committee, Supreme Court Justice [[Stephen Breyer]] argued that "the hardest problem in real cases is that the words "life, liberty, or property" do not explain themselves, "liberty," nor does "the freedom of speech" say specifically what counts as the freedom of speech."<ref name=sjc>[http://www.gpo.gov/fdsys/pkg/CHRG-112shrg70991/html/CHRG-112shrg70991.htm Considering The Role Of Judges Under The Constitution Of The United States]</ref>  He is alluding to what Sunstein plainly stated, that the Constitution has no instruction manual.  So he argues in favor of interpretation, that they are "trying to apply this Constitution with those values underlying the words, to circumstances that are continuously changing, is not something that can be done by a computer. Neither of us thinks that. No one thinks that. And, therefore, it calls for human judgment."  Judgement is required, "to work out how those ancient values apply to modern circumstances."<ref name=sjc />

In testimony in front of the Senate Judiciary Committee, Supreme Court Justice [[Stephen Breyer]] argued that "the hardest problem in real cases is that the words "life, liberty, or property" do not explain themselves, "liberty," nor does "the freedom of speech" say specifically what counts as the freedom of speech."<ref name=sjc>[http://www.gpo.gov/fdsys/pkg/CHRG-112shrg70991/html/CHRG-112shrg70991.htm Considering The Role Of Judges Under The Constitution Of The United States]</ref>  He is alluding to what Sunstein plainly stated, that the Constitution has no instruction manual.  So he argues in favor of interpretation, that they are "trying to apply this Constitution with those values underlying the words, to circumstances that are continuously changing, is not something that can be done by a computer. Neither of us thinks that. No one thinks that. And, therefore, it calls for human judgment."  Judgement is required, "to work out how those ancient values apply to modern circumstances."<ref name=sjc />

Justice [[William Brennan]] believed that "judicial power resides in the authority to give meaning to the Constitution,"<ref>[http://www.pbs.org/wnet/supremecourt/democracy/sources_document7.html Justice William J. Brennan, Jr. - Speech given at the Text and Teaching Symposium, Georgetown University], [[PBS]]</ref> a surprisingly frank description of how believers in the "living constitution" view the role of the judicial branch of the United States.

Justice [[William Brennan]] believed that "judicial power resides in the authority to give meaning to the Constitution,"<ref>[https://www.pbs.org/wnet/supremecourt/democracy/sources_document7.html Justice William J. Brennan, Jr. - Speech given at the Text and Teaching Symposium, Georgetown University], [[PBS]]</ref> a surprisingly frank description of how believers in the "living constitution" view the role of the judicial branch of the United States.

===Disfavor===

===Disfavor===

==2016 Election==

==2016 Election==

During the [[2016 presidential election]], Justice [[Antonin Scalia]], one of the most outspoken critics of the concept of a ''living constitution'',<ref>{{Cite web |title=That Rascal Scalia! |url=http://www.nationalreview.com/bench-memos/52625/rascal-scalia-matthew-j-franck |publisher=[[National Review]]|quote=That's the argument of flexibility and it goes something like this: The Constitution is over 200 years old and societies change. It has to change with society, like a living organism, or it will become brittle and break.}}</ref> passed away.  His passing placed a debate about a "''living constitution''" front and center on the national stage.  The two candidates leading the field of contenders in the [[Republican Party]] discussed the role of the Constitution, the Courts, as well as Scalia's effectiveness as a jurist.  [[Donald Trump]] was critical of the role of the judiciary in deciding non-judicial, legislative matters; stating that the court case [[Roe v. Wade]] "was wrongly decided".<ref>[https://www.breitbart.com/big-government/2016/02/18/trump-vows-defund-planned-parenthood-overturn-roe/ Trump Vows to Defund Planned Parenthood, Overturn Roe], [[Breitbart.com]]</ref>  [[Ted Cruz]] noted that the United States is only "one liberal justice away" from the end of the right to keep and bear arms.<ref>[https://www.breitbart.com/big-government/2015/10/25/ted-cruz-u-s-one-liberal-justice-away-end-gun-rights/ Ted Cruz: U.S. Is One Liberal Justice Away from End of Gun Rights], [[Breitbart.com]]</ref>

During the [[2016 presidential election]], Justice [[Antonin Scalia]], one of the most outspoken critics of the concept of a ''living constitution'',<ref>{{Cite web |title=That Rascal Scalia! |url=https://www.nationalreview.com/bench-memos/52625/rascal-scalia-matthew-j-franck |publisher=[[National Review]]|quote=That's the argument of flexibility and it goes something like this: The Constitution is over 200 years old and societies change. It has to change with society, like a living organism, or it will become brittle and break.}}</ref> passed away.  His passing placed a debate about a "''living constitution''" front and center on the national stage.  The two candidates leading the field of contenders in the [[Republican Party]] discussed the role of the Constitution, the Courts, as well as Scalia's effectiveness as a jurist.  [[Donald Trump]] was critical of the role of the judiciary in deciding non-judicial, legislative matters; stating that the court case [[Roe v. Wade]] "was wrongly decided".<ref>[https://www.breitbart.com/big-government/2016/02/18/trump-vows-defund-planned-parenthood-overturn-roe/ Trump Vows to Defund Planned Parenthood, Overturn Roe], [[Breitbart.com]]</ref>  [[Ted Cruz]] noted that the United States is only "one liberal justice away" from the end of the right to keep and bear arms.<ref>[https://www.breitbart.com/big-government/2015/10/25/ted-cruz-u-s-one-liberal-justice-away-end-gun-rights/ Ted Cruz: U.S. Is One Liberal Justice Away from End of Gun Rights], [[Breitbart.com]]</ref>

These arguments highlight the fact that the courts have provided an end-run-around the amendment process, which is the proper way these changes should be handled.

These arguments highlight the fact that the courts have provided an end-run-around the amendment process, which is the proper way these changes should be handled.

==Internationally==

==Internationally==

Traditionally, the ''living constitution'' concept has primarily been applied to the re-interpretation of the [[Constitution of the United States]].  However, in recent times, questions have started to be asked as to if other constitutions around the globe may also be considered ''living and breathing constitutions''.<ref>[http://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?article=5617&context=fss_papers The Roots of the Living Constitution]</ref><ref>[http://www.ruleoflaw.ca/the-true-american-import-to-canada-is-the-living-constitution-not-originalism/ The True American Import to Canada is the Living Tree, not Originalism]</ref>  The constitution of [[India]], for example, is considered to be a living and breathing document.<ref>{{cite book|last1=Hasan|first1=Zoya|last2=Sridharan|first2=Eswaran|last3=Sudarshan|first3=R.|title=India's Living Constitution: Ideas, Practices, Controversies|date=2005|publisher=Anthem Press|isbn=9781843311379}}</ref><ref>[http://timesofindia.indiatimes.com/india/Indias-Living-Constitution/articleshow/5490343.cms India’s Living Constitution]</ref>  The constitution of [[Canada]] is also looked at this way, where the constitution is "a living tree capable of growth and expansion."<ref>[https://www.nytimes.com/2013/10/17/opinion/greenhouse-a-tree-grows-in-canada.html A Tree Grows in Canada], [[The New York Times]]</ref>

Traditionally, the ''living constitution'' concept has primarily been applied to the re-interpretation of the [[Constitution of the United States]].  However, in recent times, questions have started to be asked as to if other constitutions around the globe may also be considered ''living and breathing constitutions''.<ref>[http://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?article=5617&context=fss_papers The Roots of the Living Constitution]</ref><ref>[http://www.ruleoflaw.ca/the-true-american-import-to-canada-is-the-living-constitution-not-originalism/ The True American Import to Canada is the Living Tree, not Originalism]</ref>  The constitution of [[India]], for example, is considered to be a living and breathing document.<ref>{{cite book|last1=Hasan|first1=Zoya|last2=Sridharan|first2=Eswaran|last3=Sudarshan|first3=R.|title=India's Living Constitution: Ideas, Practices, Controversies|date=2005|publisher=Anthem Press|isbn=9781843311379}}</ref><ref>[https://timesofindia.indiatimes.com/india/Indias-Living-Constitution/articleshow/5490343.cms India’s Living Constitution]</ref>  The constitution of [[Canada]] is also looked at this way, where the constitution is "a living tree capable of growth and expansion."<ref>[https://www.nytimes.com/2013/10/17/opinion/greenhouse-a-tree-grows-in-canada.html A Tree Grows in Canada], [[The New York Times]]</ref>

What effect a comparison of countries' constitutions will have on the concept of a ''living constitution'' has not yet been determined, since some constitutions are more solid than others.

What effect a comparison of countries' constitutions will have on the concept of a ''living constitution'' has not yet been determined, since some constitutions are more solid than others.