Nonoriginalist theories of constitutional law are often associated with the idea of the “Living Constitution.” In a rough sense, the metaphor captures the notion that the Constitution can and should evolve to keep pace with the ever-changing nature of our modern society. Therefore, the theory goes, judges should be permitted to engage in “dynamic” or “loose” readings of the constitutional text so as to ensure that a very old document remains able to meet the needs and challenges of today’s world.
The living Constitution metaphor often prompts the following sort of rejoinder: “Wait a minute! Article V of the Constitution prescribes a specific and (arguably) exclusive set of procedures for changing the document’s meaning. And if a changed world does in fact demand changed constitutional law, then those are the procedures that we should use to achieve the requisite changes.” Judges, on this view, should not be allowed to circumvent the Article V process by informally according a “living” meaning to the constitutional text. To permit judicial updating of this is sort is to license judicial infringements on popular sovereignty: “We the People” are the authors of the Constitution, so only “We the People” should be able to amend it. Let’s call this argument the “Article V Objection.”
To me, the Article V Objection to the “living Constitution” is both powerful and weak. It’s powerful in that it identifies some very real problems with the notion of a freely changing constitutional text. But it’s weak in the sense that it doesn’t resolve the questions of whether and to what extent judges may change the content of constitutional law . In other words, the Article V Objection doesn’t so much destroy the idea underlying the “living Constitution” metaphor as it suggests some alterations to its framing.
Here, then, I want to present three alternative re-framings of the “living Constitution” idea, each of which (a) countenances at least some forms of judicially-initiated changes to constitutional law; and (b) offers, to my mind, a more adequate (though not necessarily definitive) response to the Article V Objection. Each of these re-framings, moreover, carries with it different a set of implications regarding the sorts of constitutional reforms that judges should be permitted to pursue. In that sense, then, the re-framings may afford us the added benefit of teasing out some internal subtleties and disagreement points that lie lurking within appeals to the “living Constitution,” full stop.
Thus, without further ado, let’s meet our contestants: