Living Constitution

Proponents view the constitution as developing alongside society's needs and provide a more malleable tool for governments.

Another argument against the Living Constitution is that legislative action, rather than judicial decisions, better represent the will of the people in the United States in a constitutional republic, since periodic elections allow individuals to vote on who will represent them in the United States Congress, and members of Congress should (in theory) be responsive to the views of their constituents.

One case in particular, Pollock v. Farmers' Loan & Trust Co., enraged early progressive activists hoping to achieve an income tax.

[12] The phrase originally derives from the title of a 1927 book of that name by Professor Howard Lee McBain,[13] and early efforts at developing the concept in its modern form have been credited to figures like Oliver Wendell Holmes Jr., Louis D. Brandeis, and Woodrow Wilson.

[17]Wilson strengthened that view, at least publicly, while he campaigned for president in 1912: Society is a living organism and must obey the laws of life, not of mechanics; it must develop.

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 Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.The Court referred in Trop only to the Eighth Amendment's prohibition on cruel and unusual punishment, but its underlying conception was that the Constitution is written in broad terms and that the Court's interpretation of those terms should reflect current societal conditions, which is the heart of the Living Constitution.

[citation needed] Living Constitutionalists suggest that broad ideals such as "liberty" and "equal protection" were included in the Constitution precisely because they are timeless and for their inherently dynamic nature.

[citation needed] As the subject of significant controversy, the idea of a Living Constitution is plagued by numerous conflicting contentions.

[citation needed] Jack Balkin argues that was not the intended meaning of the term, however, and suggests that the Constitution be read contemporaneously, rather than historically.

[27][26] Another common view of the Living Constitution is as synonymous with "judicial activism," a phrase that is generally used to accuse judges of resolving cases based on their own political convictions or preferences.

[29] A supporter of the Living Constitution would not necessarily state, for instance, that the meaning of "liberty" has changed since 1791, but it may be what it has always been, a general principle that recognizes individual freedom.

That view was enunciated for the Supreme Court by Justice George Sutherland in 1926: [W]hile 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.

Critics of the Living Constitution assert that it is more open to judicial manipulation, but proponents argue that theoretical flexibility in either view provides adherents extensive leeway in what decision to reach in a particular case.

Proponents assert that the Constitution's framers, most of whom were trained lawyers and legal theorists, were certainly aware of the debates and would have known the confusion that not providing a clear interpretive method would cause.

Oliver Wendell Holmes Jr., wrote in 1914: "Provisions of the Constitution of the United States are not mathematical formulas having their essence in their form, but are organic living institutions transplanted from English soil.

No matter how ingenious, imaginative or artfully put, unless interpretive methodologies are tied to the original intent of the framers, they have no more basis in the Constitution than the latest football scores.

[38]Justice Antonin Scalia expressed similar sentiments and commented: [There's] the argument of flexibility and it goes something like this: The Constitution is over 200 years old and societies change.

"[42] Likewise, Professors Nelson Lund and John McGinnis have argued that it would be difficult for a living constitutionalist such as Robert Post to object if the US Supreme Court had used its reverse incorporation principle together with the principles of Reynolds v. Sims to make the US cte apportioned exclusively based on population and still retained the trust of the American people after doing so.

[43] One accusation made against the living Constitution method states that judges that adhere to it are judicial activists and seek to legislate from the bench.

Unlike in the United States, the fact that the Canadian Constitution was intended from the outset to encompass unwritten conventions and legal principles is beyond question.

For example, the text of the original constitution does not mention the office of Prime Minister and still fails to state that the Governor General always grants royal assent to bills.

The concept of an evolving constitution has notably been applied to determine the division of powers between provinces and the federal government in areas of jurisdiction that were not contemplated at the time of enactment of the British North America Act.

It rejected claims that the constitutionally-enumerated federal authority in matters of "Marriage and Divorce" could not include same-sex marriage because the notion had not been conceived in 1867: The "frozen concepts" reasoning runs contrary to one of the most fundamental principles of Canadian constitutional interpretation: that our Constitution is a living tree which, by way of progressive interpretation, accommodates and addresses the realities of modern life.

Therefore, its dependence on the important role of statute law and the influence of its own version of the Supreme Court of the United Kingdom also make it a living constitution.

For instance, after the World War II, human-rights based philosophy also became profoundly influential in creating a new international legal order,[48] which the United Kingdom conformed with.