The Constitution – A Living Document?

“Living” documents – putting into use documents written hundreds, even thousands of years ago and justifying their interpretation.

So many people have heard of and used the phrase “living document”.  To define it for those who may not be familiar with the term, a living document (as defined by Wikipedia) is “a document which may be continually edited and updated by either a limited or unrestricted group”.  An example of what some believe should be a living document is the United States Constitution.  I have some interesting thoughts regarding this, but I will say that many see the idea of a “living document” as a way to interpret and change ideas within the living document without actually changing the written words themselves, which can bring about some very sticky situations (as evidenced many times in US History).

The idea that a living doucment should be continuously updated and reinterpreted based on the society and the changes in the cultural norms is a very contentious theory.  The Constitution was adopted by the Constitutional Convention in 1787 as the ultimate law of the US.  It was meant to be a stepping stone, a basis for the interpretation and the founding and rejection of new laws throughout the US.  The Supreme Court, during the infancy of the US, established a pattern whereby the Court could interpret the laws set out in the Constitution and the Bill of Rights as they saw fit.  It’s kind of what started the whole appointing Justices based on political party and personal views thing - of course they are going to interpret the Constitution based on their personal beliefs, no matter what anyone says.  The practice of judicial review, as part of the checks and balances of the Legislative and Executive bodies of the US goverment, was put in place in the US by the famous Supreme Court case Marbury v. Madison in 1803.  Judicial review not only checks the other bodies of the government, but also controls the laws put into place throughout the country.  Judicial review is one of the main ideas that sets forth the ideal that the Constitution is a ”living document”. 

Our Constitution inherently makes the idea of a “living document” an argument at all because the Constitution itself cannot be altered.  At all.  The text within the Constitution is the same as when it was ratified by the colonies in the late 1700′s.  What actually changes the Constitution are Amendments to the Bill of Rights.  The Bill of Rights are the first 10 Amendments to Constitution.  Everyone should be familiar with the first two (Freedom of Speech, etc, and the Right to Bear Arms) and the other eight are also laws that protect the ideals the Founding Fathers thought were inherent rights that people should enjoy in the US.  These have not been altered either, but amended by the other 17 Amendments to the Constitution. 

Now here is where it gets interesting.  The Constitution and the Bill of Rights have not been edited, but reinterpreted.  And depending on the Justices and the make-up of the Supreme Court, it has been reinterpreted in many ways throughout the 200-odd years of US History.  So it has been considered by many to be a living document.  I, personally, believe that it kind of has to be a living document.  We have shown that it cannot be interpreted strictly based on its content because the Constitution was left purposefully vague in certain areas.  The rights to life, liberty and the pursuit of happiness are guaranteed and obviously important, but any more detailed than that, and you are going to have arguments on how things should be. 

However, some argue that to call the Constitution a living document makes it completely worthless.  It is thought that if the ideas are continuously reinterpreted based on the society’s ideals, the inherent ideas in the Consititution can become meaningless if the society does not feel that those laws should be in place.  In fact, this has been proven.  It has been shown that, because of the culture and the times, it has been necessary to re-define the central ideals in the Constitution.  For example, Amendments were necessary guaranteeing women and certain groups of people the right to vote because other groups said that wasn’t inherent in the statements set forth in the Constitution even though the wording is vague enough that it should.  Amendments can also be taken away - for example, the idiocy that was Prohibition.  Because the society said it was so, the Constitution was re-interpreted to suit the peoples’ wishes.  And when the same people (or a new generation) realized that the interpretation was a bad one, or that their wishes weren’t what they thought they would be, the Constitution was re-interpreted and amended yet again to reflect those wishes.

So, in other words, to make a document a ”living document”, the ideas set forth are diminished in a way because they are shown to be fallible, even though they are said and written down in order to be infallible (ie inalienable).  However, because people are fallible, I think that a document written by people (any document, work, etc) needs to be re-interpreted in order to keep the document important to the society living under its rules (that’s why democracy is so awesome).  Nevertheless, it needs to be interpreted intelligently.

Where human rights and law are concerned, anything not done intelligently and with great care should not be done at all.