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The “Living Constitution” is a phrase referring to the United States Constitution with multiple meanings in contemporary usage. Depending on the context, the phrase can refer to: :1. The ability of the Constitution to change and evolve through the amendment process. :2. The vibrancy and relevancy of the Constitution and its protections in the everyday life of contemporary Americans. :3. a doctrine of constitutional philosophy that says that a constitution is organic and must be read in a broad and liberal manner so as to adapt it to the changing times. The balance of this Wikipedia entry concerns this last and most controversial usage of the phrase “living constitution.” IN THE UNITED STATES Meaning and usage of the term In US legal discourse, the living Constitution is a controversial description of a conceptual framework interpreting the Constitution of the United States. The term derives from the title of a 1927 book of that name by Prof. Howard McBain. A phrase from an important case {Link without Title} , encapsulates the approach associated with the living Constitution doctrine''): : " words of the [Eighth Amendment are not precise, and that their scope is not static. The Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society." While the Court was referring in ''Trop'' only to the Eighth Amendment 's prohibition on cruel and unusual punishment, the conception that underlies the phrase - namely, that the Constitution is written in broad terms, and that the Court's interpretation of those terms should reflect current exigencies in society, rather than what meaning they might have had when ratified - is the heart of "living Constitution" doctrine: that the document does not have a fixed meaning, but rather, that it grows with the society it governs. By its nature, "the living Constitution" it is not held to be a specific theory of construction, but a vision of a Constitution whose boundaries and provisions are dynamic and amorphous, congruent with whatever the needs of society may be at a particular moment, rather than possessing a fixed and definitive meaning; in the description of the late Chief Justice William Rehnquist , it "has about it a teasing imprecision that makes it a coat of many colors." {Link without Title} It is important to note that both the term "living Constitution" and the framework it describes is used primarily by its critics. The term is rarely used by the alleged adherents of the philosophy, many of whom see it as a canard of liberal jurisprudence and a Straw-man tactic by their adversaries. Opponents of the doctrine tend to use the term as an ephithet synonymous with Judicial Activism . (Itself a hotly debated phrase.) However, just as some conservative theorists have embraced the term Constitution In Exile (which similarly gained popularity through use by liberal critics), a few liberals have recently embraced the image of a living document as appealing. Whether this will become a trend remains to be seen. The views of constitutional law scholar Laurence Tribe are often described by conservative critics such as Robert Bork as being characteristic of the “living Constitution paradigm” they condemn. Bork labels Tribe’s approach as "protean," meaning that it was whatever Tribe needed it to be to reach a desired policy outcome. (Tribe rejects both the term and the description) Such a construction appears to define “living Constitution” doctrine as being an ends dictate the means anti-law philosophy. Some liberal constitutional scholars have since implied a similar charge of intellectual dishonesty regarding originalists, noting that they virtually never reach outcomes with which they disgaree. (Many academic political scientists believe that justices and appeals judges are willing to alter their outcomes to attain philosophical majorities on certain questions.) In or The Moral Constitution might be implicated. As stated above, references to "the living Constitution" are relatively rare among legal academics and judges, who generally prefer to use language that is specific and less rhetorical. It is also worth noting that there is disagreement among opponents of "the living Constitution" about whether the idea is the same as, implied by, or assumed by Judicial Activism , which has a similar ambiguity of meaning and is also used primarily as an epithet. Justice Scalia's Reported Comments on "Living Constitution" Justice Antonin Scalia has routinely castigated "living Constitution" doctrine. In one particularly strongly-worded attack, he noted that: 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. But you would have to be an idiot to believe that; the Constitution is not a living organism; it is a legal document. It says something and doesn't say other things . . . [Proponents of the living constitution want matters to be decided not by the people, but by the justices of the Supreme Court . . . They are not looking for legal flexibility, they are looking for rigidity, whether it's the right to abortion or the right to homosexual activity, they want that right to be embedded from coast to coast and to be unchangeable.""[2] IN CANADA In Canada , the living constitution is described under the '' Living Tree Doctrine ''. ''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.'', December 2004 REFERENCES SEE ALSO |
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