James Paul Cosgrove

Mr. Sisnett

English Comp. I

25 September 2006

On the Living Constitution and Judicial Activism

This summer, while attending the Arkansas Governor’s School, Phyllis Schlafly,

the renowned conservative grassroots politician, came and spoke to us about judicial activism

and its dangers. She asserted that the United States Constitution should be interpreted according

to the literal meanings implied by the founding fathers. She believes that the Constitution is a

static, not dynamic document, a belief I am vehemently opposed to. The Constitution, for me, is

an extraordinary document because it allows itself to evolve to suit our dynamic American

society; that is, it is a Living Constitution.

The idea of a Living Constitution is one that has stirred up fierce controversy in

our society as of late. Conservatives claim that liberals want to take the constitution and “run

with it,” as it were, and hold to no fixed ideals of what is lawful or unlawful; liberals claim that

conservatives are against progress and want to revert to archaic methods. Judges that have an

Originalist frame of reference concerning the Constitution reject the idea that contemporary

standards should determine the interpretation of the Constitution, while Living Constitutionalist

judges believe they should. This debate is one that clearly crosses party lines, in that judges of

both persuasions have manipulated the Constitution when interpreting laws. However, because

of their liberal views, Living Constitutionalist judges are more often accused of judicial activism.
 Ms. Schlafly stated

that many judges interpret Constitutional laws according to their own political agenda and their

rulings are thus slanted. Judicial activism describes an act of legal interpretation that critics

consider to take on a certain political reasoning, rather than an application of stated law, and is

the most common misconception regarding the idea of a Living Constitution. Famous cases

involving alleged judicial activism include Dred Scott, Row vs. Wade, Plessy vs. Ferguson, and

Brown vs. Board of Education. Opponents of the Living Constitution assert that if one interprets

the Constitution according to contemporary mores, the original meaning of the document will be

lost, and society will disintegrate into lawlessness. This is a logical fallacy, in that Originalists do

not have sufficient evidence supporting the claim that such events will occur. Secondly, it is

argued that Originalist judges who rule according to their own political stances are just as guilty

of activism as Living Constitutionalist judges.

The question I present to Originalists is this: How can a document that was

framed over 200 years ago when there were thirteen states with an agricultural economy govern

an industrialized empire of 300 million people? My answer is simple: The founding fathers

intended our Constitution to be a living, breathing document. They understood that, in time,

American society would change drastically, and our chief governing document would have to

change as well. This, I believe, is the most strikingly elegant feature of the United States

Constitution. To me, our Constitution represents a dynamic, ingeniously framed document, one

that will span generations and still be as relevant in 2089 as it was in 1789.