The notion of a living Constitution

By William Rehnquist

William Rehnquist on his “notion of a living constitution” begins in a rather arguably

difficult question; “do you believe in a living Constitution?” in his confirmation hearing
as an Associate Justice of the Supreme Court of United States.

In his paper, he elaborated that there are two meanings that could possibly be used
as a reference on this matter. One was expressed over a half-century ago by Mr.
Justice Holmes in Missouri v. Holland with his customary felicity when he said:

When we are dealing with words that also are a constituent act, like
the Constitution of the United States, we must realize that they have called
into life a being the development of which could not have been foreseen
completely by the most gifted of its begetters. It was enough for them to
realize or to hope that they had created an organism; it has taken a century
and has cost their successors much sweat and blood to prove that they
created a nation.

He refers to this interpretation as Holmes' version of the phrase “living Constitution”.

He noted that the framers of the Constitution wisely spoke in ‘general language’ and
left the succeeding generations the task in interpreting and applying that language in
the unceasingly changing environment in which they would live. Furthermore, those
who framed, adopted, and ratified the Civil war amendments to the Constitution
likewise used ‘majestic generalities’ in composing the fourteenth amendments merely
because a particular activity may not have existed when the Constitution was
adopted or the framers could not have thought of a particular method of transacting
affairs. Thus, using general language has given the future generation the instrument
to interpret cases of those the framers might not have foreseen.

Rehnquist, in his reading and travels, have also connoted another meaning of the
phrase “living Constitution”, one that is different from Holmes' version but has gained
acceptance among some parts of the legal profession. Embodied in its most naked
form, state prisoners have filed to the United States District Court asserting that the
condition of their confinement offended the United States Constitution. They assert
that the Court must spread its protective umbrella because other branches of
government have abdicated their responsibility. They further stated that the Court is
the voice and conscience of contemporary society, and the measure of modern
conception of human dignity. The court must declare that all offenders of the
Constitution of the United States will not be tolerated. This is a Constitution with
vengeance.

Rehnquist noted in this brief writer’s version, non-elected members of federal

judiciary may address themselves to a social problem simply because other
branches of government have failed or refused to do so. He further noted that what
“living Constitution” meant in this brief writer’s version is a suggested philosophical
approach to be used by the federal judiciary, and perhaps state judiciaries, in
exercising the very delicate responsibility of judicial review. Which in this case, the
ideal of judicial review has been recognized as basically antidemocratic and
antimajoritarian facets that requires some justification in the nation that prides itself
on being a self-governing representative democracy.
Judicial review, in John Marshall’s classic defense in Marbury v. Madison, supports
the Holmes version of “living Constitution” and it also suggests some outer limits for
the brief writer’s version.

Marshall, in his defense, stated that the ultimate source of authority in their Nation, is
not from the congress nor the state, not the Supreme Court of the United States but
its people. They have parceled out the authority that originally resides entirely with
them by adopting the original Constitution and by later amending it. They’re the one
who have granted some authority to the federal government and have reserved
authority not granted to the states or to the people individually.

Marshall, in Rehnquist letter, further states that if the popular branches of the
government are operating within the authority granted to them by the Constitution,
their judgement and not of the Court must obviously prevail but when these branches
overstep the authority given to them, the Court must prefer the Constitution over the
government acts. His justification on judicial review makes the provision for an
independent federal judiciary not only understandable but also desirable. Marshall’s
explanation, as Rehnquist noted, contains certain elements of either ingenuousness
or ingeniousness, which tends to grow larger as the constitutional history extends
over a longer period of time.

In brief writer’s version of “living Constitution”, there are at least three serious
difficulties;

1.) Misconceives the nature of the Constitution, which was designed to enable
the popularly elected branches of government, not the judicial branch, to keep
the country abreast of the times.

However, the brief writer’s version suggests that if the states’ legislatures and
governors, or congress and the President, have not solved a particular social
problem within the limit of their authority, then the federal court may act.

2.) It ignores the Supreme Court’s disastrous experiences when in the past it
embraced contemporary, fashionable notion of what a living Constitution
should contain.

The Supreme Court’s decision over the case of Dred Scott v. Sanford brought
so much debate and heated discussion to two groups of people, proslavery
and antislavery, that it made a lot of appeals containing proposed
amendments from the congress, and the Missouri Compromise which
opposed to the expansion of slavery.

The Court has stated that the decision over the case has never been one that
the Congress was entitled to make. Thus, it brought frustration amongst the
citizenry, who had thought themselves charged with responsibility for making
such decisions.

3.) Though it is socially desirable, advancing to a freewheeling, non-elected

judiciary is quite unacceptable in a democratic society. It completely ignores
the nature of political value judgements.

If the society adopts such a constitution and incorporates in that constitution

safeguards for individual liberty, these safeguards will indeed take on a
generalized moral rightness or goodness. Within the limits of our constitution,
the representative of the people will typically have various individual value
 judgments that are debated likewise take on a form of moral goodness
because they have been enacted into positive law. It’s their enactment that
gives them moral claim upon the society and not in any independent virtue it
may have in any particular citizen’s own scale of value.

Rehnquist stated that our own logical demonstration of what morally good is,
the judgement of our own conscience will only remain a personal moral
judgement unless in some way it is given the sanction of law. This is not to
say that individual moral judgment ought not to afford a springboard for action
in society. It is supposed to be difficult for any one individual or group of
individuals to impose by law their value judgement upon fellow citizens who
may disagree with those judgements and it should not be easier just because
the individual in question is a judge. The brief writer’s version of the “living
Constitution” is genuinely corrosive of the fundamental values of our
democratic society.

Rehnquist “Notion of a living Constitution” articulated the role of court in a democratic

society, concluding that judicial restraint and deference to lawmaking majorities are
essential elements of a responsible judicial system. The liberal concept of a living
Constitution, he argued, constitutes “an end run around popular government” that is
“corrosive of the fundamental values of our democratic society.”