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.