Living Constitution Questions

Question

1.) What is the approach to deciding cases taken by justices who embrace Living Constitutionalism?

2.) What are its strengths?

3.) What are its shortcomings?

4.) How does Living Constitutionalism relate to American notions of democracy?

Answer 1

Living Constitutionalism is a belief system that states the constitution should be subject to how society and its needs and beliefs change over time.

1) Justices who believe in living constitutionalism will balance tradition and precedent with reason and current thought and knowledge. For example, the Miranda Warning became established policy when, in 1966, the court established that persons accused of a crime has to be told his or her rights before any questioning by police can occur. The court was divided 5-4 over this decision. The justices who supported the mandatory nature of giving the warning did so by reasoning that an individual has rights that supersede the greater good. Those who dissented said there was no precedence in the interpretation of the Constitution that this warning be mandatory.

2) The main strength of living constitutionalism is that it recognizes that beliefs change over time (women can vote) and that words change over time. For example, the words "the right to beaer and keep arms" seems to be straight-forward. But today many people ask, "Does "arms" include automatic weapons and assault weapons?"

3) The main weakness of this method of interpreting the Constitution is that judges can become activists. That is, their decisions can be based on their personal beliefs rather than what the Constitution is actually saying.

4) American democracy is a representative democracy. Citizens vote for their policy makers. Justices are not elected, but appointed by the President of the United States and confirmed by the Senate. Presidents tend to nominate judges who share many of the same political and social beliefs. Citizens can lobby their Senators as to whether to support the nominee or not. The other way citizens can attempt to influence the court's thinking is to file an amicus curiae brief, a legal document that argues in support of or against a party in an appeals case. The individual or group that files the amicus curiae brief is not a party in the appeal, but does have an interest in the outcome.

I hope this answer is helpful to you. There have been books written about the questions you put forth. If you need me to clarify anything I wrote, please don't hesitate to ask.