The notion of a living constitution.

• Author: Rehnquist, William H.

At least one of the more than half-dozen persons nominated during the past decade to be an Associate Justice of the Supreme Court of the United States has been asked by the Senate Judiciary Committee at his confirmation hearings whether he believed in a living Constitution. (1) It is not an easy question to answer; the phrase "living Constitution" has about it a teasing imprecision that makes it a coat of many colors.

One's first reaction tends to be along the lines of public relations or ideological sex appeal I suppose. At first blush it seems certain that a living Constitution is better than what must be its counterpart, a dead Constitution. It would seem that only a necrophile could disagree. If we could get one of the major public opinion research firms in the country to sample public opinion concerning whether the United States Constitution should be living or dead, the overwhelming majority of the responses doubtless would favor a living Constitution.

If the question is worth asking a Supreme Court nominee during his confirmation hearings, however, it surely deserves to be analyzed in more than just the public relations context. While it is undoubtedly true, as Mr. Justice Holmes said, that "general propositions do not decide concrete cases," (2) general phrases such as this have a way of subtly coloring the way we think about concrete cases.

Professor McBain of the Columbia University Law School published a book in 1927 entitled The Living Constitution. (3) Professor Reich of the Yale Law School entitled his contribution to a book-length symposium on Mr. Justice Black The Living Constitution and the Court's Role. (4) I think I do no injustice to either of these scholars when I say that neither of their works attempts any comprehensive definition of the phrase "living Constitution." The phrase is really a shorthand expression that is susceptible of at least two quite different meanings.

The first meaning was expressed over a half-century ago by Mr. Justice Holmes in Missouri v. Holland (5) 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. (6)

I shall refer to this interpretation of the phrase "living Constitution," with which scarcely anyone would disagree, as the Holmes version.

The framers of the Constitution wisely spoke in general language and left to succeeding generations the task of applying that language to the unceasingly changing environment in which they would live. Those who framed, adopted, and ratified the Civil War amendments (7) to the Constitution likewise used what have been aptly described as "majestic generalities" (8) in composing the fourteenth amendment. Merely because a particular activity may not have existed when the Constitution was adopted, or because the framers could not have conceived of a particular method of transacting affairs, cannot mean that general language in the Constitution may not be applied to such a course of conduct. Where the framers of the Constitution have used general language, they have given latitude to those who would later interpret the instrument to make that language applicable to cases that the framers might not have foreseen.

In my reading and travels I have sensed a second connotation of the phrase "living Constitution," however, one quite different from what I have described as the Holmes version, but which certainly has gained acceptance among some parts of the legal profession. Embodied in its most naked form, it recently came to my attention in some language from a brief that had been filed in a United States District Court on behalf of state prisoners asserting that the conditions of their confinement offended the United States Constitution. The brief urged:

 We are asking a great deal of the Court because other branches of government have abdicated their responsibility .... Prisoners are like other 'discrete and insular" minorities for whom the Court must spread its protective umbrella because no other branch of government will do so.... This Court, as the voice and conscience of contemporary society, as the measure of the modern conception of human dignity, must declare that the [named prison] and all it represents offends the Constitution of the United States and will not be tolerated. 

Here we have a living Constitution with a vengeance. Although the substitution of some other set of values for those which may be derived from the language and intent of the framers is not urged in so many words, that is surely the thrust of the message. Under this brief writer's version of the living Constitution, nonelected members of the federal judiciary may address themselves to a social problem simply because other branches of government have failed or refused to do so. These same judges, responsible to no constituency Whatever, are nonetheless acclaimed as "the voice and conscience of contemporary society."

If we were merely talking about a slogan that was being used to elect some candidate to office or to persuade the voters to ratify a constitutional amendment, elaborate dissection of a phrase such as "living Constitution" would probably not be warranted. What we are talking about, however, 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. Under the familiar principle of judicial review, the courts in construing the Constitution are, of course, authorized to invalidate laws that have been enacted by Congress or by a state legislature but that those courts find to violate some provision of the Constitution. Nevertheless, those who have pondered the matter have always recognized that the ideal of judicial review has basically antidemocratic and antimajoritarian facets that require some justification in this Nation, which prides itself on being a self-governing representative democracy.

All who have studied law, and many who have not, are familiar with John Marshall's classic defense of judicial review in his opinion for the Court in Marbury v. Madison. (9) I will summarize very briefly the thrust of that answer, with which I fully agree, because while it supports the Holmes version of the phrase "living Constitution," it also suggests some outer limits for the brief writer's version.

The ultimate source of authority in this Nation, Marshall said, is not Congress, not the states, not for that matter the Supreme Court of the United States. The people are the ultimate source of authority; they have parceled out the authority that originally resided entirely with them by adopting the original Constitution and by later amending it. They have granted some authority to the federal government and have reserved authority not granted it to the states or to...