How can we have rule of law when judges can amend our founding document at their whim?
The term “living constitution” doesn’t poll well. That’s what Constitutional Accountability Center (CAC) president and founder Doug Kendall told participants in a teleforum sponsored by the American Association of University Women. Kendall, a self-described progressive, was explaining why other progressives need to replace the “living constitutional method” with something new. That something new, Kendall believes, is the “whole constitutional method.”
For decades, liberals (now progressives) have been advancing the living constitution approach to constitutional interpretation. The term dates back to Professor Howard McBain’s 1927 book The Living Constitution. Constitutional scholar David Strauss published a book with the same title just two years ago. Apparently Strauss had not seen the polling data, or maybe it is only in the last few months that the term “living constitution” fell out of favor.
In a nutshell, the idea of the “living constitution” is that a constitution drafted in 1787 cannot possibly serve the needs of a twenty-first-century society. So it is incumbent on the courts to adapt the Constitution to modern conditions and changed values. Textualists and originalists object that this approach defeats the liberty-protecting, power-restraining purposes of the Constitution. How can we have the rule of law, they ask rhetorically, if judges are free to effectively amend the Constitution.CONTINUE READING