Living Constitution

In United States constitutional interpretation, the Living Constitution (or loose constructionism) is the claim that the Constitution has a dynamic meaning or that it has the properties of an animate being in the sense that it changes. The idea is associated with views that contemporaneous society should be taken into account when interpreting key constitutional phrases.

While the arguments for the Living Constitution vary, they can generally be broken into two categories. First, the pragmatist view contends that interpreting the Constitution in accordance with its original meaning or intent is sometimes unacceptable as a policy matter, and thus that an evolving interpretation is necessary. The second, relating to intent, contends that the constitutional framers specifically wrote the Constitution in broad and flexible terms to create such a dynamic, "living" document. Opponents of the idea often argue that the Constitution should be changed through the amendment process, and that allowing judges to determine an ever-changing meaning of the constitution undermines democracy. The primary alternative to the Living Constitution is most commonly described as originalism.

The phrase originally derives from the title of a 1927 book of that name by Professor Howard Lee McBain, while early efforts at developing the concept in modern form have been credited to figures including Oliver Wendell Holmes Jr., Louis D. Brandeis, and Woodrow Wilson. The earliest mentions of the Constitution as "living", particularly in the context of a new way of interpreting it, comes out of Woodrow Wilson's book Constitutional Government in the United States where he wrote:

Living political constitutions must be Darwinian in structure and in practice.

Wilson strengthened this view, at least publicly, while he campaigned for President in 1912. He said:

Society is a living organism and must obey the laws of life, not of mechanics; it must develop. All that progressives ask or desire is permission - in an era when "development," "evolution," is the scientific word - to interpret the Constitution according to the Darwinian principle; all they ask is recognition of the fact that a nation is a living thing and not a machine.

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