Living constitutionalism: interpretation and evolution

Living Constitutionalism

As the leader of the free world, the United States remains in the limelight as the rest of the world keeps a keen eye on how they conduct their affairs. As it appertains to constitutional interpretation, the U.S. has a sound philosophy dubbed 'living constitutionalism.' In the American constitutional dispensation, as in other countries, the letter of the law is unequivocal. That notwithstanding, many agree that every society is dynamic in nature. As such, as society keeps changing, there is a growing need for the constitution to be equally as dynamic in view of various considerations. Implementing and enforcing the letter of the law as stated in constitutional clauses often has its shortcomings. The concept 'Living Constitutionalism' revolves around humanizing the law. By adding the element of humanity in the law, the constitution gains a dynamic element. This idea relates to the view of the society as contemporaneous, which introduces the need for rational interpretation of key provisions in the constitutional dispensation. Even as America embraces the spirit of living constitutionalism, a section of commentators has denounced it. Opponents to living constitutionalism claim that it is a sham and that society ought to refrain from trying to change the letter of the law. Some of the most vocal commentators reckon that by branding it a living constitution, constitutional interpreters willfully manipulate the course of justice.

In bid to strike a compromise between the opposing viewpoints, this paper seeks to acknowledge that while both arguments are valid, there is a growing need for a dynamic framework that is consistent with the growing needs of the American society as they constantly change. The constitution itself is not a source of law per se; it provides foundation for legal concepts that govern the society. The provisions therein are organic, living provisions rather than mathematical formulas.

Background

The Constitution of the United States came into force on September 17, 1787 following its adoption by the Constitutional Convention in Philadelphia, Pennsylvania

. This happened barely a decade since Thomas Jefferson drafted the United States Declaration of Independence. There has since been numerous legal and law changes effected by the legislature and the judiciary through constitutional amendments and judicial precedents respectively. The constitution came into effect on March 4, 1789 following its ratification by conventions in eleven states. An estimated three-quarter of the states ratified the ten initial constitutional amendments popularly known as the Bill of Rights in 1791

. The U.S. Constitution has since undergone numerous changes in form of legislative amendment seventeen times bringing the number of amendments to 27; the courts apply the principles of the constitution by virtue of judicial review. The U.S. Congress bears the mandate of approving all amendments to the constitution. Sources retrieved from annals indicate that Article V of the original text governs the procedure for amending the U.S. Constitution. Over the years, there have been numerous proposals for amendments tabled on the floor of the U.S. Congress but not acquiesced to the states. Article V stipulates the processes involved before an amendment can take effect. To begin with, Congress proposes a prospective amendment to the states via a Congressional vote i.e. A two-thirds vote by both houses of Congress proposes. Subsequently, before an amendment can take effect, three quarters of the states -- or by three quarters of the conventions thereof -- must ratify the amendment. Congress determines the method of ratification at the time of the proposal. Sources indicate that the states have never called any convention for proposing amendments to date. Likewise, the convention method of ratification was only employed once in 1933 for the ratification of the twenty-first amendment

Literature Review

Issues of constitutional law have taken centre stage in legal discourses in the United States. The United States legal jurisdiction differs significantly from that of other Commonwealth countries

. For instance, while Commonwealth countries have bench judges for criminal cases, the United States has twelve individuals serving as a 'jury of the suspect's peer.' In Commonwealth states of Australia and the United Kingdom, the preceding judge issues a ruling while in America, a unanimous verdict by the jury takes the day. In David Strauss' discourse dubbed The Living Constitution, the author likens constitutional law to common law based on common sense judgments and judicial precedents based on equity, fairness and pragmatism

. Coming as it does from Strauss' argument, the concept 'living constitution' takes a toll on the American legal jurisdiction with a section of legal theorists second the contention that constitutional justice revolves around equity and fairness in the estimation of a reasonable constitutional interpreter. According to Strauss, the concept 'living constitutionalism' encompasses the broader realms of social, cultural and political considerations as well as shared understanding based on reasonable judgments

. The American living constitution is a body of dynamic common law in the sense that it responds to the ever-changing dynamics of the society.

In When the Wise Latina Judge Meets a Living Constitution: Why It Is a Matter of Perspective

, Laura Hernandez espouses her vision of the concept 'living constitutionalism.' She begins by looking at the then Senator Barrack Obama's speeches while he announced his bid for presidency. Obama enunciated that while making Supreme Court appointments, the most admirable quality he would look for in an individual would be 'empathy.' Obama noted that empathy towards the less fortunate in the society would be his first choice. Usually, sitting presidents sought education, influence in the society and other considerations; however, Barrack laid emphasis on idiosyncratic values and personal attributes while making his appointment. He was under the impression that a juror who would seek to incorporate plausibility and pragmatism in his/her judgments would be more valuable that one who would seek to implement the law to the letter. When time came, President Obama appointed Sonia Sotomayor, a sitting federal appellate juror of the Hispanic origin. Given Sotomayor's impression in landmark rulings, Obama's choice was hailed as historic, transformative and reasonable. The goal was to appoint a reasonable person who would appreciate the growing dynamics of the society while making their judgments.

According to Volume 61 of the Vanderbilt Law Review, there is a growing need to incorporate aspects of the changing society dynamics in law; any given constitutional dispensation should adapt to the dynamic nature of the contemporary society in bid to avoid making unreasonable interpretations that encroach on reasonable considerations. Echoing the same thoughts, Matthew Steilen of the State University of New York at Buffalo reckons that though the constitution explicitly expresses the letter of the law, originality, as espoused in the constitutional dispensation, appears to be implausible and unreasonable in face of new developments as the society changes over time. For instance, though the enactment of the Thirteenth Amendment outlawed slavery and involuntary servitude, the American society was reluctant to recognize the Freedmen as Americans especially after Chief Justice Robert Taney ruled that the African-American are beings of an inferior order had no rights which the white man was bound to respect. This landmark ruling in Dred Scott v. Sandford, 60 U.S. 393 (1857)

was one of the most draconian rulings in American history. Chief Justice Taney's ruling set a judicial precedent that African-Americans were inferior. However, as many would agree, this ruling was distasteful, prejudicial and appalling to say the least; enforcing such a consideration would be in bad taste for humanity. With a living constitution, this trend would change as it did upon the enactment of the Fourteenth and Fifteenth Amends that overturned Taney's ruling in the Dred Scott Case. This is the essence of living constitutionalism; changing the draconian letter of the law into reasonable judgments.

The concept 'living constitutionalism' lies deeply in the spirit of American exceptionalism. As the world's superpower nation, America has proclaimed itself the 'leader of the free world' conferring on itself the mandate to 'care for and protect' the world. In the opening statement of his inaugural address to the nation following his entry into the Oval Office, his first State of the Union message, Ronald Reagan spoke very highly of the United States. He described America as "this last and greatest bastion of freedom" and, towards the end of his speech, Reagan acclaimed that America was "the last best hope of man on earth." Reagan's sensational remarks aired around the world as the western media sensationally over publicized the issue. It is quite challenging to decide whether these remarks were subtly crafted to elicit certain sentiments about the United States, or they were just innocent patriotic remarks. Either way, Ronald Reagan was perpetuating what has turned out to be one of America's major myths. A 1987 cover story in TIME magazine's July issue titled Rediscovering America tackled this issue. The cover story discussed the American myth of 'exceptionalism' as it has come to be called, where Americans believe they are "a new order of man" "a Chosen People," and that America was like a city on a hill for all the world to see, marvel at, emulate and aspire to. This exceptionalism myth is entrenched in the hackneyed national ethos dubbed 'the American dream,' which highlights a set of ideals such as equal opportunities for success, prosperity, and upward social mobility

During the campaign trail ahead of the November 2012 presidential poll, President Barack Obama affirmed that while he believed in America as 'the indispensable nation' and the 'leader of the free world,' he did not think that it was any greater than, say, Vietnamese exceptionalism, British exceptionalism or any other country's brand of nationalistic and patriotic chest-thumping. Obama reiterated that greatness lies in humility and the desire to acknowledge other countries' integrity; as a leader of the free world, America should be humble and unpretentious

DISCUSSION

As stipulated in the American constitutional dispensation, the letter of the law is unequivocal. That notwithstanding, many agree that every society is dynamic in nature. As such, as society keeps changing, there is a growing need for the constitution to be equally as dynamic in view of various considerations. Implementing and enforcing the letter of the law as stated in constitutional clauses often has its shortcomings. For instance, the United States is a nation that embraces democracy as an integral part of its political economy. Democracy connotes the 'will of the majority.' However, in view of the concern that the will of the majority would bring about tyranny of numbers, the American electoral system incorporates the Electoral College of delegates in bid to achieve balance. The Electoral College, though criticized by many as draconian, mitigates the adversity of mediocrity of democracy. In the American criminal jurisdiction, they have juries comprising upright citizens taking into account ethnic, racial and gender considerations. The role of the jury is to humanize the law since the letter of the law would be unrealistic if implemented to the core

The concept 'Living Constitutionalism' revolves around humanizing the law. By adding the element of humanity in the law, the constitution gains a dynamic element. This idea relates to the view of the society as contemporaneous, which introduces the need for rational interpretation of key provisions in the constitutional dispensation. The pragmatic view of living constitutionalism seeks to avoid the enforcement of repulsive clauses, which is why constant amendment of the constitution becomes vital. Experts claim that while drafting the document, the constitutional framers used 'loose terms' to leave room for future changes in view of the fact that the society is dynamic in nature for the law to be implemented to the letter.

Even while America embraces the spirit of living constitutionalism, a section of commentators has denounced it. Opponents to living constitutionalism claim that it is a sham and that society ought to refrain from trying to change the letter of the law. Some of the most vocal commentators reckon that by branding it a living constitution, constitutional interpreters willfully manipulate the course of justice. They believe that living constitutionalism is a subtle and crafty means of encouraging legislative and judicial activism with the aim of rewriting the law as originally envisioned by the constitutional framers years ago. Gilbert Madison, a professor at the University of Nairobi argues that the constitution is the most supreme source of law in any given country and as such, people ought to respect what it entails. Madison believes that any form of legislative or judicial activism undermines the spirit of constitutional supremacy. Echoing the same views, conservative republicans believe that the best constitutional interpreters ought to do is to discern what the framers intended as opposed to rewriting the letter of the law

In response to some of the concerns raised by constitutional hardliners, popular ex-president, Ronald Reagan once explained that a living constitution represents the view of a dynamic framework that is consistent with the growing needs of the American society as they constantly change. Proponents of living constitutionalism draw their argument from the fact that the constitution itself is silent as it appertains to constitutional interpretation. While the framers of the U.S. Constitution, most of who were prominent legal theorists and lawyers, presented the document, they knew all too well that providing a strict methodology of interpretation would create a rigid dispensation that would disallow reasonable interpretation in the future. Had they envisioned a rigid constitutional dispensation, they would have indicated as much in the document itself; by choosing to leave space for reasonable interpretation, constitutional framers sought to mitigate that problem

Constitutional expert, Annabel Hathaway of the University of Stanford explains that in an attempt to understand the concept 'living constitutionalism', it is prudent for people to view the constitution as the foundation for legal concepts that govern the society instead of viewing it merely as the source of law. As a living constitution therefore, the American dispensation provides a set of laws that ought to guide governance of the society within the framework of sound legal institutions. While seconding this debate, Olivia Wendell Holmes Jr. wrote that the provisions in the American constitution are organic, living provisions rather than mathematical formulas.

There issue of living constitutionalism has sparked intense debate amid divergent ideologies held by various parties. It has become, to that extent, a partisan political issue and a divisive one at that. An overwhelming number of political philosophers and legal theorists however believe that there is a growing need to accommodate the fact that the society is dynamic and as much as it changes constantly, so should the law.

Living Constitutionalism amid Contemporary Contentious Issues

As mentioned earlier, the spirit behind living constitutionalism is pragmatism. Living constitutionalism allows for deliberations on certain issues amid changing perspectives. For instance, the Second Amendment states that every citizen has a right to bear arms for purposes of their protection and self-defense. Apart from the legislative mandate to bear arms, the judiciary also endorsed citizens' entitlement to bear arms. In 2008, for instance, the U.S. Supreme Court held that Amendment II safeguards an individual's right to acquire, possess and carry firearms. The Supreme Court further issued two landmark decisions in 2008 and 2010 thereby officially establishing this interpretation. In the 2008 case: District of Columbia v. Heller, 554 U.S. 570

, the Supreme Court held that Amendment II protects an individual's right to bear arms, which are to be used for traditionally lawful purposes such as defense of property or self-defense.

Following the unfortunate gun incident where a sociopath identified as Adam Lanza, 20, opened fire claiming 26 lives at Sandy Hook Elementary School in Newtown, Connecticut, there emerged fresh calls to re-evaluate the Second Amendment. The unprecedented fatalities, as per the death toll released by Amnesty International hours later, included 20 children aged below 10 years and six adults. The unfortunate event dated December 14, 2012 sparked national outcry that rekindled the gun debate. In bid to mitigate gun violence, it would be plausible to enforce stricter firearm laws, policies, and overall restrictions while amending the Second Amendment. Experts believe that dispensing with civilian right to own arms would not be beneficial to campaign against gun violence; proper firearm regulation is what would actually reduce crime.

The debate on the rights of citizens to bear arms and the need for gun control through federal or state interference remains a partisan political issue in the United States. Conservatives view gun possession as a civil rights issue; the republican ideology is that all individuals have a constitutional right to bear arms for their own protection and no authority should deprive civilians of their civil rights. The liberals, on the other hand, believe that even though citizens are entitled to bear arms for their own protection, state and federal law enforcement authorities should closely monitor the flow of such arms for national security purposes.