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A living constitution: Its meaning and historical background

By Robert S. Sargent, Jr.
web posted February 6, 2006

[The] chief contribution of the Progressive movement to American political thought was its discovery of the essentially undemocratic nature of the federal constitution. -- V.L. Parington

There are essentially two philosophies to our approach to the Constitution. One, some call "originalism," views the Constitution as a legal document in which the text ties the hands of Justices. This view is generally held by conservatives. The other is the "Living Constitution," which "evolves in response to social forces and political events." (Herman Belz: A Living Constitution or Fundamental Law?) This view is held by liberals who see the courts as partners in achieving their agenda. Understanding this difference is essential to understanding today's fractured nomination process. And to understand the meaning of the living constitution, one must look at history.

Around 1890 a movement we call the "Progressive" movement had begun. Richard Hofstadter in The Age of Reform, wrote: "Progressivism was characterized by a…concern with urban problems – labor and social welfare, municipal reform, the interest of the consumer…Curiously, the Progressive revolt…took place almost entirely during a period of sustained and general prosperity…." Even though Hofstadter admits this is a "challenge to the historian," he tries to explain the revolt by quoting the writer Walter Weyl in talking about what was seen as a growing plutocracy. "…an increasing bitterness is felt by a majority which is not worse, but better off than before. This majority suffers not an absolute decline but a relatively slower growth. It objects that the plutocracy grows too fast…there is a rate of growth which is positively immoral…To a considerable extent the plutocracy is hated not for what it does but for what it is."

This revolt, as Hofstadter points out, was joined by "…large sections of the intellectuals [and] the professional and opinion-making classes…Beginning slowly in the 1890's and increasingly in the next two decades, members of these professions deserted the standpat conservatism of the post-Civil Was era to join the mainstream of liberal dissent and to give it both moral and intellectual leadership." Why? "Not the least of their grievances was the fact that their professional affairs were under the control of the plutocracy, since boards of trustees were often composed of those very businessmen who in other areas of life were becoming suspect for their predatory and immoral lives." For whatever reason, as William Allen White wrote, they had a "…quickening sense of the inequities, injustices, and fundamental wrongs [of American society]."

What does all this have to do with the Constitution? The Progressives increasingly came to see the Constitution as standing in the way of social reform. In Herman Belz's book, referred to above, he writes "The traditional constitutionalist's belief in the value of limited government seemed hopelessly out of place in the face of social and economic needs requiring decisive governmental action. Constitutionalism appeared to be essentially a defense of existing property rights and economic power which prevented effective political action." This rejection of the concept that the Constitution is a static legal document was called "Constitutional realism," and the radical realists dismissed completely the text of the Constitution as being irrelevant to modern government.

The realists had a problem, of course, in that the written Constitution did not allow the central federal government to play an active role in the creation of broad social policy. (The 10th Amendment says, "The powers not delegated to the United States by the Constitution…are reserved to the states…" "Broad social policy" is not an enumerated power.) How were they to deal with changing such a hallowed document? The quote at the beginning of this article refers to Charles Beard's An Economic Interpretation of the Constitution (1913). This book, which tried to show that the Founders were selfishly trying to protect their personal property, rather than writing a democratic document, "had an immense success," as the great historian Samuel E. Morrison wrote, "promptly becoming the Progressive's Bible. Through it, Beard probably contributed more than any other writer except Henry L. Menken, to the scornful attitude of intellectuals toward American institutions, that followed World War I." One of the main "institutions" intellectuals directed their scorn towards, was the Constitution itself. Charles Beard, and others, laid the groundwork for a whole new way of viewing the Constitution, a way which allowed the courts to become partners in social reform.

A "Living Constitution" is a concept derived from Oliver Wendell Holmes, Jr.'s opinion that "The life of the law has not been logic, but experience." Herman Belz wrote: "The rhetoric of living constitutionalism was compatible with the notion of ‘process jurisprudence,' the middle ground that New Deal lawyers staked out between conservative declaratory jurisprudence based on orthodox written constitutionalism and radical legal realism." The Living Constitution defined "…fundamental law as an adaptive, growing social organism. Superficially and formally a written document, the Constitution was really statutes, executive and administrative orders, judicial decision, cultural attitudes and values, and public opinion and beliefs, all evolving in response to social forces and political events." It's easy to see under the "Living Constitution" jurisprudence, that justices, liberated from the text of the Constitution, may make decisions that, in their view, reflect the changing values and attitudes of society.

It is also easy to see why the liberals on the Judiciary Committee go ballistics when an "originalist" conservative judge is nominated. If the text of the Constitution, including the 10th Amendment, and the meaning of the Constitution according to the Founders, is what guides the Supreme Court, then the liberal agenda will never be realized.

Robert S. Sargent, Jr. is a senior writer for Enter Stage Right and can be reached at rssjr@citcom.net.

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