'Living constitution' leads to 'dying constitution'?

Living constitutionalists argue that their methodology allows us to improve constitutional law over time. But what if it actually makes it worse? Legal scholar Ernest Young raises that very question in an important new article.

One of the main potential benefits of living constitutionalism is the possibility of facilitating the progress of society. As enlightened as the generation that wrote and ratified various parts of the Constitution may be, we know that this is not the case. In theory, we could use the constitutional amendment process to update the document in the light of new perspectives.

But such a formal update is extremely difficult because the Constitution is perhaps the most difficult document in the world to change. Therefore, living constitutional judgments may be necessary to ensure that constitutional law is kept abreast of new pieces of knowledge and increasing enlightenment. In this way, we can obtain a constitutional law that gradually improves without having to go through (at least in most cases) the formal process of modification (either by amendment or revision).

But a new insightful article written by Duke law professor Ernest Young casts doubt on the optimistic assumptions that underpin this point of view. What if, instead of improving constitutional interpretation over time, constitutionalism gets really worsened by the "living tree" doctrine? What happens if subsequent generations are less enlightened than original writers were, instead of more? In other words, what if the trend is toward regress rather than progress?

Prof. Ernest Young argues that this is exactly what happened during the first years of Jim Crow's era of segregation after the Reconstruction. Here is the summary of his article on "Dying Constitutionalism":

[QUOTE:] The notion of a "living Constitution" often rests on an implicit assumption that important constitutional values will "grow" in such a way as to make the Constitution more attractive over time. But there are no guarantees: What can grow can also wither and die. This essay, presented as the 2018 Robert F. Boden Lecture at Marquette University Law School, marks the sesquicentennial of the Fourteenth Amendment's ratification as a powerful charter of liberty and equality for black Americans. But for much of its early history, the Fourteenth Amendment's meaning moved in reverse, overwhelmed by the end of Reconstruction, the gradual entrenchment of Jim Crow in the South, and the consolidation of racial discrimination in the North. All of the recognized modalities of living constitutionalism—evolving public mores, social movements, electoral outcomes and landmark legislation, and common law development—contributed to constitutional changes that left the Fourteenth Amendment meaning less in the late 19th and early 20th centuries than it did at its ratification. The Amendment's early history is thus an instance of dying—not living— constitutionalism. It is far from clear, however, that alternative constitutional approaches—such as originalism—could have prevented this constitutional regression. This essay explores how the Fourteenth Amendment got so off track and whether the theory of living constitutionalism can be modified to help it hang on to the Constitution's core commitments in the face of social change. Ultimately, the essay suggests that constitutional methodology may be less important than constitutional culture in this regard, and that the culture of living constitutionalism ought to emphasize caution over optimism about the inevitability of moral progress. The Fourteenth Amendment's "lost years" offer precisely the sense of tragedy that might inspire that cultural shift. [UNQUOTE]

SOURCE: Rephrased from Does Living Constitutionalism Lead to "Dying Constitutionalism"?. Ilya Somin | November 8, 2018 4:36 pm. www.reason.com/volokh/2018/11/08/does-living-constitutionalism-lead-to-dy
Professor Young teaches constitutional law, federal courts, and foreign relations law. He is one of the nation's leading authorities on the constitutional law of federalism, having written extensively on the Rehnquist Court's "Federalist Revival" and the difficulties confronting courts as they seek to draw lines between national and state authority. He also is an active commentator on foreign relations law, where he focuses on the interaction between domestic and supranational courts and the application of international law by domestic courts. Professor Young also writes on constitutional interpretation and constitutional theory. He has been known to dabble in maritime law and comparative constitutional law.

SOURCE: Ernest A. Young. https://law.duke.edu/fac/young/. Email: young@law.duke.edu.

Under the constitutional interpretation of the United States, the living constitution doctrine (or flexible constructionism) is the assertion 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 points of view of contemporary society should be taken into account when interpreting key constitutional phrases.

SOURCE: Living Constitution. From Wikipedia, the free encyclopedia. https://en.wikipedia.org/wiki/Living_Constitution.

For Justice Brandeis such a narrow construction degraded our great charter of freedom to the level of a municipal ordinance. Quoting Chief Justice Marshall's famous — 'We must never forget that it is a Constitution we are expounding' — he pointed out that just as the power of Congress had by judicial interpretation been kept abreast of scientific progress, and extended the Fundamental Law to objects of which the Founding Fathers never dreamed, so also must the judges in construing limitations on the powers of Congress be ever mindful of changes brought about by discovery and invention. To have a living Constitution, limitations on power no less than grants of power must be construed broadly. 'Subtler and more far-reaching means of invading privacy have become available to the government,' Brandies observed. ... The progress of science in furnishing the government with means of espionage is not likely to stop with wire-tapping. Ways may some day be developed by which the government, without removing papers from secret drawers, can reproduce them in court, and by which it will be enabled to expose to a jury the most intimate occurrences of the home. (G.R. No. L-824. January 14, 1948)

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