Interpreting Constitution has always been a difficult question in the USA due to the fact that particularly the Constitution provides framework regulations for most important spheres of life and also contains a variety of open-ended clauses. Taken the dynamic nature of society’s development, I see myself as a proponent of “Living Constitution”. The “Living Constitution” can be defined as the Constitution that changes over time and gets adapted to the new external circumstances without the procedure of formal amendment.
The idea of the “Living Constitution” is logical and responds to the need of society in several ways. First of all, it can be noted that there is no feasible alternative to the “Living Constitution”. The U.S. Constitution was adopted more than 200 hundred years ago, and a variety of multifaceted changes has taken place since that time. As the formal amendment procedure is extremely complicated, providing a significant room for court interpretation is the only means to prevent the Constitution from becoming outdated and not granting sufficient protection of fundamental rights.
Secondly, as it is emphasized in the David Souter’s Commencement Speech at Harvard University, it is vital to understand that the Constitution contains a lot of open-ended guarantees and take into account the related limitations of the fair reading model. The examples of deliberately open-ended constitutional guarantees include the right to equal protection by the law, due processes clause and the right to freedom from unreasonable searches and seizures (Souter 2). With regard to the above guarantees, the application of the fair reading model is highly limited, because the consideration of cases requires highly elaborate reasoning, taken a vary general language, used in many legal acts. Moreover, as it is also underlined by David Souter fair reading is not enough to interpret the U.S. Constitution due to the nature of its scope. Souter addresses the Constitution as a “pantheon of values” that frequently intersect (Souter 2-3). Therefore, the “Living Constitution” serves as a useful tool to balance the values and ensure that the interplay of values responds to the changing circumstances.
Despite the fact that the “Living Constitution” is a good and even essential idea to retain flexibility and adaptability to societal changes, there are still considerations to be taken into account. Firstly, there is a need to maintain the balance between flexibility and rigidity, so that apparently unconstitutional ideas do not get into the Constitution (Scalia 4). In this regard, it is crucial to consider political influences on the Constitution to prevent its dynamic nature from becoming a political tool to promote specific programs and ideas. Secondly, the flexibility of the Constitution can be an important obstacle for its legitimacy in the eyes of the citizens. Finally, if some new ideas and norms arise in terms of the interpretation of the Constitution, it is essential to prove that they reflect specific societal changes, rather than the views of specific lobbies (Scalia 5). That is why the adoption of the idea of the “Living Constitution” requires elaborating specific mechanisms, allowing balancing flexibility and rigidity and protecting the Constitution from becoming unconstitutional and illegitimate.
Notwithstanding that, I support the idea of the “Living Constitution”, given the fact that this concept allows including newest developments of political, economic and social life into the Constitution of the U.S. However, while adhering to the concept of the “Living Constitution” I recognize the need to balance stabilizing function of the Constitution.
Works cited
Scalia, A. “Constitutional interpretation the old-fashioned way”. Boston College, 2005. Web. 29 February 2016
Souter, D. “Text of Justice David Souter’s Speech” Harvard Gazette, 2010. Web. 29 February 2016
