The Living Constitution

The Living Constitution

This approach is an alternative to originalism and is based on the idea that the Constitution has to be applied to modern circumstances. In part, this is based on a view that the Founding Fathers intended the Constitution to be an organic or living document. The Living Constitution approach, or loose constructionism, recognises the practical difficulty of applying an originalist position. What did the Fathers think about video games or mobile phones? It can also be based on the idea that originalism may yield unacceptable rulings in modern society. For example, it may have been acceptable in the past for the president to consult Congress before military action. The advent of nuclear missiles and jet engines may make such requirements less palatable. One majority opinion of the Court has asserted the necessity of the Court to 'draw its meaning from the evolving standards of decency' in applying the vague 8th amendment. The Living Constitution approach tends to ignore the practice of stare decisis in which court rulings are based on precedent. The use of stare decisis would restrict the Living Constitution approach.

Two views of originalism