by Kevin Mccaffrey

Created on: December 21, 2009   Last Updated: December 23, 2009

The question of whether the U.S. Constitution should be a “Living” document appears to lie more with the changing interpretations of the Constitution’s existing content as a matter of law than the mechanism by which the document itself can be changed. 

Article V of the Constitution clearly defines the procedures by which changes of content can be made and as a matter of technicality the document can be said to be “Living” through this fact alone.  However, I think anyone who has ever analyzed Constitutional Law and its interpretation through history is well aware of the malleable nature of the Law of the Land. 

What brought about this reality is the assumption of the power of Judicial Review of the Constitution by the Supreme Court under Marbury v. Madison.  Here is the first evidence of the Constitution being viewed as a “Living” document whereby one branch of the government in essence annexed powers not specifically assigned to it by the document’s creators. 

The environment that allowed this to occur was one mostly of practical considerations. In Marbury you had a situation where a legitimate legal petition was presented that required a judgment of law by some formal authority whose responsibility was not clearly spelled out in the young and somewhat incomplete U.S. Constitution. 

While Article V would have provided a mechanism for the Federal and State governments to correct this oversight, real relief of the situation at hand could not have been handled in an expeditious manner and would likely have required an arduous multi-year process to propose, discuss, agree and vote on a measure to properly assign this authority.  

The victory in the Marbury case was not that the Supreme Court assumed this power but that our new representative government developed a mechanism to flexibly address gaps in the legal language to bring about a functional enactment of law to address issues of either oversight or contentious deadlock. 

Had the Constitution’s creators attempted to clarity every individual gap or point of contention, we would have not formed a government and would still be debating the issues today. Preferable as it may be that all rights and responsibilities of government be clearly spelled out in the text of the Constitution, the reality is that human nature prevents lawmakers from being ultimately thorough. 

The most contentious issues of the day will always be the ones to bear the most scrutiny and by design are most likely to deadlock in the hands of lawmakers (i.e. the abortion debate).   

Despite the reality of deadlock, we as a people still are required to rule by law and it is unacceptable to have no mechanism to apply some version of law where such a void exists.  It is due to this that we have the Supreme Court, flawed as it may be, to apply some version of law hopefully in the best spirit of the values defined in the Constitution. 

Our highest court whose members rank amongst the most esteemed legal scholars, must take on this function as it is best positioned to make such assessments and act as the executor of arbitrary law.  

This no doubt is objectionable to many in the voting classes but those who are dissuaded still have the opportunity to attempt to resolve their frustrations via Constitutional modifications through Article V.  

Think then of the Constitution as a “Living Document” as a legal doctrine unto itself that represents the last piece of the puzzle that completes the reality of ultimate rule of law by the people and for the people.

Learn more about this author, Kevin Mccaffrey.
Click here to send this author comments or questions.