The Notion of a Living Constitution
WILLIAM H. REHNQUIST
Chief Justice, Supreme Court of the United States
At least one of the more than half-dozen persons nominated during the past decade to be an Associate Justice of the Supreme Court of the United States has been asked by the Senate Judiciary Committee at his confirmation hearings whether he believed in a living Constitution. 1 It is not an easy question to answer; the phrase "living Constitution" has about it a teasing imprecision that makes it a coat of many colors.
One's first reaction tends to be along the lines of public relations or ideological sex appeal, I suppose. At first blush it seems certain that a living Constitution is better than what must be its counterpart, a dead Constitution. It would seem that only a necrophile could disagree. If we could get one of the major public opinion research firms in the country to sample public opinion concerning whether the United States Constitution should be living or dead, the overwhelming majority of the responses doubtless would favor a living Constitution.
The phrase is really a shorthand expression that is susceptible of at least two quite different meanings. The first meaning was expressed over a half- century ago by Mr. Justice Holmes in Missouri v. Holland2 with his customary felicity when he said:
. . . When we are dealing with words that also are a constituent act, like the Constitution of the United States, we must realize that they have called into life a being the development of which could not have been foreseen completely by the most gifted of its begetters. It was enough for them to realize or to hope that they had created an organism; it has taken a century and has cost their successors much sweat and blood to prove that they created a nation. 3
I shall refer to this interpretation of the phrase "living Constitution," with which scarcely anyone would disagree, as the Holmes version.