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How can we have rule of law when judges can amend our founding document at their whim?

The term “living constitution” doesn’t poll well. That’s what Constitutional Accountability Center (CAC) president and founder Doug Kendall told participants in a teleforum sponsored by the American Association of University Women. Kendall, a self-described progressive, was explaining why other progressives need to replace the “living constitutional method” with something new. That something new, Kendall believes, is the “whole constitutional method.”

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For decades, liberals (now progressives) have been advancing the living constitution approach to constitutional interpretation. The term dates back to Professor Howard McBain’s 1927 book The Living Constitution. Constitutional scholar David Strauss published a book with the same title just two years ago. Apparently Strauss had not seen the polling data, or maybe it is only in the last few months that the term “living constitution” fell out of favor.

In a nutshell, the idea of the “living constitution” is that a constitution drafted in 1787 cannot possibly serve the needs of a twenty-first-century society. So it is incumbent on the courts to adapt the Constitution to modern conditions and changed values. Textualists and originalists object that this approach defeats the liberty-protecting, power-restraining purposes of the Constitution. How can we have the rule of law, they ask rhetorically, if judges are free to effectively amend the Constitution.

The living constitution theory has had friends in high places. Supreme Court Justice David Souter was a quiet but committed practitioner of the living constitution theory while on the Court. In a rare public appearance at Harvard’s 2010 commencement ceremony, Souter argued that the approach has been key to many important rulings of the Supreme Court, like Brown v. Board of Education. The leading advocate for living constitution theory on the current court is Justice Stephen Breyer, though in his recently published book Making Democracy Work, he calls it “pragmatism.” Perhaps Breyer got wind of the discouraging poll results.

According to Kendall, the “whole constitution method” can replace the living constitution method in interpreting the Constitution, and even more effectively advance the progressive agenda. What is the “whole constitution” method, you ask?

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First, it helps to know a little bit about Doug Kendall and his CAC. Kendall first founded the Community Rights Counsel (CRC), a public interest law firm. In addition to defending environmental and land-use regulations against takings claims, the CRC was a persistent and staunch opponent of free market-oriented judicial training programs. Kendall objected that the programs were funded by corporations and others with interests in the outcome of federal cases and that they were held at “luxurious” resorts. He feared that the federal judges were being indoctrinated.

Kendall failed to get a Congressional ban on such programs, but his public, though inaccurate, claims of bias in program content and influence by funders did manage to intimidate a majority of federal judges from attending. Given his distaste for the free market, it was not surprising that it never occurred to Kendall to offer competing judicial training programs of his own.

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