How can the Constitution be referred to as a living document?
When our founding fathers created the
Constitution they realized that any document meant to frame a
government needed flexibility. They wanted the Constitution to be
able to stand for generation after generation. In recognizing this
they incorporated two important features:
Article 1, Section 8, Clause 18
In this clause our founding fathers state
that congress may pass all laws
necessary and proper. This then
allows for a loose interpretation of the constitution and allows
constitutional flexibility. Thomas Jefferson was very much opposed to
this clause and as you can well imagine Alexander Hamilton was it’s
Some examples of the elastic clause in
action include Hamilton’s creation of the National Bank and
Jefferson’s purchase of the Louisiana Territory from Napoleon. The
fact that Jefferson actually used the elastic clause is an irony not
lost on either Hamilton or Jefferson.
Here is the original text:
To make all Laws which shall be necessary
and proper for carrying into Execution the foregoing Powers, and all
other Powers vested by this Constitution in the Government of the
United States, or in any Department or Officer thereof.
There are several ways to amend, change, the
STEP ONE – Proposal
- Must pass 2/3 the House of
Representatives and the Senate.
- Must pass 2/3 of states at a National
Constitutional Convention if one is called.
STEP TWO – Ratification
- 3/4 of the state legislatures must vote
- 3/4 of state held conventions.
Here is the text from the
The Congress, whenever two thirds of both
houses shall deem it necessary, shall propose amendments to this
Constitution, or, on the application of the Legislatures of two
thirds of the several States, shall call a convention for proposing
amendments, which, in either case, shall be valid to all intents and
purposes, as part of this Constitution, when ratified by the
Legislatures of three fourths of the several States, or by
conventions in three fourths thereof, as the one or the other mode of
ratification may be proposed by the Congress; provided that no
amendment which may be made prior to the Year One thousand eight
hundred and eight shall in any manner affect the first and fourth
Clauses in the Ninth Section of the first Article; and that no State,
without its consent, shall be deprived of it’s equal suffrage in the
JUDICIAL REVIEW AND
The court, through the power of judicial
review, lends a certain flexibility to the Constitution. When
justices make a decision, take for example Roe v Wade, they are
interpreting what the Constitution meant and said. In Roe, Justice
Blackmun claimed that women had had a “right to privacy” and that as
a result the state could not pass laws restricting women from having
abortions. There is nowhere, however, in the Constitution where you
will find this “right to privacy.” Blackmun and others on the bench
determined via interpretation that it was understood. They felt that
the umbrella of Constitutional protections in the Bill of Rights
created an unstated right to privacy. Other Supreme Courts have
agreed. There are many other examples of interpretation as well.
For example, in Gideon v Wainright the Court ruled that a lawyer had
to be provided if the accused could not afford one. The Constitution
merely states that citizens RIGHT to lawyer cannot be infringed. The
Court interpreted this to mean that the state had to provide one if
you can not afford one. There is nothing to say that later courts
can not disagree and change the official interpretation of the
Constitution but this too provides flexibility to meet the needs of a
It should be noted that this is not even in
the Constitution, it is custom or precedent. This speaks to the
evolving and flexible nature of the document.
All of these portions of the
constitution provide for flexibility and enable the constitution to
truly be a “living” document.