Living Constitutionalism Term Paper

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Living Constitutionalism

As the leader of the free world, the United States remains in the limelight as the rest of the world keeps a keen eye on how they conduct their affairs. As it appertains to constitutional interpretation, the U.S. has a sound philosophy dubbed 'living constitutionalism.' In the American constitutional dispensation, as in other countries, the letter of the law is unequivocal. That notwithstanding, many agree that every society is dynamic in nature. As such, as society keeps changing, there is a growing need for the constitution to be equally as dynamic in view of various considerations. Implementing and enforcing the letter of the law as stated in constitutional clauses often has its shortcomings. The concept 'Living Constitutionalism' revolves around humanizing the law. By adding the element of humanity in the law, the constitution gains a dynamic element. This idea relates to the view of the society as contemporaneous, which introduces the need for rational interpretation of key provisions in the constitutional dispensation. Even as America embraces the spirit of living constitutionalism, a section of commentators has denounced it. Opponents to living constitutionalism claim that it is a sham and that society ought to refrain from trying to change the letter of the law. Some of the most vocal commentators reckon that by branding it a living constitution, constitutional interpreters willfully manipulate the course of justice.

In bid to strike a compromise between the opposing viewpoints, this paper seeks to acknowledge that while both arguments are valid, there is a growing need for a dynamic framework that is consistent with the growing needs of the American society as they constantly change. The constitution itself is not a source of law per se; it provides foundation for legal concepts that govern the society.

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The provisions therein are organic, living provisions rather than mathematical formulas.

Background

The Constitution of the United States came into force on September 17, 1787 following its adoption by the Constitutional Convention in Philadelphia, Pennsylvania

. This happened barely a decade since Thomas Jefferson drafted the United States Declaration of Independence. There has since been numerous legal and law changes effected by the legislature and the judiciary through constitutional amendments and judicial precedents respectively. The constitution came into effect on March 4, 1789 following its ratification by conventions in eleven states. An estimated three-quarter of the states ratified the ten initial constitutional amendments popularly known as the Bill of Rights in 1791

. The U.S. Constitution has since undergone numerous changes in form of legislative amendment seventeen times bringing the number of amendments to 27; the courts apply the principles of the constitution by virtue of judicial review. The U.S. Congress bears the mandate of approving all amendments to the constitution. Sources retrieved from annals indicate that Article V of the original text governs the procedure for amending the U.S. Constitution. Over the years, there have been numerous proposals for amendments tabled on the floor of the U.S. Congress but not acquiesced to the states. Article V stipulates the processes involved before an amendment can take effect. To begin with, Congress proposes a prospective amendment to the states via a Congressional vote i.e. A two-thirds vote by both houses of Congress proposes. Subsequently, before an amendment can take effect, three quarters of the states -- or by three quarters of the conventions thereof -- must ratify the amendment. Congress determines the method of ratification at the time of the proposal......

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