Professional Documents
Culture Documents
On The Living Constitution and Judicial Activism
On The Living Constitution and Judicial Activism
Mr. Sisnett
English Comp. I
25 September 2006
This summer, while attending the Arkansas Governor’s School, Phyllis Schlafly,
the renowned conservative grassroots politician, came and spoke to us about judicial activism
and its dangers. She asserted that the United States Constitution should be interpreted according
to the literal meanings implied by the founding fathers. She believes that the Constitution is a
static, not dynamic document, a belief I am vehemently opposed to. The Constitution, for me, is
an extraordinary document because it allows itself to evolve to suit our dynamic American
The idea of a Living Constitution is one that has stirred up fierce controversy in
our society as of late. Conservatives claim that liberals want to take the constitution and “run
with it,” as it were, and hold to no fixed ideals of what is lawful or unlawful; liberals claim that
conservatives are against progress and want to revert to archaic methods. Judges that have an
Originalist frame of reference concerning the Constitution reject the idea that contemporary
standards should determine the interpretation of the Constitution, while Living Constitutionalist
judges believe they should. This debate is one that clearly crosses party lines, in that judges of
both persuasions have manipulated the Constitution when interpreting laws. However, because
of their liberal views, Living Constitutionalist judges are more often accused of judicial activism.
Ms. Schlafly stated
that many judges interpret Constitutional laws according to their own political agenda and their
rulings are thus slanted. Judicial activism describes an act of legal interpretation that critics
consider to take on a certain political reasoning, rather than an application of stated law, and is
the most common misconception regarding the idea of a Living Constitution. Famous cases
involving alleged judicial activism include Dred Scott, Row vs. Wade, Plessy vs. Ferguson, and
Brown vs. Board of Education. Opponents of the Living Constitution assert that if one interprets
the Constitution according to contemporary mores, the original meaning of the document will be
lost, and society will disintegrate into lawlessness. This is a logical fallacy, in that Originalists do
not have sufficient evidence supporting the claim that such events will occur. Secondly, it is
argued that Originalist judges who rule according to their own political stances are just as guilty
The question I present to Originalists is this: How can a document that was
framed over 200 years ago when there were thirteen states with an agricultural economy govern
an industrialized empire of 300 million people? My answer is simple: The founding fathers
intended our Constitution to be a living, breathing document. They understood that, in time,
American society would change drastically, and our chief governing document would have to
change as well. This, I believe, is the most strikingly elegant feature of the United States
Constitution. To me, our Constitution represents a dynamic, ingeniously framed document, one
that will span generations and still be as relevant in 2089 as it was in 1789.