Sunday, February 10, 2013

Can We All Live and Breath Today with a Living and Breathing Document?


          Writing in the form of a printed and bound book traditionally has an inherent authority. This authority is a result of an assumed verification and editing process that the author of the work had to go through, proving it was factual and relevant. However, a factual piece of work can transform into something in need of adjustment or replacement, once it has spent years on the shelf. When an old text such as the Constitution of the United States of America keeps serious authority in the domain of the law over the years, the relevance and influence of such a document must continue to be checked.
            How, in a world that changes so swiftly and completely, can the essential law of the land not also live, breathe, and evolve with us? The outstanding battle over how authority of the historical text should be exercised in the United States occurs prominently between those who adhere to originalism—a term which includes original intent and original meaning—and those who believe in a living constitution. A living constitution means a document which is dynamic and changeable, the reasoning being that the old context that the constitution was written in cannot apply to new policy created today and asserts that the framers wrote it using vague terminology in order to allow it to evolve with the new country. This struggle of doctrine exists within the institution of the Judiciary, where the Supreme Court interprets and manipulates the constitution. Their execution of case law keeps the constitution alive, but whether it is written in stone or changeable causes much debate.
            It is difficult for a democratic country with a rich and wrought history to honor its past and also make room for its future. Many countries reach democracy after years of struggle, and the resulting constitution is written and viewed as instructions for freedom and human rights for their citizens. A constitution can serve as a guideline for the enactment and continuation of many characteristics of a sovereign state, but perhaps a guideline for how a constitution can smoothly evolve into the future is also required. For example, the United Kingdom, although it follows an “unwritten constitution”, still adheres to the authority of precedent presented by their books of authority. These books are a way to honor the history of its courts which date back to the medieval period, whose original intent there is no way of verifying. The far younger country of Canada uses the living tree doctrine to interpret its constitution, an approach which requires reading the constitution broadly to allow for smooth change and progress.
            All this is not to say that old text and bound books should not have any clout, a compliance with a collection of such laws create an invaluable environment of order. When that order is interrupted, however, individuals begin to condemn or commend an aged and somewhat irrelevant document. Attention and energy is then wasted discussing intention and interpretation instead of moving forward to create a safe and just environment for us all today. 


  1. I completely agree about the often restrictive nature of viewing a Constitution as this unchanging document, which while sovereign, should be viewed in the context of our modern society. I never really thought of this in comparison to the authority of printed text and that this same idea can carry over, in that, in our contemporary context technology is a more relevant and adaptive medium. But a question that I struggle with is how can we establish a balance between adapting to the times but still maintain some form of authority? Can the constitution still be seen as having the same importance and influence in our society if we are adapting it continuously to meet the needs of our society? Just as, can the role of the author and literature still be sovereign and have a strong authority in an online medium?

  2. Great questions! I think in terms of the constitution, the process of amending is a relatively rarely used tool to keep the constitution relevant to society today. Supreme Court cases and decisions are another way the constitution stays in use. As for striking a balance between adaptability and authority, it is difficult to see a viable process or set of processes that can honor both. As for online authority for the written word, I think wikipedia (for example) is already beginning to be accepted by more professors and authorities in academy.

  3. Thanks, Kitania. This is an interesting discussion to bring into this context. Isn't one form of constitutional conservativism called "constructionism?" Anyway, I wonder whether in fact all of the ephemeral text we now have may actually allow GREATER authority to accrue to some texts--simply by comparison. Good stuff.