The Living Constitution Sounds Reasonable Until You Ask Who Gets to Update It

Nobody has ever stood up at a town hall and announced, "I believe in a dead Constitution." The phrase "living Constitution" is one of the great marketing victories of the last century, because it makes the other side sound like it wants to keep the document in a jar. Who could be against a living thing? Who wants a stiff, lifeless parchment? And so a whole theory of judging gets sold with the same trick used to sell breakfast cereal: pick a word with a happy sound and let the customer fill in the details.

So let me pull the box off the shelf and read the back. A living Constitution that changes with the times is a perfectly reasonable thing to want. I want it too, and so do you. The question that matters is the one almost nobody asks: who does the changing, by what process, and with whose consent? Once you ask that, the cheerful slogan starts to look like something else. Today I'm going to state the case for the living Constitution at its strongest, not at its silliest, and then show you why the answer has been sitting in Article V since 1787.

The best version of the other side

The best case for a living Constitution is not a cartoon, and the people who make it are not fools. Here it is in three claims.

One, society changes. The country that ratified the Constitution had thirteen states, no railroads, no electricity, no airplanes and no internet. A document written for farmers and merchants has to govern a continental economy and a nuclear arsenal. Rigid readings, the argument goes, would freeze the nation in 1789.

Two, the text is spare and often general. The Constitution speaks of "unreasonable" searches, "due process of law," "equal protection of the laws," "cruel and unusual punishments." Those are not self-defining. Somebody has to decide what they mean in a case. Chief Justice John Marshall said as much in McCulloch v. Maryland in 1819, reminding readers that "it is a constitution we are expounding," a document meant to endure for ages and adapt to the crises of human affairs. In Missouri v. Holland (1920), Justice Oliver Wendell Holmes wrote that a case must be considered in the light of our whole experience and not merely in that of what was said a hundred years ago. And in Trop v. Dulles (1958), Chief Justice Earl Warren spoke of the "evolving standards of decency that mark the progress of a maturing society" as the measure of the Eighth Amendment.

Three, amending is too hard to be the only route. Article V sets a very high bar. Since 1789 the country has ratified only 27 amendments, and the first ten were the Bill of Rights. If every change had to wait for an amendment, the argument goes, the law could not keep up with the world, and courts have to fill the gap.

Notice what is good about this case. It is right that society changes. It is right that many clauses are general. It is right that amendment is difficult. A conservative who waves all this away is not making an argument, he's making a face. The real disagreement starts at the next step: what follows from those truths?

What follows: the argument in numbered premises

Let me put my answer in the form of an argument, so you can see where each step comes from and where to push back.

1. A constitution is law, and law binds because someone with authority enacted it. The Constitution has authority because the people ratified it. The words they ratified are the thing that has force.
2. The people who ratified it also wrote down how it may change. Article V says how: two-thirds of both houses of Congress, or a convention called by two-thirds of the state legislatures, to propose, and three-fourths of the states to ratify. That is the people's own updating mechanism, put there by the framers on purpose.
3. A change that comes from judges is a change that did not go through the people's mechanism. Federal judges serve during good behavior, as Article III says, and cannot be voted out. They are chosen by one elected official and confirmed by a body of one hundred.
4. Therefore, when the meaning of the text shifts because judges decided society had changed, an unelected body has done the work the Constitution assigns to the people.
5. The cure for rigidity is a faster amendment process or more willingness to use it, not a transfer of the amending power to the bench.

The living-constitution view has a response to premise three: judges are not changing the text, only applying it to new facts. That is a fair reply, and honest originalists agree that applying a fixed principle to new facts is not rewriting. We covered that in Originalism Explained for People Who Skipped Law School, where a thermal camera falls under a 1791 amendment. The real fight is over cases where the judge does not apply the old principle to a new fact but replaces the old principle with a new one. That is where "living" becomes "legislating."

The record: what happens when judges update the text

You do not have to take my word for the danger, because the Supreme Court has shown us, repeatedly, what happens when judges read their own values into broad words.

Dred Scott v. Sandford (1857). Chief Justice Roger Taney held that Black Americans, free or enslaved, could not be citizens of the United States, and that Congress had no power to ban slavery in the territories. To get there on the second point, he used the Fifth Amendment's Due Process Clause to protect slaveholders' property, a reading that reached beyond the text to a substantive right the Court found there. It is one of the worst decisions in American history, and it did not come from a rigid reading. It came from judges reading the clause the way they wanted.

Lochner v. New York (1905). The Court struck down a New York law limiting the hours of bakers, holding that the 14th Amendment protected a "liberty of contract" that the law violated. Five justices read an economic theory into the Due Process Clause. Justice Holmes dissented with a famous line: the Fourteenth Amendment does not enact Mr. Herbert Spencer's Social Statics. His point was that the Constitution does not settle a question that the voters of New York were entitled to settle for themselves. Lochner is usually cited by the left as the cautionary tale about conservative judges. Fine. Accept it. The lesson is the same on both sides: a judge who finds a favorite policy in the Constitution is making law. The Court retreated from the Lochner approach in the late 1930s; West Coast Hotel v. Parrish in 1937 is the usual marker. (For the political drama of that year, see FDR Tried to Pack the Supreme Court in 1937 and His Own Party Said No.)

So if you think the living-constitution method means judges will always update the Constitution in your direction, remember that the method does not care. It is a tool that serves whoever holds it. That is why I distrust it no matter who is on the bench.

The proof the amendment route works

Now to the claim that Article V is too hard to use. The country's history says otherwise, in the very cases where the change was largest.

• The 13th Amendment (1865) abolished slavery.
• The 14th Amendment (1868) made everyone born or naturalized in the United States a citizen, which overturned the citizenship holding in Dred Scott, and guaranteed due process and equal protection.
• The 15th Amendment (1870) barred denying the vote because of race.
• The 19th Amendment (1920) gave women the vote nationwide.

Think about what that list means. Abolition, citizenship, equal protection, the vote regardless of race and women's suffrage, the biggest moral corrections in American law, all came through the people's own process. Nobody needed a court to find them in the shadows of the text. And in two cases, the amendment process was used to correct the Court itself: the 11th Amendment (1795) answered a Supreme Court decision, Chisholm v. Georgia, and the 16th (1913) answered the Court's decision striking down a federal income tax. The people used the tool and won. If you want the full account, including the one amendment that took more than 200 years to ratify, see Article V Explained, and the Amendment That Took More Than 200 Years.

Yes, amendment is hard. It should be. The same barrier that stops bad changes also stops good ones for a while, and that is the trade the Founders made. But a barrier that high is a reason to persuade your neighbors, not a reason to go around them.

Overruling a precedent is not the same as making up a new law

Here is where the other side lands a punch that I have to answer. "You say judges shouldn't update the Constitution. But conservatives cheered when the Court overruled precedents in Brown v. Board of Education and in Dobbs. Isn't that updating?" No, and the difference is the heart of the matter.

In Brown (1954), a unanimous Court held that racially segregated public schools violate the Equal Protection Clause of the 14th Amendment, overruling Plessy v. Ferguson (1896), which had approved "separate but equal." The argument for overruling Plessy was a legal argument, and it had been made before the Court did. In 1896 Justice John Marshall Harlan, dissenting alone, wrote that the Constitution is color-blind and neither knows nor tolerates classes among citizens. His argument came from the text and purpose of the 14th Amendment. Later, legal scholars, including Michael McConnell in a well-known 1995 article, argued that segregation can be shown to violate the original understanding of the amendment. Brown corrected an error. It did not invent a new right.

In Dobbs v. Jackson Women's Health Organization (2022), the Court overruled Roe v. Wade (1973) and Planned Parenthood v. Casey (1992). Justice Samuel Alito's opinion did not say that society had changed. It said the decisions were wrong from the start because the Constitution does not mention abortion and no right to it was rooted in the nation's history and tradition, and that the question should be returned to the people and their elected representatives. It also walked through the usual factors for overruling precedent: the nature of the error, the quality of the reasoning, the workability of the rule, the effect on other areas of law and reliance interests. You may agree or disagree with the conclusion, but the form of the argument matters: the Court said the earlier decision was an unauthorized act of judicial will, and the cure was to give the question back to the voters. Five justices joined the part overruling Roe.

That is the difference. A living-constitution judge says the text now means something new because times have changed. A judge correcting a precedent says the text always meant what it meant, and the earlier judges got it wrong. Reasonable people can fight about which is which in a given case. But the test, whether the judge claims authority from the text or from the times, is real, and it is how you tell the two apart. The Court's role in all this is the subject of Marbury v. Madison and the Power the Supreme Court Gave Itself in 1803, and a five-step check you can run yourself is in A Five-Question Constitutional Test You Can Run on Any Federal Law.

What it means for your family

Your family is better off with a Constitution that says what it says. Predictability matters in ordinary life. The small-business owner signing a lease, the couple buying a house, the parents deciding where to send their children to school, all depend on rules that do not change at the whim of whoever sits on the bench. When the law is whatever five justices think it should be, every case is a coin flip, and the people with the best lawyers win.

There is also a democratic point. If you believe your neighbors are wrong about something, the way to win is to persuade them, and the Constitution gives you the room to do it. A living-constitution ruling that settles a hot question for a whole nation takes the argument off the table, and a settled argument that the losing side never got to win is a grievance that keeps festering. The Founders understood that. Passing the question to the voters is not abandoning it. It is how a free people makes a decision it can live with.

The bottom line

• The living-constitution view is right that society changes and that many clauses are broad. It goes wrong when it hands the power to update the text to unelected judges instead of the people.
• Article V is the people's updating mechanism. It produced the 13th, 14th, 15th and 19th Amendments, and it corrected the Court itself in the 11th and 16th.
• Judges who read their own values into broad words have done real damage, in Dred Scott and in Lochner, and the method serves whoever holds it.
• Overruling a decision because it was legally wrong, as in Brown and Dobbs, is different from changing the text because times changed. Ask which authority the judge claims.
• When a judge or pundit says the Constitution must "evolve," ask who evolves it, by what process, and where the voters come in.