The Founders on a Living Constitution
The Founders believed that the Constitution was a legally binding agreement between Americans and their government. What would the Founders think about a living Constitution? Here is what some of them had to say in their own words.
On every question of construction carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates and instead of trying what meaning may be squeezed out of the text or invented against it, conform to the probable one in which it was passed. —Thomas Jefferson
The first and governing maxim in the interpretation of a statute is to discover the meaning of those who made it. —James Wilson, in Of the Study of Law in the United States
The basis of our political systems is the right of the people to make and to alter their constitutions of government. But the Constitution, which at any time exists, ‘till changed by an explicit and authentic act of the whole people, is sacredly obligatory upon all. … If in the opinion of the people the distribution or modification of the constitutional powers be in any particular wrong, let it be corrected by an amendment in the way which the Constitution designates. But let there be no change by usurpation; for though this in one instance may be the instrument of good, it is the customary weapon by which free governments are destroyed. — George Washington
Can it be of less consequence that the meaning of a Constitution should be fixed and known, than a meaning of a law should be so? — James Madison
The important distinction so well understood in America, between a Constitution established by the people and unalterable by the government, and a law established by the government and alterable by the government, seems to have been little understood and less observed in any other country. — James Madison
Our peculiar security is in possession of a written Constitution. Let us not make it a blank paper by construction. … If it is, then we have no Constitution. — Thomas Jefferson
To take a single step beyond the text would be to take possession of a boundless field of power. — Thomas Jefferson
Contrast what the architects of our system of government had to say with the words of some politicos of more recent times.
Living political constitutions must be Darwinian in structure and in practice. Society is a living organism and must obey the laws of life, not of mechanics; it must develop. All that progressives ask or desire is permission—in an era when ‘development,’ ‘evolution,’ is the scientific word—to interpret the Constitution according to the Darwinian principle; all they ask is recognition of the fact that a nation is a living thing and not a machine. — Woodrow Wilson, The New Freedom, A Call For The Emancipation Of The Generous Energies Of A People
The United States Constitution has proved itself the most marvelously elastic compilation of rules of government ever written.†— Franklin Roosevelt, President
It is the genius of our Constitution that under its shelter of enduring institutions and rooted principles there is ample room for the rich fertility of American political invention. —Lyndon B. Johnson, President
The words of the Constitution … are so unrestricted by their intrinsic meaning or by their history or by tradition or by prior decisions that they leave the individual Justice free, if indeed they do not compel him, to gather meaning not from reading the Constitution but from reading life. —Felix Frankfurter, Supreme Court Justice
This understanding, underlying constitutional interpretation since the New Deal, reflects the Constitution’s demands for structural flexibility sufficient to adapt substantive laws and institutions to rapidly changing social, economic, and technological conditions. — Stephen Breyer, Supreme Court Justice, Federal Maritime Commission v. South Carolina State Ports AuthorityÂ
I cannot accept this invitation [to celebrate the bicentennial of the Constitution], for I do not believe that the meaning of the Constitution was forever ‘fixed’ at the Philadelphia Convention … To the contrary, the government they devised was defective from the start. —Thurgood Marshall, Supreme Court Justice
It can be lost, and it will be, if the time ever comes when these documents are regarded not as the supreme expression of our profound belief, but merely as curiosities in glass cases. —Harry Truman, President
If we’re picking people to draw out of their own conscience and experience a ‘new’ Constitution, we should not look principally for good lawyers. We should look to people who agree with us. When we are in that mode, you realize we have rendered the Constitution useless. —Antonin Gregory Scalia, Supreme Court Justice
Just talk to me as a father—not what the Constitution says. What do you feel? — Joe Biden, Vice President
 James D. Best is the author of Tempest at Dawn, a novel about the 1787 Constitutional Convention. Look for his forthcoming book, Principled Action, Lessons from the Origins of the American Republic.
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19 comments
“Some men look at constitutions with sanctimonious reverence, and deem them like the ark of the covenant, too sacred to be touched. They ascribe to the men of the preceding age a wisdom more than human, and suppose what they did to be beyond amendment… Each generation is as independent of the one preceding, as that was of all which had gone before. It has then, like them, a right to choose for itself the form of government it believes most promotive of its own happiness… It is now forty years since the constitution of Virginia was formed. The same tables inform us, that, within that period, two-thirds of the adults then living are now dead. Have then the remaining third, even if they had the wish, the right to hold in obedience to their will, and to laws heretofore made by them, the other two-thirds, who, with themselves, compose the present mass of adults? … That majority, then, has a right to depute representatives to a convention, and to make the constitution what they think will be the best for themselves.” ~ Thomas Jefferson
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Art Casper Reply:
October 1st, 2016 at 12:02 pm
Your Jefferson quote does not address the issue of whether or not the Constitution means what it says, rather than the “living document” alternative of pretending it means something else. You quote speaks to altering gov’t, which a distinctly different issue, even though it may include amending the Constitution.
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Austin Lake Reply:
March 9th, 2018 at 8:35 am
Well the quote does start with a direct reference to “constitutions”, and I believe Jefferson saw the constitution as the medium of the people’s will, so it would make sense that he’s talking about it.
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Tim Reply:
August 23rd, 2018 at 12:53 pm
Yup. Living document. Doesn’t make sense any other way. The world changes, we have to rely on ourselves and people alive to interpret things and do the best we can or we are going to be paying each other in schillings.
Chuck Akins Reply:
December 15th, 2018 at 1:55 pm
Yes, Jefferson writes here about relevant changes to Constitutions as warranted by current generations. However, there are timeless founding principles that should be intact and even re-established if necessary. Things like separation of power, government limitations, and amendments that help control individual power align with timeless truths about freedom from tyranny and oppression!
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It’s sad, isn’t it, that an Attorney General, and a candidate for the Senate, has stooped so low as to cherry pick quotes to back up his belief?
The reality is that it’s clear that the founders, and all serious legal scholars since, have seen the Constitution as a guiding document, not a prescient manifestation of rules. The quote included from Justice Breyer is a good one – the Constitution itself demands flexibility. It was written with that in mind.
Let’s suppose for a moment, though, that Mr. Bruning and Mr. Best are correct about the intent of the founders. Must we remind them that there is no one true way to understand any communication, including the text of the Constitution? Everything is interpreted. Some are are willing to admit there is more than one way to interpret the Constitution. Others, like fundamentalists of all stripes, believe “There can be only one meaning, the meaning I believe to be true”.
Just look at the false choice in the first paragraph – is the Constitution “a legally binding agreement between Americans and their government” or is it “a living Constitution”? What about a legally binding agreement that is flexible, or one that could be interpreted in different ways by honest and intelligent people? Is that an impossible other choice?
When fundamentalists denigrate other people’s opinions, simplifying them and labeling them such things as a belief in a “living Constitution,” and set up false choices to make their position appear to be the only possibly valid one, they make it clear they are only interested in one thing – convincing others that their opinion is right, not through logic, but through rhetorical tricks.
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I missed the logic of your comment. You say we cherry-picked our quotes, but offer none that contradicts the ones we used. Then you say even if our representations are true, it doesn’t matter, because “Everything is interpreted.” Some of your comment shows that you need to do additional study of the founding period. If your perspective is correct, then the constitution has no meaning. Could you show me a single quote where one of the Founders thought an appointed-for-life tribunal should tell us how we are to be governed.
Also you say, “What about a legally binding agreement that is flexible, or one that could be interpreted in different ways by honest and intelligent people? Is that an impossible other choice?”
The simple answer is yes–that is an impossible other choice.
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Gary McCain Reply:
March 18th, 2018 at 7:04 pm
Wow, you definitely cherry-picked these quotes. That is some serious dishonesty from this website. Here is a quote where Jefferson makes it completely clear that the Constitution was meant to be a living document…
“I am not an advocate for frequent changes in laws and constitutions, but laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths discovered and manners and opinions change, with the change of circumstances, institutions must advance also to keep pace with the times. We might as well require a man to wear still the coat which fitted him when a boy as civilized society to remain ever under the regimen of their barbarous ancestors.”
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Some would have individuals, a small number of them, decide what the constitution is. Isn’t it interesting that even in the quote listed above by a commentor, Mr. Jefferson refers to a process by which a majority of newly elected representatives could change the constitution. Since the founders included a process to amend and alter that which should be changed, then why not choose to use that process?
Why instead would we just decide that something should be changed because of our feelings on a matter, so we’ll let a small number of ideological individuals make that decision for the rest of us. They can simply make the constitution what they want it to be, but what about what the majority of Americans want the constitution to be?
Some would have all out anarchy, which is what we have if we decide that the constitution is elastic and flexible. The notion of a living constitution is simply ridiculous today and at the founding. Should we change rules to the game of football at halftime if we decide that the game being played is unfair for one team or the other? No, because there is a process to change rules by the vote of a majority during the offseason. Our feelings will often mislead which is why we need a set of rules as firm as a rock.
I would not want the constitution change in favor of things that I believe or in any way other than the correct process. Even when one agrees with changes made by one political leader or judge then one may not agree with changes made by another political leader or judge. Where’s the standard by which to deem a change good or not? Who should decide these important matters? This is exactly why we need firm rules that includes a process by which to change them.
Thank you for bringing such gracious clarity to this debate, Mr. Best.
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Linda Johnson Reply:
January 9th, 2017 at 5:23 pm
Liked your comments a lot. It’s sad the progressives totally have a different view of what our founders intended and it was not to have our Constitution a “living” document to be changed willy nilly when a new trend in the Social Experiment rears it’s ugly head? We can change it by Amendment process and I prefer the Amendment process done by the majority of the States as in a Convention of States..thank you
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For the sake of honesty, please consider adding the following to the list of quotes by the Founding Fathers:
Thomas Jefferson wrote, “I am not an advocate for frequent changes in laws and constitutions, but laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths discovered and manners and opinions change, with the change of circumstances, institutions must advance also to keep pace with the times. We might as well require a man to wear still the coat which fitted him when a boy as civilized society to remain ever under the regimen of their barbarous ancestors.”
To the more modern architects of the Constitution, the following quote:
“Oliver Wendell Holmes, Jr., wrote in 1914: ‘The provisions of the Constitution are not mathematical formulas….They are organic, living institutions.'”
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Linda Trimpey Reply:
February 22nd, 2017 at 5:30 am
I submit that Jefferson did not mean in this quote what Holmes wrote in 1914. Jefferson said nothing about a need to change constitutional principles in his quote but that “institutions (not principles) must advance also to keep pace with the times”. An example of this would be the advent of air travel since the writing of our Constitution so that Article 1, Section 8, if written today, would include “To provide and maintain an Air Force”.
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For the sake of honesty, there is a process, as Mr. Best has said, for altering the Constitution. The quotes listed above do nothing to alter that fact.
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Yes, let the U.S. Constitution be altered if need be, but only according to the process laid out within itself. That is the only honest method. I fear though that we are now escaped from our Constitution’s wisely set confines.
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[…] Washington said, “The basis of our political systems is the right of the people to make and to alter their […]
[…] Washington said, “The basis of our political systems is the right of the people to make and to alter their […]
The genius of the Constitution is that it allows for evolution. I find it quite remarkable that the US was able to transition from a mostly an agricultural economy to an industrial one without needing a new Constitution. This suggests to me that the Constitution is as much if not more a procedural law document as it is a substantive law document. New legal theories crafted by judges, e.g. proximate cause in tort theory (thank you Justice Cardozo) have been required to respond to the new social, economic and political realities brought by new technologies. I also believe, with the technology revolution we currently find ourselves in, with the rise of the internet and social media, new human interactions and relationships are forming for the very first time in human history. This requires application of the Constitution to new realities that were inconceivable at the time of our country’s founding. That said, the principles of liberty and equality, codified in the Constitution and its Amendments endure. Long live the First and Fourteenth Amendments
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I would posit that those who would espouse an arbitrary following of the the Constitution are ignorant of history or enemies of the people of America and have another agenda. The Founders were neither of the first two and their agenda is obvious.
Their intentions laid out in the Declaration of Independence and the policies of the Constitution are very clear. Only those who fit into the above categories have any trouble with that clarity.
Tyrants, big and small, and those in their thrall hate solid, enduring principles that get in their way. They wish to dominate others and force their will on them, consent be damned.
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Jefferson was definitely a fan of revolution.
One of the things that makes the Constitution so resilient is that the founders made it somewhat difficult to amend. They were protecting the country against “democratic” mobs.
Another thing that makes it ever useful is the fact that human nature doesn’t change. Technology changes and there are such things as business cycles and weather cycles and hemline cycles. But human nature is pretty steady. That is a good lens through which to view the Constitution.
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