The Living Constitution vs. Original Public Meaning

In exchange for giving more power to the national government than it had previously, there are rules that everyone (national government, state governments, and individuals) has to play by -- and you don’t get to change the rules on a whim. (And yes, I mean you, Justice Holmes.) Otherwise, Art. I would have been considerably shorter, and we wouldn’t have that pesky Bill of Rights telling the national government: “Nope! You can’t create a national church. Nope! You can’t require licenses to print newspapers!”

Some of you probably had teachers that told you the “strict constructionists” on the Court were reactionary barriers to necessary reforms. Roosevelt called them "the horse-and-buggy court." The reactionary “horse-and-buggy court” ordered new trials holding that “a defendant should be afforded a fair opportunity to secure counsel of his own choice” because they were holding America back. But they were hardly the reactionaries that many liberals back then (and now) imagined. The Scottsboro Boys were nine black men and boys accused of raping two white women and sentenced to death, either without benefit of lawyers or appointed so close to the trial date as to be useless.

Some anarchists were convicted for flying a red flag as a sign of revolution in violation of California law. On appeal to the U.S. Supreme Court, they argued that states could not violate their freedom of speech by criminalizing the flying of a flag. Those reactionaries on the Court in Stromberg v. California (1931) agreed.

The “nine old men” (as some liberals called the Supreme Court in the mid-1930s) were committed to a contract between the generations, not a living, breathing, constantly mutating Constitution. They struck down many laws that showed that they were not simply changing the rules of the game to suit their personal preferences. By contrast, the “living Constitution” theory became a method for superimposing the personal policy preferences of a majority of the Supreme Court over what the Framers intended. Throughout the period since West Coast Hotel Co. v. Parrish (1937) upheld a state law that required employers to discriminate against women (a very popular liberal cause at the time), the “living Constitution” model has been the excuse for both ignoring original intent and skipping the more demanding task of amending the Constitution when needed.