DEBUNKING THE
NOTION OF A LIVING CONSTITUTION

By Yurii C. Ramos*

“The Athenian admits that a government thus limited by law may  not be ideally the best; if a man could be found without the limitations of human ignorance and self-interest, it would be wrong to subject him to law, for no law has higher authority than knowledge.  But the possibility of finding such a ruler is not great; he is to be  found, if at all, only in the proverbial age of Kronos, when men are said to have been ruled by semidivine beings higher than themselves. Hence we must exclude the sovereignty of men from our  city; the best we can do in the present age is to imitate the ordered  life of that legendary era and make law our sovereign.”
-Glenn R. Morrow, Plato’s Cretan City[**]

I. INTRODUCTION

      One question the Judicial and Bar Council (JBC) often asks those vying for the position of Supreme Court Associate Justice is whether the candidate, if appointed, would exercise judicial activism or judicial restraint.[1]  During the June 2019 JBC interviews, then Chief Justice Lucas Bersamin would ask candidates for their understanding of the terms judicial activism and judicial restraint and ask if they consider themselves a textualist. Associate Justice Noel Tijam, on the other hand, would ask the candidates for their understanding of the phrase “the living constitution.”

      In the United States, the Senate Judiciary Committee asks a similar line of questions during confirmation hearings of nominees to the U.S. Supreme Court. The Committee would ask nominees if they believe in the notion of a “living constitution”. The late U.S. Supreme Court Justice William Rehnquist explains why choosing the “living constitution” (over originalism) is prudent in this situation:

      At least one of the more than half-dozen persons nominated during the past decade to be an Associate Justice of the Supreme Court of the United States has been asked by the Senate Judiciary Committee at his confirmation hearings whether he believed in a living Constitution. It is not an easy question to answer; the phrase “living Constitution” has about it a teasing imprecision that makes it a coat of many colors.

      One’s first reaction tends to be along the lines of public relations or ideological sex appeal, I suppose. At first blush it seems certain that a living Constitution is better than what must be its counterpart, a dead Constitution. It would seem that only a necrophile could disagree. If we could get one of the major public opinion research firms in the country to sample public opinion concerning whether the United States Constitution should be living or dead, the overwhelming majority of the responses doubtless would favor a living Constitution.[2] (Emphasis supplied)

      It certainly seems that one who does not adhere to the notion of a living constitution would prefer a ‘dead’ constitution. Yet, as pointed out by Justice Rehnquist, this term deserves to be analyzed in more than just the public relations context, as a judge’s perception of the Constitution will necessarily affect his opinion on issues of constitutionality.

       The notion of a living constitution originated in the United States and has sparked debates between originalists and evolutionists. As defined by the late U.S. Supreme Court Justice Antonin Scalia, quoting Trop v. Dulles, the “living constitution” is the notion that a written constitution changes from decade to decade to comport with “the evolving standards of decency that mark the progress of a maturing society.”^[3] Thus, for the evolutionist, the constitution “grows and changes from age to age, in order to meet the needs of a changing society.”[4]

      Not much has been said about the notion of a living constitution in the context of Philippine democracy. However, several Supreme Court Justices have occasionally alluded to this notion.

      In a keynote address delivered during a Fellowship Luncheon of the Philippine Bar Association in 2014, the former Chief Justice Artemio V. Panganiban said that there are at least two ways of interpreting the Constitution: textualism/originalism and what is called “the living constitution”. He says:

      [T]here are at least two ways of interpreting or construing constitutions and laws. The textualists or originalists interpret according to the original intent of the framers, regardless of the dire consequences on current and future events. They rely on “dura lex sed lex.” Their self-imposed duty is “to apply laws faithfully and desist from engaging in socio-economic or political experimentations,” which they denounce as “judicial legislation.”

      On the other hand, the liberals or progressives believe in a living Constitution; one that grows with time, solves the vagaries of the present and anticipates the needs of the future. I belong to this latter group who believe that jurists are not mere social technicians and legal automatons. Rather, they are social engineers who courageously fix their gaze on the underlying principles and overarching aspirations of the Constitution to nurture a free and prosperous nation.[5] (Emphasis supplied)

      Unfortunately, this explanation oversimplifies the philosophy underlying the originalist and textualist schools of thought. It also suggests that originalists and textualists are “legal automatons” who ignore the actual consequences of giving the Constitution its straightforward meaning.

      This article will focus on the “Great Debate” in Constitutional Law between originalism/textualism[6] and the notion of a living constitution. This article will explain why the notion of a living constitution is in many respects problematic and untenable in a modern/representative democracy, and why it runs afoul basic legal principles such as the rule of majority, checks and balances, and the political question doctrine.

* Editor-in-Chief: UST Law Review ­- Vol. 65 (2021); J.D. Candidate: UST Faculty of Civil Law (2021); AB Philosophy, cum laude: University of San Agustin, Saint Thomas of Villanova Institute – San Agustin Center of Studies (2015).

[**] Glenn R. Morrow, Plato’s Cretan City: A Historical Interpretation of the LAWS 544-545 (Princeton University Press: Princeton, N.J., 1960).

[1] Lian Buan, “Recent JBC Interviews Had Less Tough Questions on SC Decisions.” Rappler, 2 Oct. 2018, www.rappler.com/newsbreak/in-depth/jbc-interviews-fewer-tough-questions-supreme-court.

[2] William H. Rehnquist, The Notion of a Living Constitution, 54 Texas L. Rev. 693 (1976), reprinted in 29 Harvard J.L. & Pub. Pol’y, 401, (2006).

[3] Rhodes v. Chapman, 452 U.S. 337, 346 (1981), quoting from Trop v. Dulles, 356 U.S. 86, 101 (1958)

[4] Antonin Scalia, “Common-Law Courts in a Civil-Law System: The Role of United States Federal Courts in Interpreting the Constitution and Laws” In A Matter of Interpretation edited by Amy Gutmann, 3-48, 38. Princeton: Princeton University Press, 2018. https://doi.org/10.1515/9781400882953-004. (last accessed: July 9, 2021).

[5] Artemio V. Panganiban, Safeguard Liberty: Conquer Poverty, Share Prosperity (Part Two – For the Legal Profession), 62 UST Law Review 173, 178-179 (2018).

[6] Originalism and textualism are not synonymous as explained in Chapter V of this article. However, they are sometimes used interchangeably, especially when contrasted against the notion of a living constitution.

Featured Image byMike Gonzalez (TheCoffee), CC BY-SA 3.0, via Wikimedia Commons