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How can the Constitution be referred to as a living document?

When our founding fathers created the Constitution they realized that any document meant to frame a government needed flexibility. They wanted the Constitution to be able to stand for generation after generation. In recognizing this they incorporated two important features:


ELASTIC CLAUSE

Article 1, Section 8, Clause 18

In this clause our founding fathers state that congress may pass all laws necessary and proper. This then allows for a loose interpretation of the constitution and allows constitutional flexibility. Thomas Jefferson was very much opposed to this clause and as you can well imagine Alexander Hamilton was it's author.

Some examples of the elastic clause in action include Hamilton's creation of the National Bank and Jefferson's purchase of the Louisiana Territory from Napoleon. The fact that Jefferson actually used the elastic clause is an irony not lost on either Hamilton or Jefferson.

Here is the original text:

To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.


THE AMENDMENT PROCESS

Article V

There are several ways to amend, change, the constitution.

STEP ONE - Proposal

  • Must pass 2/3 the House of Representatives and the Senate.

    or

  • Must pass 2/3 of states at a National Constitutional Convention if one is called.

STEP TWO - Ratification

  • 3/4 of the state legislatures must vote yes.

    or

  • 3/4 of state held conventions.

Here is the text from the Constitution:

The Congress, whenever two thirds of both houses shall deem it necessary, shall propose amendments to this Constitution, or, on the application of the Legislatures of two thirds of the several States, shall call a convention for proposing amendments, which, in either case, shall be valid to all intents and purposes, as part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by conventions in three fourths thereof, as the one or the other mode of ratification may be proposed by the Congress; provided that no amendment which may be made prior to the Year One thousand eight hundred and eight shall in any manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its consent, shall be deprived of it's equal suffrage in the Senate.


JUDICIAL REVIEW AND INTERPRETATION

The court, through the power of judicial review, lends a certain flexibility to the Constitution. When justices make a decision, take for example Roe v Wade, they are interpreting what the Constitution meant and said. In Roe, Justice Blackmun claimed that women had had a "right to privacy" and that as a result the state could not pass laws restricting women from having abortions. There is nowhere, however, in the Constitution where you will find this "right to privacy." Blackmun and others on the bench determined via interpretation that it was understood. They felt that the umbrella of Constitutional protections in the Bill of Rights created an unstated right to privacy. Other Supreme Courts have agreed. There are many other examples of interpretation as well. For example, in Gideon v Wainright the Court ruled that a lawyer had to be provided if the accused could not afford one. The Constitution merely states that citizens RIGHT to lawyer cannot be infringed. The Court interpreted this to mean that the state had to provide one if you can not afford one. There is nothing to say that later courts can not disagree and change the official interpretation of the Constitution but this too provides flexibility to meet the needs of a changing nation.

It should be noted that this is not even in the Constitution, it is custom or precedent. This speaks to the evolving and flexible nature of the document.


All of these portions of the constitution provide for flexibility and enable the constitution to truly be a "living" document.


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