The Volokh Conspiracy - The Constitution as "a Living, Breathing Document":

I've got to defend Mike Huckabee from Hot Air on this one. Hot Air complains:

Video: Huckabee says the Constitution is a "living, breathing document" ...

I'm not going to rant about this. I will point out that Huckabee's position doesn't square up well with the Constitution's amendment process — a process laid out precisely because it ought to be difficult to change the Constitution, but change is sometimes necessary, and it's necessary because the Constitution isn't a living, breathing document. If it were, as the proponents of that understanding tend to believe, you can find meanings in the penumbras of what's actually written, meanings that might in fact be at odds with the plain understanding of the words themselves, without having to amend the document to find the new meaning therein. And I will also point out that the "living, breathing document" argument regarding the Constitution comes not from conservative or constructionist thinking, but from the left.

Make of all that what you will. Huckabee's "living, breathing" statement hits at just under 4 minutes in....

To Hot Air's credit, the post links to the video, and the video is pretty clear on what Huckabee was actually saying:

[Narrator:] [R]ecently, [Huckabee] came under fire for suggesting that the constitution should be amended so that it was quote, "In God's standards." I asked him about that comment earlier on AMERICAN MORNING....

MIKE HUCKABEE, ... PRESIDENTIAL CANDIDATE: The constitution, the genius and the brilliance of it was that it was intended to be amended. That's why African-Americans are considered people, because we amended the constitution. As we needed to, to make sure that we ended slavery. We amended the constitution so women could vote. There were a lot of amendments including the first one, which gives me the right to worship or you the right to speak out and have free speech. The second amendment, which gives us the right to bear arms.

Those are all changes to the original constitution. My point was that the constitution was a document. It's a living, breathing document written in order that it could be changed. The scriptures, however, were not written so that we would change them to adapt them to ever-changing cultural norms.

Huckabee was arguing that there's nothing inherently wrong with amending the constitution — precisely because (in Hot Air's words) "change is sometimes necessary." Huckabee's reference to "living, breathing document" simply means a document that must remain relevant to today's problems, and that thus should be changed when change is necessary.

It's true that the phrase is often used by those who urge some degree of judicial updating of the constitutional rules, and generally more such updating than conservatives such as Huckabee like. But whether Huckabee was deliberately trying to appropriate the other side's metaphor to illustrate the right way of making the Constitution "liv[e]" and "breath[e]," or used the words without thinking of the way the other side used them, he expressly made clear that he was talking about using "the Constitution's amendment process" rather than about the judicial reinterpretation that Hot Air is condemning.

As to the supposed tension with Huckabee's Web site, which says (in the part Hot Air quotes), "I firmly believe that the Constitution must be interpreted according to its original meaning, and flatly reject the notion of a 'living Constitution,'" I think the tension is rhetorical and not substantive. On the site, Huckabee is explicitly condemning the "living Constitution" approach in the sense of judicial reinterpretation of the Constitution: "The meaning of the Constitution cannot be changed by judicial fiat." In the interview, he's equally explicitly talking about changing the meaning of the Constitution through the expressly constitutionally provided amendment process.

I think Fred Thompson's response is also overstated, and reads more into the use of "living, breathing document" than the context warrants. But at least Thompson expressly acknowledges that "Governor Huckabee was talking about amending the Constitution," and faults him chiefly for "using code words that support judicial activism." [Conceivable conflict-of-something alert: I've contributed to the Thompson campaign, and I'm a member of Lawyers for Fred Thompson.]

Thanks to InstaPundit for the pointer.

	[Eugene Volokh, January 18, 2008 at 5:50pm] Trackbacks The Constitution as "a Living, Breathing Document": I've got to defend Mike Huckabee from Hot Air on this one. Hot Air complains: Video: Huckabee says the Constitution is a "living, breathing document" ... I'm not going to rant about this. I will point out that Huckabee's position doesn't square up well with the Constitution's amendment process — a process laid out precisely because it ought to be difficult to change the Constitution, but change is sometimes necessary, and it's necessary because the Constitution isn't a living, breathing document. If it were, as the proponents of that understanding tend to believe, you can find meanings in the penumbras of what's actually written, meanings that might in fact be at odds with the plain understanding of the words themselves, without having to amend the document to find the new meaning therein. And I will also point out that the "living, breathing document" argument regarding the Constitution comes not from conservative or constructionist thinking, but from the left. Make of all that what you will. Huckabee's "living, breathing" statement hits at just under 4 minutes in.... To Hot Air's credit, the post links to the video, and the video is pretty clear on what Huckabee was actually saying: [Narrator:] [R]ecently, [Huckabee] came under fire for suggesting that the constitution should be amended so that it was quote, "In God's standards." I asked him about that comment earlier on AMERICAN MORNING.... MIKE HUCKABEE, ... PRESIDENTIAL CANDIDATE: The constitution, the genius and the brilliance of it was that it was intended to be amended. That's why African-Americans are considered people, because we amended the constitution. As we needed to, to make sure that we ended slavery. We amended the constitution so women could vote. There were a lot of amendments including the first one, which gives me the right to worship or you the right to speak out and have free speech. The second amendment, which gives us the right to bear arms. Those are all changes to the original constitution. My point was that the constitution was a document. It's a living, breathing document written in order that it could be changed. The scriptures, however, were not written so that we would change them to adapt them to ever-changing cultural norms. Huckabee was arguing that there's nothing inherently wrong with amending the constitution — precisely because (in Hot Air's words) "change is sometimes necessary." Huckabee's reference to "living, breathing document" simply means a document that must remain relevant to today's problems, and that thus should be changed when change is necessary. It's true that the phrase is often used by those who urge some degree of judicial updating of the constitutional rules, and generally more such updating than conservatives such as Huckabee like. But whether Huckabee was deliberately trying to appropriate the other side's metaphor to illustrate the right way of making the Constitution "liv[e]" and "breath[e]," or used the words without thinking of the way the other side used them, he expressly made clear that he was talking about using "the Constitution's amendment process" rather than about the judicial reinterpretation that Hot Air is condemning. As to the supposed tension with Huckabee's Web site, which says (in the part Hot Air quotes), "I firmly believe that the Constitution must be interpreted according to its original meaning, and flatly reject the notion of a 'living Constitution,'" I think the tension is rhetorical and not substantive. On the site, Huckabee is explicitly condemning the "living Constitution" approach in the sense of judicial reinterpretation of the Constitution: "The meaning of the Constitution cannot be changed by judicial fiat." In the interview, he's equally explicitly talking about changing the meaning of the Constitution through the expressly constitutionally provided amendment process. I think Fred Thompson's response is also overstated, and reads more into the use of "living, breathing document" than the context warrants. But at least Thompson expressly acknowledges that "Governor Huckabee was talking about amending the Constitution," and faults him chiefly for "using code words that support judicial activism." [Conceivable conflict-of-something alert: I've contributed to the Thompson campaign, and I'm a member of Lawyers for Fred Thompson.] Thanks to InstaPundit for the pointer.