At Balkinization, Stephen Griffin: The Problematic Living Constitution. From the introduction:
I’m picking up where I left off in these posts [ed.: see here and here] on the new originalism and living constitutionalism. The last post ended with the thought that there are important differences between theories of informal constitutional change and standard-form or conventional accounts of the living Constitution. One of the key differences is that theories of constitutional change are thoroughly historicist. This is not true of standard-form living constitutionalism. Proponents of the living Constitution have been perhaps overly sensitive to the charge that it is not firmly rooted in the eighteenth century or the early republic. They have often answered this charge by pointing to Chief Justice Marshall’s broad language in McCulloch. This leads to a back and forth, with originalists pointing out that Marshall’s language was directed at describing the broad powers Congress has under Article I rather than supporting the idea, common to living constitutionalists, that the interpretation of the Constitution’s rights provisions can legitimately change with the times. Moreover, it is unlikely that Marshall believed as a general matter that the meaning of the Constitution could change. Rather, in common with the framers at the Federal Convention, he thought that its general principles would be adequate to cope with changing conditions – and the meaning of those principles would not change.
And this interesting discussion:
When did ideas of the living Constitution become prominent?
One of the leading scholarly treatments is still Howard Gillman’s brilliant 1997 article “The Collapse of Constitutional Originalism and the Rise of the Notion of the ‘Living Constitution’ in the Course of American State-Building” in Studies in American Political Development. (I would also add John Compton’s more recent book The Evangelical Origins of the Living Constitution). I have not seen Gillman’s article cited very often by originalists. But it starts with the historical reality, presumably congenial to originalists, that the idea of the living Constitution was unknown to the framers and to most commentators in the nineteenth century. The leading interpretive theory was some version of what is now called originalism (although I think it is a mistake to simply assume that contemporary versions of originalism are identical with these earlier versions). On Gillman’s account, beginning in the late nineteenth century constitutional thinkers perceived a clash between the Constitution as interpreted by the Supreme Court and the developing administrative state (I’ll have to put to one side that the nature of the development of the administrative state is more contested now than when Gillman wrote). According to Gillman: “The strongest evidence that constitutional originalism posed problems for the emergent twentieth-century central administrative state was that none of the pre-New Deal justices who argued for the accommodation of this state attempted to justify their positions in the language of original intent; they chose to make their case by developing an innovative theory of the living Constitution.” Gillman has in mind leading figures like Justices Holmes, Brandeis, and Cardozo. Compton’s book, which I strongly recommend, adds a cast advocating the living Constitution that includes familiar figures like Pound, Frankfurter, Corwin, T.R. Powell, Hale, Commons, Cohen, and Dewey.
The whole post is very much worth reading.
Posted at 6:15 AM