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Thursday, February 2, 2023

Sovereign immunity

From Wikipedia, the free encyclopedia

Sovereign immunity, or crown immunity, is a legal doctrine whereby a sovereign or state cannot commit a legal wrong and is immune from civil suit or criminal prosecution, strictly speaking in modern texts in its own courts. A similar, stronger rule as regards foreign courts is named state immunity.

History

Sovereign immunity is the original forebear of state immunity based on the classical concept of sovereignty in the sense that a sovereign could not be subjected without his or her approval to the jurisdiction of another. In constitutional monarchies, the sovereign is the historical origin of the authority which creates the courts. Thus the courts had no power to compel the sovereign to be bound by them as they were created by the sovereign for the protection of his or her subjects.^{[citation needed]} This rule was commonly expressed by the popular legal maxim rex non potest peccare, meaning "the king can do no wrong".

Forms

There are two forms of sovereign immunity:

immunity from suit (also known as immunity from jurisdiction or adjudication)
immunity from enforcement.

Immunity from suit means that neither a sovereign/head of state in person nor any in absentia or representative form (nor to a lesser extent the state) can be a defendant or subject of court proceedings, nor in most equivalent forums such as under arbitration awards and tribunal awards/damages.

Immunity from enforcement means that even if a person succeeds in any way against their sovereign or state, they and the judgment may find themselves without means of enforcement. Separation of powers or natural justice coupled with a political status other than a totalitarian state dictates there be broad exceptions to immunity such as statutes which expressly bind the state (a prime example being constitutional laws) and judicial review.

Waiver

Sovereign immunity of a state entity may be waived. A state entity may waive its immunity by:

prior written agreement
instituting proceedings without claiming immunity
submitting to jurisdiction as a defendant in a suit
intervening in or taking any steps in any suit (other than for the purpose of claiming immunity).

By country

Australia

There is no automatic Crown immunity in Australia, and the Australian Constitution does not establish a state of unfettered immunity of the Crown in respect of the states and the Commonwealth. The Constitution of Australia establishes matters on which the states and the Commonwealth legislate independently of each other; in practice this means the states legislate on some things and the Commonwealth legislates on others. In some circumstances, this can create ambiguity as to the applicability of legislation where there is no clearly established Crown immunity. The Australian Constitution does however, in s. 109, declare that, "When a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid." Based on this, depending on the context of application and whether a particular statute infringes on the executive powers of the state or the Commonwealth the Crown may or may not be immune from any particular statute.

Many Acts passed in Australia, both at the state and at the federal level, contain a section declaring whether the Act binds the Crown, and, if so, in what respect:

Commonwealth Acts may contain wording similar to: "This Act binds the Crown in each of its capacities", or specify a more restricted application.
State acts may contain wording similar to: "This Act binds the Crown in right of [the state] and, in so far as the legislative power of the Parliament of [the state] permits, the Crown in all its other capacities."

While there is no ambiguity about the first aspect of this declaration about binding the Crown with respect to the state in question, there have been several cases about the interpretation of the second aspect extending it to the Crown in its other capacities. Rulings by the High Court of Australia on specific matters of conflict between the application of states laws on Commonwealth agencies have provided the interpretation that the Crown in all of its other capacities includes the Commonwealth, therefore if a state Act contains this text then the Act may bind the Commonwealth, subject to the s. 109 test of inconsistency.

A landmark case which set a precedent for challenging broad Crown immunity and established tests for the applicability of state laws on the Commonwealth was Henderson v Defence Housing Authority in 1997. This case involved the arbitration of a dispute between Mr. Henderson and the Defence Housing Authority (DHA). Mr. Henderson owned a house which the DHA had leased to provide housing to members of the Australian Defence Force (ADF). Under the NSW Residential Tenancies Act 1997, Mr. Henderson sought orders from the Residential Tenancies Tribunal to enter the premises for the purposes of conducting inspections. In response, DHA claimed that as a Commonwealth agency the legislation of NSW did not apply to it and further sought writs of prohibition attempting to restrain Mr. Henderson from pursuing the matter further. Up until this point the Commonwealth and its agencies claimed an unfettered immunity from state legislation and had used s. 109 to justify this position, specifically that the NSW Act was in conflict with the Act which created the DHA and s. 109 of the constitution applied. Mr. Henderson took the case to the High Court and a panel of seven justices to arbitrate the matter. By a majority decision of six to one the court ruled that the DHA was bound by the NSW Act on the basis that the NSW Act did not limit, deny or restrict the activities of the DHA but sought to regulate them, an important distinction which was further explained in the rulings of several of the justices. It was ruled that the NSW Act was one of general application and therefore the Crown (in respect of the Commonwealth) could not be immune from it, citing other cases in which the same ruling had been made and that it was contrary to the rule of law. As a result of this case, the Commonwealth cannot claim a broad constitutional immunity from state legislation.

In practice, three tests have been developed to determine whether a state law applies to the Commonwealth and vice versa:

Does the law seek to merely regulate the activities of the Commonwealth as opposed to deny, restrict or limit them?
Is the state law constructed such that the act binds the Crown in respect of all of its capacities?
Is there no inconsistency between a state law and a Commonwealth law on the same matter?

If these three tests are satisfied, then the Act binds the Crown in respect of the Commonwealth. In Australia, there is no clear automatic Crown immunity or lack of it; as such there is a rebuttable presumption that the Crown is not bound by a statute, as noted in Bropho v State of Western Australia. The Crown's immunity may also apply to other parties in certain circumstances, as held in Australian Competition and Consumer Commission v Baxter Healthcare.

Belgium

Article 88 of the Constitution of Belgium states: "The King’s person is inviolable; his ministers are accountable."

Bhutan

According to the constitution of Bhutan, the monarch is not answerable in a court of law for his or her actions.

Canada

Canada inherited the common law version of Crown immunity from British law. However, over time the scope of Crown immunity has been steadily reduced by statute law. As of 1994, section 14 of the Alberta Interpretation Act stated, "No enactment is binding on Her Majesty or affects Her Majesty or Her Majesty's rights or prerogatives in any manner, unless the enactment expressly states that it binds Her Majesty." However, in more recent times "All Canadian provinces ... and the federal government (the Crown Liability Act) have now rectified this anomaly by passing legislation which leaves the 'Crown' liable in tort as a normal person would be. Thus, the tort liability of the government is a relatively new development in Canada, statute-based, and is not a fruit of common law."

Since 1918, it has been held that provincial legislatures cannot bind the federal Crown, as Fitzpatrick CJ noted in Gauthier v The King:

Provincial legislation cannot proprio vigore [i.e., of its own force] take away or abridge any privilege of the Crown in right of the Dominion.

It has also been a constitutional convention that the Crown in right of each province is immune from the jurisdiction of the courts in other provinces. However this is now in question.

Lieutenant Governors do not enjoy the same immunity as the Sovereign in matters not relating to the powers of the office. In 2013, the Supreme Court refused to hear the request of former Lieutenant Governor of Quebec Lise Thibault to have charges against her dropped. She was being prosecuted by the Attorney General of Quebec for misappropriation of public funds but invoked royal immunity on the basis that "the Queen can do no wrong". As per convention, the court did not disclose its reasons for not considering the matter. Thibault later petitioned the Court of Quebec for the same motives. Judge St-Cyr again rejected her demand, noting that constitutional law does not grant a lieutenant-governor the same benefits as the Queen and that in her case, royal immunity would only apply to actions involving official state functions, not personal ones. She was eventually found guilty and sentenced to 18 months in jail but was granted conditional release after serving six months.

China

China has consistently claimed that a basic principle of international law is for states and their property to have absolute sovereign immunity. China objects to restrictive sovereign immunity. It is held that a state can waive its immunity by voluntarily stating so, but that should a government intervene in a suit (e.g. to make protests), it should not be viewed as waiver of immunity. Chinese state-owned companies considered instrumental to the state have claimed sovereign immunity in lawsuits brought against them in foreign courts before. China's view is that sovereign immunity is a lawful right and interest that their enterprises are entitled to protect. Some examples of Chinese state-owned companies that have claimed sovereign immunity in foreign lawsuits are the Aviation Industry Corporation of China (AVIC) and China National Building Material.

Hong Kong

In 2011, the Hong Kong Court of Final Appeal ruled that absolute sovereign immunity applies in Hong Kong, as the Court found that Hong Kong, as a Special Administrative Region of China, could not have policies on state immunity that was inconsistent with China. The ruling was an outcome of the Democratic Republic of the Congo v FG Hemisphere Associates case in 2011.

Democratic Republic of the Congo v FG Hemisphere Associates (2011)

The Democratic Republic of the Congo and its state-owned electricity company Société nationale d'électricité (SNEL) defaulted on payments of a debt owed to an energy company, Energoinvest. During arbitration, Energoinvest was awarded damages against the Congolese government and SNEL. This was reassigned by Energoinvest to FG Hemisphere Associates LLC.

FG Hemisphere subsequently learned that the Congolese government entered into a separate joint venture with Chinese companies later, in which the Congolese government would be paid US$221 million in mining entry fees. As a result, FG Hemisphere applied to collect these fees in order to enforce the earlier arbitral award. The Congolese government asserted sovereign immunity in the legal proceedings. This was eventually brought to the Hong Kong Court of Final Appeal, when the Congolese government fought to overturn an earlier Court of Appeal decision which had ruled that:

as restrictive sovereign immunity applied in Hong Kong, the Congolese government had no immunity in commercial proceedings.
if absolute sovereign immunity had applied in Hong Kong, the Congolese government had waived their sovereign immunity rights in this case.

The Hong Kong Court of Final Appeal ruled 3:2 that the Congolese government had not waived its immunity in the Hong Kong courts, and that as a Special Administrative Region of China, Hong Kong could not have policies on state immunity that were inconsistent with China's. Therefore, the doctrine of sovereign immunity applied in Hong Kong should be absolute, and may be invoked when jurisdiction is sought in the foreign court in relation to an application to enforce a foreign judgment or arbitral award, or when execution is sought against assets in the foreign state. This means that sovereign states are absolutely immune to the jurisdiction in Hong Kong courts, including in commercial claims, unless the state waives its immunity. In order to waive immunity, there must be express, unequivocal submission to the jurisdiction of the Hong Kong courts "in the face of the court". Claimants should establish that the state party has waived their entitlement to immunity at the relevant stage, before proceedings can occur in court.

Denmark

Article 13 of the Constitution of Denmark states:

The King shall not be answerable for his actions; his person shall be sacrosanct. The Ministers shall be responsible for the conduct of the government; their responsibility shall be determined by Statute.

Accordingly, the monarch cannot be sued in his or her personal capacity. On the other hand, this immunity from lawsuits does not extend to the state as such and article 63 explicitly authorises the courts to judge the executive authority: "The courts of justice shall be empowered to decide any question relating to the scope of the executive's authority; though any person wishing to question such authority shall not, by taking the case to the courts of justice, avoid temporary compliance with orders given by the executive authority." Furthermore, no other member of the royal family can be prosecuted for any crime under Article 25 of the old absolutist constitution Lex Regia (The King's Law), currently still valid, which states: "They shall answer to no magistrate judges, but their first and last Judge shall be the King, or to whom He to that decrees."

Holy See

The Holy See, of which the current pope is head (often referred to by metonymy as the Vatican or Vatican City State, a distinct entity), claims sovereign immunity for the pope, supported by many international agreements.

Iceland

According to article 11 of the Constitution of Iceland the president can only be held accountable and be prosecuted with the consent of parliament.

India

According to Article 361 Constitution of India no legal action in the court of law can be taken against President of India and the governors of states of India as long as that person is holding either office. However, they can be impeached and then sued for their actions.

Ireland

In Byrne v. Ireland, the Irish Supreme Court declared that sovereign immunity had not survived the creation of the Irish Free State in 1922, and that accordingly the state could be sued for and held vicariously liable for the acts and omissions of its servants and agents.

Italy

According to the Constitution, the President of the Italian Republic is not accountable, and he is not responsible for any act of his office, unless he has committed high treason or attempted to subvert the Constitution, as stated in Article 90:

The President of the Republic is not responsible for the actions performed in the exercise of presidential duties, except in the case of high treason or violation of the Constitution. In such cases, the President may be impeached by Parliament in joint session, with an absolute majority of its members.

The Italian Penal Code makes it a criminal offence to insult the honor and prestige of the President (Art. 278), and until 2006 it was an offence to publicly give the President responsibility for actions of the Government (Art. 279 – abrogated).

Japan

Article 17 of the Constitution of Japan states: "Every person may sue for redress as provided by law from the State or a public entity, in case he has suffered damage through illegal act of any public official." The State Redress Act (国家賠償法, kokka baishōhō) was made according to this article. Officials who commit torts themselves are not liable, although the State or a public entity has the right to obtain reimbursement from the officers if there is intent or gross negligence on the part of them. And Administrative Litigation Act enables the people to file lawsuits involving the government of Japan.

On November 20, 1989, the Supreme Court ruled that it does not have judicial power over the Emperor because he is "the symbol of the State and of the unity of the people".

Malaysia

In Malaysia, an amendment to the constitution in 1993 made it possible to bring proceedings against the king or any ruler of a component state in the Special Court. Prior to 1993, rulers, in their personal capacity, were immune from any proceedings brought against them.

Netherlands

Since 1848, article 42 of the Dutch constitution states: "The king is immune from prosecution; the ministers are responsible".

Nigeria

Section 308 of the Nigerian constitution of 1999 provides immunity from court proceedings, i.e., proceedings that will compel their attendance in favour of elected executive officers, namely the President and his vice and the governors of the states and the deputies. This immunity extends to acts done in their official capacities so that they are not responsible for acts done on behalf of the state. However, this immunity does not extend to acts done in abuse of the powers of their office of which they are liable upon the expiration of their tenure. It is important to note that the judiciary has absolute immunity for actions decisions taken in their official capacity.

Norway

Article 5 of the Constitution of Norway states: "The King's person is sacred; he cannot be censured or accused. The responsibility rests with his Council." Accordingly, the monarch cannot be prosecuted or sued in his or her personal capacity, but this immunity does not extend to the state as such. Neither does immunity extend to the monarch in his capacity as an owner or stakeholder in real property, or as an employer, provided that the suit does not allege personal responsibility for the monarch.

Philippines

Article XVI, Section 3 of the 1987 Constitution currently in force states: "The State may not be sued without its consent."

Spain

The Spanish monarch is personally immune from prosecution for acts committed by government ministers in the King's name, according to Title II, Section 56, Subsection 3 of the Spanish Constitution of 1978.

The person of the King is inviolable and shall not be held accountable. His acts shall always be countersigned in the manner established in section 64. Without such countersignature they shall not be valid, except as provided under section 65(2).

At the time of the June 2014 abdication of King Juan Carlos the Spanish constitution did not state whether an abdicated monarch retains his legal immunity, but the government was planning to make changes to allow this. Legislation has been passed, although unlike his previous immunity, the new legislation does not completely shield the former sovereign. Juan Carlos must answer to the supreme court, in a similar type of protection afforded to many high-ranking civil servants and politicians in Spain. The legislation stipulates that all outstanding legal matters relating to the former king be suspended and passed "immediately" to the supreme court.

Sri Lanka

By the Constitution of Sri Lanka, the President of Sri Lanka has sovereign immunity (during the period of office).

Sweden

Chapter 5, Article 8 of the Swedish Constitution states: "The King or Queen who is Head of State cannot be prosecuted for his or her actions. Nor can a Regent be prosecuted for his or her actions as Head of State." This only concerns the King as a private person, since he does not appoint the government, nor do any public officials act in his name. It does not concern other members of the Royal Family, except in such cases as they are exercising the office of Regent when the King is unable to serve. It is a disputed matter among Swedish constitutional lawyers whether the article also implies that the King is immune against lawsuits in civil cases, which do not involve prosecution.

Singapore

In Singapore, state immunities are codified in the State Immunity Act of 1979, which closely resembles the United Kingdom's State Immunity Act 1978. Singapore's State Immunity Act has phrases identical to that of Section 9 of United Kingdom's State Immunity Act, and does not allow a foreign state, which has agreed to submit a dispute to arbitration, to claim jurisdictional immunity in judicial proceedings relating to the agreed arbitration, i.e. "where a State has agreed in writing to submit a dispute which has arisen, or may arise, to arbitration, the state is not immune as respects proceedings in the courts in Singapore which relate to the arbitration".

The President of Singapore does to a certain extent have sovereign immunity subjected to clause 22k(4).

United Kingdom

Immunity in proceedings

Historically, the general rule in the United Kingdom has been that the Crown has never been liable to be prosecuted or proceeded against in either criminal or civil cases. The only means by which civil proceedings could be brought were:

by way of petition of right, which was dependent on the grant of the royal fiat (i.e. permission);
by suits against the Attorney General for a declaration; or
by actions against ministers or government departments where an Act of Parliament had specifically provided that immunity be waived.

The position was drastically altered by the Crown Proceedings Act 1947 which made the Crown (when acting as the government) liable as of right in proceedings where it was previously only liable by virtue of a grant of a fiat. With limited exceptions, this had the effect of allowing proceedings for tort and contract to be brought against the Crown. Proceedings to bring writs of mandamus and prohibition were always available against ministers, because their actions derive from the royal prerogative.

Criminal proceedings are still prohibited from being brought against His Majesty's Government unless expressly permitted by the Crown Proceedings Act.

As the Crown Proceedings Act only affected the law in respect of acts carried on by or on behalf of the British government, the monarch remains personally immune from criminal and civil actions. However, civil proceedings can, in theory, still be brought using the two original mechanisms outlined above – by petition of right or by suit against the Attorney General for a declaration.

Other immunities

The monarch is immune from arrest in all cases; members of the royal household are immune from arrest in civil proceedings. No arrest can be made "in the monarch's presence", or within the "verges" of a royal palace. When a royal palace is used as a residence (regardless of whether the monarch is actually living there at the time), judicial processes cannot be executed within that palace.

The monarch's goods cannot be taken under a writ of execution, nor can distress be levied on land in their possession. Chattels owned by the Crown, but present on another's land, cannot be taken in execution or for distress. The Crown is not subject to foreclosure.

As of 2022, there were more than 160 laws granting express immunity to the monarch or their property in some respects. For instance, employees of the monarchy cannot pursue anti-discrimination complaints such as those under the Equality Act 2010. The monarchy is exempt from numerous other workers' rights, health and safety, or pensions laws. Government employees such as environmental inspectors are banned from entering the monarch's property without their permission. The monarch is also exempt from numerous taxes, although Queen Elizabeth II did pay some taxes voluntarily. Some of the odder exceptions for the monarch are included in laws against private persons setting off nuclear explosions, or regulating the sale of alcohol after midnight.

United States

In United States law, state, federal and tribal governments generally enjoy immunity from lawsuits. Local governments typically enjoy immunity from some forms of suit, particularly in tort.

In the US, sovereign immunity falls into two categories:

Absolute immunity: pursuant to which a government actor may not be sued for the allegedly wrongful act, even if that person acted maliciously or in bad faith; and
Qualified immunity: pursuant to which a government actor is shielded from liability only if specific conditions are met, as specified in statute or case law.

In some situations, sovereign immunity may have been waived by law.

Judicial immunity is a specific form of absolute immunity.

Federal sovereign immunity

The federal government of the United States has sovereign immunity and may not be sued anywhere in the United States unless it has waived its immunity or consented to suit. The United States has waived sovereign immunity to a limited extent, mainly through the Federal Tort Claims Act, which waives the immunity if a tortious act of a federal employee causes damage, and the Tucker Act, which waives the immunity over claims arising out of contracts to which the federal government is a party. The United States as a sovereign is immune from suit unless it unequivocally consents to being sued. The United States Supreme Court in Price v. United States observed: "It is an axiom of our jurisprudence. The government is not liable to suit unless it consents thereto, and its liability in suit cannot be extended beyond the plain language of the statute authorizing it." Price v. United States, 174 U.S. 373, 375-76 (1899).

State sovereign immunity

In Hans v. Louisiana (1890), the Supreme Court of the United States held that the Eleventh Amendment (1795) re-affirms that states possess sovereign immunity and are therefore generally immune from being sued in federal court without their consent. In later cases, the Supreme Court has strengthened state sovereign immunity considerably. In Blatchford v. Native Village of Noatak (1991), the court explained that

we have understood the Eleventh Amendment to stand not so much for what it says, but for the presupposition of our constitutional structure which it confirms: that the States entered the federal system with their sovereignty intact; that the judicial authority in Article III is limited by this sovereignty, and that a State will therefore not be subject to suit in federal court unless it has consented to suit, either expressly or in the "plan of the convention". [Citations omitted.]

In Alden v. Maine (1999), the Court explained that while it has

sometimes referred to the States' immunity from suit as "Eleventh Amendment immunity"[,] [that] phrase is [a] convenient shorthand but something of a misnomer, [because] the sovereign immunity of the States neither derives from, nor is limited by, the terms of the Eleventh Amendment. Rather, as the Constitution's structure, its history, and the authoritative interpretations by this Court make clear, the States' immunity from suit is a fundamental aspect of the sovereignty which the States enjoyed before the ratification of the Constitution, and which they retain today (either literally or by virtue of their admission into the Union upon an equal footing with the other States) except as altered by the plan of the Convention or certain constitutional Amendments.

Writing for the Court in Alden, Justice Anthony Kennedy argued that in view of this, and given the limited nature of congressional power delegated by the original unamended Constitution, the court could not "conclude that the specific Article I powers delegated to Congress necessarily include, by virtue of the Necessary and Proper Clause or otherwise, the incidental authority to subject the States to private suits as a means of achieving objectives otherwise within the scope of the enumerated powers".

However, a "consequence of [the] Court's recognition of preratification sovereignty as the source of immunity from suit is that only States and arms of the State possess immunity from suits authorized by federal law". Northern Insurance Company of New York v. Chatham County (2006, emphasis added). Thus, cities and municipalities lack sovereign immunity, Jinks v. Richland County (2003), and counties are not generally considered to have sovereign immunity, even when they "exercise a 'slice of state power'". Lake Country Estates, Inc. v. Tahoe Regional Planning Agency (1979). Nor are school districts, per Mt. Healthy City School District Board of Education v. Doyle (1977).

Additionally, Congress can abrogate state sovereign immunity when it acts pursuant to powers delegated to it by any amendments ratified after the Eleventh Amendment. The abrogation doctrine, established by the Supreme Court in Fitzpatrick v. Bitzer (1976), is most often implicated in cases that involve Section 5 of the Fourteenth Amendment, which explicitly allows Congress to enforce its guarantees on the states.

Living Constitution

From Wikipedia, the free encyclopedia

https://en.wikipedia.org/wiki/Living_Constitution

Judicial interpretation
Forms
Constitutional interpretation Statutory interpretation
General rules of interpretation
Plain meaning rule Mischief rule Golden rule
General theories of interpretation
Living Constitution / Living tree / Living instrument Originalism (original meaning) Original intent (legislative intent, legislative history) Strict constructionism Textualism Purposive approach Common good constitutionalism

United States Supreme Court

The Living Constitution, or judicial pragmatism, is the viewpoint that the United States Constitution holds a dynamic meaning that evolves and adapts to new circumstances even if the document is not formally amended. The Constitution is said to develop alongside society's needs and provide a more malleable tool for governments. The idea is associated with views that contemporary society should be considered in the constitutional interpretation of phrases. The Constitution is referred to as the living law of the land as it is transformed according to necessities of the time and the situation. Some supporters of the living method of interpretation, such as professors Michael Kammen and Bruce Ackerman, refer to themselves as organists.

The arguments for the Living Constitution vary but can generally be broken into two categories. First, the pragmatist view contends that interpreting the Constitution in accordance with its original meaning or intent is sometimes unacceptable as a policy matter and so an evolving interpretation is necessary. The second, relating to intent, contends that the constitutional framers specifically wrote the Constitution in broad and flexible terms to create such a dynamic, "living" document.

Opponents often argue that the Constitution should be changed by an amendment process because allowing judges to change the Constitution's meaning undermines democracy. Another argument against the Living Constitution is that legislative action, rather than judicial decisions, better represent the will of the people in the United States in a constitutional republic, since periodic elections allow individuals to vote on who will represent them in the United States Congress, and members of Congress should (in theory) be responsive to the views of their constituents. The primary alternative to a living constitution theory is "originalism." Opponents of the Living Constitution often regard it as a form of judicial activism.

History

During the Progressive Era, many initiatives were promoted and fought for but prevented from full fruition by legislative bodies or judicial proceedings. One case in particular, Pollock v. Farmers' Loan & Trust Co., enraged early progressive activists hoping to achieve an income tax. That led progressives to the belief that the Constitution was unamendable and ultimately for them to find a new way to achieve the desired level of progress. Other proposals were considered, such as making the amending formula easier.

Origins

The phrase originally derives from the title of a 1927 book of that name by Professor Howard Lee McBain, and early efforts at developing the concept in its modern form have been credited to figures like Oliver Wendell Holmes Jr., Louis D. Brandeis, and Woodrow Wilson. The earliest mentions of the Constitution as "living," particularly in the context of a new way of interpreting it, comes from Woodrow Wilson's book Constitutional Government in the United States in which he wrote:

Living political constitutions must be Darwinian in structure and in practice.

Wilson strengthened that view, at least publicly, while he campaigned for president in 1912:

Society is a living organism and must obey the laws of life, not of mechanics; it must develop. All that progressives ask or desire is permission - in an era when "development," "evolution," is the scientific word - to interpret the Constitution according to the Darwinian principle; all they ask is recognition of the fact that a nation is a living thing and not a machine.

Judicial pragmatism

Although the "Living Constitution" is itself a characterization, rather than a specific method of interpretation, the phrase is associated with various non-originalist theories of interpretation, most commonly judicial pragmatism. In the course of his judgment in Missouri v. Holland 252 U.S. 416 (1920), Holmes remarked on the Constitution's nature:

With regard to that we may add that when we are dealing with words that also are a constituent act, like the Constitution of the United States, we must realize that they have called into life a being the development of which could not have been foreseen completely by the most gifted of its begetters. It was enough for them to realize or to hope that they had created an organism; it has taken a century and has cost their successors much sweat and blood to prove that they created a nation. The case before us must be considered in the light of our whole experience and not merely in that of what was said a hundred years ago. The treaty in question does not contravene any prohibitory words to be found in the Constitution. The only question is whether [252 U.S. 416, 434] it is forbidden by some invisible radiation from the general terms of the Tenth Amendment. We must consider what this country has become in deciding what that amendment has reserved.

According to the pragmatist view, the Constitution should be seen as evolving over time as a matter of social necessity. Looking solely to original meaning, which would largely permit many practices that are now universally condemned, thus causes the rejection of pure originalism out of hand.

That general view has been expressed by Judge Richard Posner:

A constitution that did not invalidate so offensive, oppressive, probably undemocratic, and sectarian law [as the Connecticut law banning contraceptives] would stand revealed as containing major gaps. Maybe that is the nature of our, or perhaps any, written Constitution; but yet, perhaps the courts are authorized to plug at least the most glaring gaps. Does anyone really believe, in his heart of hearts, that the Constitution should be interpreted so literally as to authorize every conceivable law that would not violate a specific constitutional clause? This would mean that a state could require everyone to marry, or to have intercourse at least once a month, or it could take away every couple's second child and place it in a foster home.... We find it reassuring to think that the courts stand between us and legislative tyranny even if a particular form of tyranny was not foreseen and expressly forbidden by framers of the Constitution.

The pragmatist objection is central to the idea that the Constitution should be seen as a living document. Under that view, for example, constitutional requirements of "equal rights" should be read with regard to current standards of equality, not those of decades or centuries ago, an alternative that would be unacceptable.

Original intent

In addition to pragmatist arguments, most proponents of the living Constitution argue that the Constitution was deliberately written to be broad and flexible to accommodate social or technological change over time. Edmund Randolph, in his Draft Sketch of Constitution, wrote:

In the draught of a fundamental constitution, two things deserve attention:
1. To insert essential principles only; lest the operations of government should be clogged by rendering those provisions permanent and unalterable, which ought to be accommodated to times and events: and
2. To use simple and precise language, and general propositions, according to the example of the constitutions of the several states.

The doctrine's proponents assert that Randolph's injunction to use "simple and precise language, and general propositions," such that the Constitution could "be accommodated to times and events," is evidence of the "genius" of its framers.

James Madison, the principal author of the Constitution and often called the "Father of the Constitution," said this in argument for original intent and against changing the Constitution by evolving language:

I entirely concur in the propriety of resorting to the sense in which the Constitution was accepted and ratified by the nation. In that sense alone it is the legitimate Constitution. And if that is not the guide in expounding it, there may be no security for a consistent and stable, more than for a faithful exercise of its powers. If the meaning of the text be sought in the changeable meaning of the words composing it, it is evident that the shape and attributes of the Government must partake of the changes to which the words and phrases of all living languages are constantly subject. What a metamorphosis would be produced in the code of law if all its ancient phraseology were to be taken in its modern sense.

Some Living Constitutionists seek to reconcile themselves with the originalist view, which interprets the Constitution based on its original meaning.

Application

One application of the Living Constitution's framework is seen in the Supreme Court's reference to "evolving standards of decency" under the Eighth Amendment, as was seen in the 1958 Supreme Court case of Trop v. Dulles:

[T]he words of the [Eighth] Amendment are not precise, and that their scope is not static. The Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.

The Court referred in Trop only to the Eighth Amendment's prohibition on cruel and unusual punishment, but its underlying conception was that the Constitution is written in broad terms and that the Court's interpretation of those terms should reflect current societal conditions, which is the heart of the Living Constitution.

Equal Protection and Due Process Clauses

The Warren Court, led by Chief Justice Earl Warren, is recognized as having dramatically expanded civil liberties protected under the Constitution.

From its inception, one of the most controversial aspects of the living constitutional framework has been its association with broad interpretations of the Equal Protection Clause and the Due Process Clause of the Fifth and the Fourteenth Amendments.

Proponents of the Living Constitution suggest that a dynamic view of civil liberties is vital to the continuing effectiveness of the constitutional scheme. It is now seen as unacceptable to suggest that married women or descendants of slaves are not entitled to liberty or equal protection with regard to coverture laws, slavery laws, and their legacy, as they were not expressly seen as free from such by those who ratified the Constitution. Advocates of the Living Constitution believe that the framers never intended their 18th-century practices to be regarded as the permanent standard for those ideals.

Living Constitutionalists suggest that broad ideals such as "liberty" and "equal protection" were included in the Constitution precisely because they are timeless and for their inherently dynamic nature. Liberty in 1791 is argued to have never been thought to be the same as liberty in 1591 or in 1991, but it was rather seen as a principle transcending the recognized rights of the day and age. Giving them a fixed and static meaning in the name of "originalism" is thus said to violate the very theory that it purports to uphold.

Points of contention

As the subject of significant controversy, the idea of a Living Constitution is plagued by numerous conflicting contentions.

Disregard of constitutional language

The idea of a Living Constitution was often characterized by Justice Scalia and others as inherently disregarding constitutional language and as suggesting that one should not simply read and apply the constitutional text.

Jack Balkin argues that was not the intended meaning of the term, however, and suggests that the Constitution be read contemporaneously, rather than historically. Such an inquiry often consults the original meaning or intent, along with other interpretive devices. A proper application then involves some reconciliation between the various devices, not a simple disregard for one or another.

Judicial activism

Another common view of the Living Constitution is as synonymous with "judicial activism," a phrase that is generally used to accuse judges of resolving cases based on their own political convictions or preferences.

Comparisons

It may be noted that the Living Constitution does not itself represent a detailed philosophy and that distinguishing it from other theories can be difficult. Indeed, supporters often suggest that it is the true originalist philosophy, but originalists generally agree that phrases such as "just compensation" should be applied differently than 200 years ago. It has been suggested that the true difference between the judicial philosophies regards not meaning at all but rather the correct application of constitutional principles. A supporter of the Living Constitution would not necessarily state, for instance, that the meaning of "liberty" has changed since 1791, but it may be what it has always been, a general principle that recognizes individual freedom. The important change might be in what is recognized as liberty today but was not fully recognized two centuries ago. That view was enunciated for the Supreme Court by Justice George Sutherland in 1926:

[W]hile the meaning of constitutional guaranties never varies, the scope of their application must expand or contract to meet the new and different conditions which are constantly coming within the field of their operation. In a changing world it is impossible that it should be otherwise. But although a degree of elasticity is thus imparted, not to the meaning, but to the application of constitutional principles, statutes and ordinances, which, after giving due weight to the new conditions, are found clearly not to conform to the Constitution, of course, must fall.

To complete the example, the question of how to apply a term like "liberty" may not be a question of what it "means" but rather a question of which liberties are now entitled to constitutional protection. Supporters of a Living Constitution tend to advocate a broad application in accordance with current views, and originalists tend to seek an application consistent with views at the time of ratification. Critics of the Living Constitution assert that it is more open to judicial manipulation, but proponents argue that theoretical flexibility in either view provides adherents extensive leeway in what decision to reach in a particular case.

Debate

Chief Justice William Rehnquist criticized the notion of a Living Constitution.

By its nature, the "Living Constitution" is not held to be a specific theory of construction but a vision of a Constitution whose boundaries are dynamic and congruent with the needs of society as it changes. That vision has its critics; in the description of Chief Justice William Rehnquist, it "has about it a teasing imprecision that makes it a coat of many colors."

It is important to note that the term "Living Constitution" is sometimes used by critics as a pejorative, but some advocates of the general philosophy avoid the term. Opponents of the doctrine tend to use the term as an epithet synonymous with "judicial activism" (itself a hotly-debated phrase). However, just as some conservative theorists have embraced the term Constitution in Exile, which similarly gained popularity through use by liberal critics, textualism was a term that had pejorative connotations before its widespread acceptance as a badge of honor. Some liberal theorists have embraced the image of a living document as appealing.

Support

One argument in support of the concept of a "Living Constitution" is the concept that the Constitution itself is silent on the matter of constitutional interpretation. Proponents assert that the Constitution's framers, most of whom were trained lawyers and legal theorists, were certainly aware of the debates and would have known the confusion that not providing a clear interpretive method would cause. If the framers had meant for future generations to interpret the Constitution in a specific manner, they could have indicated such within the Constitution itself. The lack of guidance within the text of the Constitution suggests that there was no such consensus, or the framers never intended any fixed method of constitutional interpretation.

Relating to the pragmatic argument, it is further argued that if judges were denied the opportunity to reflect on changes to modern society in interpreting the scope of constitutional rights, the resulting Constitution either would not reflect the current mores and values or would require a constant amendment process to reflect the changing society.

Another defense of the Living Constitution is based in viewing the Constitution not merely as law but also as a source of foundational concepts for the governing of society. Of course, laws must be fixed and clear so that people can understand and abide by them on a daily basis. However, if the Constitution is more than a set of laws but also provides guiding concepts, which will in turn provide the foundations for laws, the costs and benefits of such an entirely-fixed meaning are very different. The reason is simple: if a society locks itself into a previous generation's interpretive ideas, it will wind up either constantly attempting to change the Constitution to reflect changes or simply scrapping the Constitution altogether. While the rights and powers provided in the Constitution remain, the scope that those rights and powers should account for society's present experiences. Oliver Wendell Holmes, Jr., wrote in 1914: "Provisions of the Constitution of the United States are not mathematical formulas having their essence in their form, but are organic living institutions transplanted from English soil. Their significance is not to be gathered simply from the words and a dictionary, but by considering their origin and the line of their growth."

A prominent endorsement of the Living Constitution concept was heard during the 2000 presidential campaign by the Democratic candidate, Al Gore.

Opposition

A common argument against the doctrine of a "Living Constitution" comes not from its moderate use but the concept being seen as promoting activism. The term presumes the premise of that what is written is insufficient in the light of what has happened since. The more moderate concept is generally not the target of those who are against the Living Constitution. The concept considered perverse by constructionalists is making the law say what is desired, rather than submitting to what it actually says.

Economist Thomas Sowell argues in his book Knowledge and Decisions that since the Constitution's original designers provided for the means of amending it, they never intended for their original words to change meaning. Sowell also points out cases in which arguments are made that the original framers never considered certain issues, although a clear record of them doing so exists.

Another argument against is similar to the argument for it: the fact that the Constitution itself is silent on the matter of constitutional interpretation. The Living Constitution is a doctrine that relies on the concept that the original framers could not come to a consensus about how to interpret or never intended any fixed method of interpretation. That would then allow future generations the freedom to reexamine for themselves how to interpret it. This view does not take into account why the original constitution does not allow for judicial interpretation in any form. The Supreme Court's power for constitutional review, and by extension its interpretation, was not formalized until Marbury v. Madison in 1803. Thus, the argument therefore relies on an argument that had no validity when the constitution was actually written.

The views of the constitutional law scholar Laurence Tribe are often described by conservative critics such as Robert Bork as being characteristic of the Living Constitution paradigm. Bork labeled Tribe's approach as "protean", since it was whatever Tribe needed it to be to reach a desired policy outcome. Tribe rejected both the term and the description. Such a construction appears to define the doctrine as being an ends dictate the means anti-law philosophy. Some liberal constitutional scholars have since implied a similar charge of intellectual dishonesty regarding originalists by noting that they virtually never reach outcomes with which they disagree. (Many academic political scientists believe that justices and appeals judges are willing to alter their outcomes to attain philosophical majorities on certain questions.)

In 1987, Supreme Court Justice Thurgood Marshall delivered a lecture, "The Constitution: A Living Document," in which he argued that the Constitution must be interpreted in light of the moral, political, and cultural climate of the age of interpretation. If Bork's formulation of "the living Constitution" is guiding, any constitutional interpretation other than originalism of one form or another implies the Living Constitution. If, however, Marshall's formulation is guiding, it is unclear whether methods derived from law and economics or the Moral Constitution might be implicated.

References to the Living Constitution are relatively rare among legal academics and judges, who generally prefer to use language that is specific and less rhetorical. It is also worth noting that there is disagreement among the opponents of the doctrine on whether the idea is the same as, implied by, or assumed by judicial activism, which has a similar ambiguity of meaning and is also used primarily as a derogatory epithet.

Justice Clarence Thomas has routinely castigated "living Constitution" doctrine. In one particularly strongly-worded attack, he noted:

Let me put it this way; there are really only two ways to interpret the Constitution – try to discern as best we can what the framers intended or make it up. No matter how ingenious, imaginative or artfully put, unless interpretive methodologies are tied to the original intent of the framers, they have no more basis in the Constitution than the latest football scores. To be sure, even the most conscientious effort to adhere to the original intent of the framers of our Constitution is flawed, as all methodologies and human institutions are; but at least originalism has the advantage of being legitimate and, I might add, impartial.

Justice Antonin Scalia expressed similar sentiments and commented:

[There's] the argument of flexibility and it goes something like this: The Constitution is over 200 years old and societies change. It has to change with society, like a living organism, or it will become brittle and break. But you would have to be an idiot to believe that; the Constitution is not a living organism; it is a legal document. It says something and doesn't say other things.... [Proponents of the living constitution want matters to be decided] not by the people, but by the justices of the Supreme Court .... They are not looking for legal flexibility, they are looking for rigidity, whether it's the right to abortion or the right to homosexual activity, they want that right to be embedded from coast to coast and to be unchangeable.

He also said:

If you think aficionados of a living Constitution want to bring you flexibility, think again.... You think the death penalty is a good idea? Under the formalist understanding of the Constitution, but not under the Living Constitution understanding, you can persuade your fellow citizens to adopt it. You want a right to abortion? Persuade your fellow citizens and enact it. That's flexibility.

Professor Michael Ramsey has criticized living constitutionalism on the grounds that there are very few limits on what it could achieve. Ramsey uses Kenneth Jost's argument in favor of the unconstitutionality of the electoral college to argue that a living constitutionalist could believe, "Even something expressly set forth in the Constitution can be unconstitutional if annoying, inconvenient or ill-advised." Likewise, Professors Nelson Lund and John McGinnis have argued that it would be difficult for a living constitutionalist such as Robert Post to object if the US Supreme Court had used its reverse incorporation principle together with the principles of Reynolds v. Sims to make the US cte apportioned exclusively based on population and still retained the trust of the American people after doing so.

Judicial activism

One accusation made against the living Constitution method states that judges that adhere to it are judicial activists and seek to legislate from the bench. That generally means that a judge winds up substituting his judgment on the validity, meaning, or scope of a law for that of the democratically-elected legislature.

Adherents of the Living Constitution are often accused of "reading rights" into the Constitution and of claiming that the Constitution implies rights that are not found in its text. For example, in Roe v. Wade, the US Supreme Court held that the Constitution has an implicit "right to privacy," which extends to a woman's right to decide to have an abortion. As such, the Court held that the government can regulate that right with a compelling interest and only if the regulation is as minimally intrusive as possible. Conservative critics have accused the Supreme Court of activism in inventing a constitutional right to abortion. That accusation is accurate in that abortion rights indeed had not been recognized but, the accusation has been applied selectively. For example, few conservatives levy the same claim against the Supreme Court for its decisions concerning sovereign immunity, a term that was also found to be implicit in the Eleventh Amendment by the Supreme Court.