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The metaphor "living Constitution" imports terms from biology into law and, in the process, relies on biology for its meaning. A proper understanding of biology is therefore central to understanding living constitutionalism. Yet despite its rampant use by both opponents and proponents of living constitutionalism, and despite the current fervent debate over whether biology can be useful to the law, no one has evaluated the metaphor from a biological perspective.
This Essay begins that inquiry in an interdisciplinary study of law, science, and philology. The Essay first evaluates the metaphor as it is currently used and concludes that, while the metaphor is biologically accurate in some ways, it contains inaccuracies and gaps that render the metaphor incomplete. A deeper exploration of the inaccuracies reveals that slight changes in focus can give rise to provocative insights: for example, the "living" Constitution "evolves" in ways that are more akin to artificial selection (and perhaps even Intelligent Design!) than Darwinian natural selection. Thoughtful attempts to fill the gaps in the metaphor lead to a richer framework for viewing and conceptualizing the document and its changes.
In the end, extending the metaphor, in a way consistent with its biological roots, shows just how well a cross-disciplinary study can enlighten and enrich our understanding of the Constitution, both for those who believe that it is "living" and for those who do not.
I. INTRODUCTION
There is much debate, and has been for some time, over whether we have a "living" Constitution, one that adapts to changing circumstances and evolves over time. The metaphor arose and gained initial force during the Progressive Era and has been at the forefront of the debate on constitutional interpretation ever since.
There is a more recent division, most prominently marked by Professor Owen Jones and Professors Brian Leiter and Michael Weisberg, over whether biology has a meaningful role to play in legal developments. Professor Jones has written many articles promoting the potential utility of behavioral and evolutionary science to law.1 By contrast, Professors Leiter and Weisberg emphatically proclaim that "evolutionary biology offers nothing to law."2
Despite the ongoing debate over "living" constitutionalism and the fervor of the new debate over the role of biology, no one has tried to connect the two. One might...