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At least one of the more than half-dozen persons nominated during the past decade to be an Associate Justice of the Supreme Court of the United States has been asked by the Senate Judiciary Committee at his confirmation hearings whether he believed in a living Constitution.1 It is not an easy question to answer; the phrase "living Constitution" has about it a teasing imprecision that makes it a coat of many colors.
One's first reaction tends to be along the lines of public relations or ideological sex appeal, I suppose. At first blush it seems certain that a living Constitution is better than what must be its counterpart, a dead Constitution. It would seem that only a necrophile could disagree. If we could get one of the major public opinion research firms in the country to sample public opinion concerning whether the United States Constitution should be living or dead, the overwhelming majority of the responses doubtless would favor a living Constitution.
If the question is worth asking a Supreme Court nominee during his confirmation hearings, however, it surely deserves to be analyzed in more than just the public relations context. While it is undoubtedly true, as Mr. Justice Holmes said, that "general propositions do not decide concrete cases,"2 general phrases such as this have a way of subtly coloring the way we think about concrete cases.
Professor McBain of the Columbia University Law School published a book in 1927 entitled The Living Constitution.3 Professor Reich of the Yale Law School entitled his contribution to a book-length symposium on Mr. Justice Black The Living Constitution and the Court's Role.41 think I do no injustice to either of these scholars when I say that neither of their works attempts any comprehensive definition of the phrase "living Constitution." The phrase is really a shorthand expression that is susceptible of at least two quite different meanings.
The first meaning was expressed over a half-century ago by Mr. Justice Holmes in Missouri v. Holland5 with his customary felicity when he said:
. . . 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...