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THE NOTION OF A LIVING CONSTITUTION



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THE NOTION OF A LIVING CONSTITUTION WILLIAM H REHNQUIST 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 This observation is the revised text of the ninth annual Will E Orgain Lecture delivered at The University of Texas School of Law on March 12 1976 It is reprinted with permission from the Texas Law Review See William H Rehnquist The Notion of a Living Constitution 54 TEX L REV 693 1976 1 See Hearings on Nominations of William H Rehnquist and Lewis F Powell Jr Before the Senate Comm on the Judiciary 92d Cong 1st



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