Originalism and Living Constitutionalism

 

  LAW

Comparative Constitutional Law Constitutional Interpretation: Original Meaning v. Living Document

 

  Q1: E-TEXT Module ID 16: Constitutional Interpretation: Original Meaning v. Living Document

Subject Name: Law Paper Name: Comparative Constitutional Law Module ID: 16 Pre-requisites:  Basic knowledge of constitutional law, comparative law. Objectives: Interpreting constitutions require distinct approaches and methods from interpreting statutes. This module explores two main approaches to interpreting the constitution, originalism and living document using India and U.S.A as examples. Keywords: interpretation, comparative constitutional law, originalism, textualism,  purposive interpretation, living constitution.

 

  CONSTITUTIONAL INTERPRETATION : ORIGINAL MEANING V. LIVING DOCUMENT 1.  Introduction

Constitutional interpretation or constitutional adjudication is one of the foremost functions of constitutional courts in a democratic set up. It contemplates adjudication of a question of law upon the touchstone of a constitution principle. 1It is also the testing of one constitutional principle with another constitutional principle 2  orthe interpretation of a constitutional provision by which the scope and expanse of a  provision is increased. 3In each of these adjudications there is one common factor that has to keep in mind, being that the constitution of a nation is the supreme law and that any interpretation that would run counter to the constitution or to a constitutional  principle has to be avoided. 2.  Methods of constitutional interpretation

There are largely two schools of thought that would be encountered while undertaking constitutional interpretation. The first is commonly known as “Textualism” or “Originalism”, which is often confused with strict constructionism or literalism.4  In this method, courts will look to interpret a constitutional provision literally, i.e., by interpreting the meanings of the words used therein and without  placing excessive reliance on the intention of the framers of a constitution. Textualism contemplates that words have a limited range of meaning and no interpretation that goes beyond that range of words is permissible. 5  This method is also referred to as a model of “fidelity”. With very few exceptions, originalism is not considered a mainstream interpretive method in any long - standing constitutional democracy other than the United States of America. 6 A fine example of originalism or textualism as laid down by the United States Supreme Court is: “[A]lthough the spirit of an instrument, especially of a Constitution, is to be respected not less than its letter, yet the spirit is to be collected chiefly from its words.

1Hamdard

Dawakhana (Wakf) Lal Kaun v. Union of India, India, AIR 1960 SC 554, where the constitutionality of the Drugs and Magic Remedies (Objectionable Advertisement) Act, 1954 was challenged before the Supreme Court of India; v. Katzenbach, Katzenbach U.S.the 301 (1966) wherein certain provisions of the Voting RightsSouth Act ofCarolina 1965 were challenged, 383 before United States Supreme Court. 2Indra Sawhney v. Union of India, India , 1992 Supp (3) SCC 217, this case debated the correctness of the interpretation given to Article 16(4) of the Indian Constitution; Bush v. Gore, Gore, 531 U.S. 98, which debated the correctness of the election of George W. Bush and Al Gore from the manner in which constitutional provisions were applied to the manner of counting. 3Vishaka v. State of Rajasthan, Rajasthan, AIR 1997 SC 3011, the Supreme Court of India, taking into consideration the principles laid down in the Convention for Elimination of Discrimination against Women lay down guidelines to prevent sexual harassment of women at workplaces. D. K. Basu v. State of West Bengal , (1997) 1 SCC 416, in this case the Supreme Court of India laid down guidelines to prevent custodial violence, torture and custodial deaths; Brown v. Board of Education,, 347 U.S. 483 (1954), wherein the equality clause and the due process clause of the Education United States Constitution were debated upon and its applicability was largely increased. 4Antonin Scalia, “ A Matter of Interpretation, Federal Federal Courts and the Law ”, ”, (Princeton, Princeton University Press, 1998) 23. 5

. 6ibid  Ran Hirschl,

“Comparative Matters, The Renaissance of Comparative Constitutional Law ” (Oxford, Oxford University Press, 2014), 147.

 

  … if, in any case, the plain meaning of a provision, not contr adicted by any other  provision in the same instrument, is to be disregarded, because we believe the  framers of that instrument could not intend what they say, it must be one in which the absurdity and injustice of applying the provision to the case would be so monstrous that all mankind would, without hesitation, unite in rejecting the application. ”7  The alternate school of thought in respect of constitutional interpretation is that of the “Living Constitution”. This school contemplates that constitutional law constitutional  law is not a static 8 document but is a dynamic document.  The “Living Constitution”, a body of law that (unlike normal statutes) grows and changes from age to age, in order to meet the needs of a changing society. 9The followers of this school do not necessarily bind themselves to the strict word of the contents of the Constitution but look to find greater meaning behind the mere words of the constitution. A lucid explanation of this principle is contained in the words of Justice Vivian Bose of the Indian Supreme Court, “ I find it impossible to read tthese hese portions of the Constitution without regard to the background out of which they arose. I cannot blot out their history and omit from consideration the brooding spirit of the times. They are not just dull, lifeless words static and hide-bound as in some mummified manuscript, but, living flames intended to givethe lifefuture to a great nation and the order its being, tongues of dynamic potent to mould as well as guide present. The Constitution must, infire, my judgment, be left elastic enough to meet from time to time the altering conditions of a changing world with its shifting emphasis and differing needs. I feel therefore that in each case  judges must look straight into the heart of things and regard the facts of each case concretely much as a jury would do; and yet, not quite as a jury, for we are considering here a matter of law and not just one of fact: Do these “laws” which have been called in question offend a still greater law before which even they must bow?”10 

One of the most well-known jurisdictions that has gladly embraced the living constitution principle is Canada, wherein the Canadian Supreme Court has spoken in the following words11  “The British North America Act planted in Canada a living tree capable of growth and expansion within its natural limits... The object of the Act was to grant a Constitution to Canada… ‘Like all written constitutions it has been subject to development through usage and convention. ”  3.  Need for constitutional interpretation

Constitutional law differs from ordinary law in that it is not a statute. It is the fountainhead of all statutes. This is a view that has been consistently taken by Courts

7Sturges

v. Crowninshield , 4 L Ed 529 (1819). of West Bengal v. Committee for Protection of Democratic Rights, Rights, (2010) 3 SCC 571. 9Antonin Scalia, “ A Matter of Interpretation, Federal Federal Courts and the Law ”, ”, (Princeton, Princeton University Press, 1998) 41. 8State

10

State of W.B. v. Anwar Ali Sarkar , 1952 SCR 284, in this case Justice Bose was dissenting from the majority that based their judgment on a textualist stand. 11Edwards Edwards v.  v. Attorney-General  Attorney-General for Canada Canada,, [1930] A.C. 124.

 

  in India and also the United States Supreme Court. 12  The Canadian Supreme Court has also lucidly set out the said principle in i n the following terms: “The task of expounding a constitution is crucially different from that of construing a

statute. A statute defines present rights and obligations. It is easily enacted and as easily repealed. A constitution, by contrast, is drafted with an eye to the future. Its  function is to provide a continuing framework for the legitimate exercise of governmental power and, when jjoined oined by a Bill or a Charter of Rights, for the unremitting protection of individual rights and liberties. Once enacted, its provisions cannot easily be repealed or amended. It must, therefore, be capable of growth and development over time to meet new social, political and historical realities often unimagined by its framers. The judiciary is the guardian of the constitution and must, in interpreting its provisions, bear these considerations in mind. Professor Paul  Freund expressed this idea aptly when he admonished the American courts “not to read the provisions of the Constitution like a last will and testament lest it become one.”13 

Professor Bruce Ackerman articulates that there is a fundamental difference between the decisions that were made by the people of America and the decisions made by those who govern the people of America. He argues that for any group of people looking to make a lawsuch that ais law. to govern theyhas must firstformed, gain thepursuant authoritytofrom the people to make Onceothers, this law been the conditions and requirements that professor Ackerman prescribes, there comes into existence a constitution. This process is termed by him as “higher lawmaking”. And once this higher lawmaking has been achieved for the first time, it gives those who have been given the power to rule under the process of higher lawmaking, the power of “normal lawmaking”.14  The importance of constitutional interpretation has been observed in the by the United States Supreme Court in the following words: “ A constitution, to contain an accurate detail of all the subdivisions of which its great  powers will admit, and of all the means by which they may be carried into execution, would partake of the prolixity of a legal code, and could scarcely be embraced by the human mind. It would probably never be understood by the public. Its nature, therefore, requires, that only its great outlines should be marked, its important objects designated, and the minor ingredients which compose those objects be deduced from the nature of the objects themselves.”15 

This statement is however made in the context of the American Constitution which is only 7 Articles and 27 Amendments long. Compare this to the Indian Constitution that is made up of 395 Articles, 12 Schedules and has been amended nearly 100 times. Therefore, while the United States Supreme Court, may seek to interpret the Constitution of the United States of America keeping in mind the dictum laid down

12U.P.

State Coop. Land Development Bank Ltd. v. Chandra Bhan Dubey , (1999) 1 SCC 741, 758; Cooper v. Aaron, Aaron, 358 U.S. 1 (1958). 13Hunter v. Southam Inc., Inc., [1984] 2 SCR 145. 14Bruce Ackerman, Higher Lawmaking, “We the People – Foundations”, (Harvard University Press, 1991). 15 McCulloch

v. Maryland , 17 US (4 Wheat) 316, 407 (1819), see also In re: Special Reference No. 1 of 2002, 2002, (2002) 8 SCC 237, 319;R.CPoudyal  319; R.CPoudyal v v.. Union of India, India, 1994 Supp (1) SCC 324.

 

   by it in 1819, the Indian Supreme Court, which is the final arbiter of constitutional questions in India, is required to interpret the Indian constitution keeping mind the historical, cultural and social background of India. It is for this reason that there is an underlying principle that judges should at certain levels act as social scientists. 16  One of the most fundamental needs for constitutional interpretation is, by its nature, constitutional rights are drafted in abstract terms17 and not absolute terms.18Therefore while the Indian Supreme Court, or the United States Supreme Court could be directly approached in the event that a fundamental right is breached, the question as to what is a fundamental right would have be gathered from the abstract language of Part III.19 Another important function of constitutional interpretation is to ensure that legislations that are passed by the legislature are not in contravention of the constitution of a nation. This is on the premise that a parliament is not supreme, but a constituted body.20  Therefore any law that is passed by the parliament which contravenes a constitutional right and/ or principle would be rendered as unconstitutional by a constitutional court. The question however remains as to what are the principles on which a constitutional court would interpret the constitution to a given situation. It is in this light that it is relevant to understand the difference  between textualism and originalism on the one hand and the living constitution  principle on the other hand. 4.  Originalism or a Living Constitution

Since the principle of textualism or the living constitution is a principle of interpretation, it is obviously not captured in any manner in any constitution, much less in the Indian Constitution. It is a context that one can only gather from the various judgments passed by the courts over time. This concept in Indian courts will  be explained in the context of cases dealing with fundamental fundamental rights.

16State

of Karnataka v. Ranganatha Reddy , (1977) 4 SCC 471. 21 of the Indian Constitution reads, “No person shall be deprived of his life or personal liberty except according to procedure established by law .” .” Similarly, the Fifth Amendment of the United States Constitution, which applies to the Federal Government reads, “ No person ... shall be deprived of life, liberty, or property, without due process of law ...” and the Fourteenth Amendment

17Article

State shall ... deprive anyasperson of is life, liberty, or which applies to State Government “ No  property, without due process proce ss of lawreads, ...”. The question always remains to what valid “ procedure established by law ” or what would be “ due process of law ” since that is an abstract principle. However, also see the First Amendment to the American Constitution and the explanation in relation to the same below. 18This can be contrasted with constitutional obligations which are clearly laid out, such the minimum age of a person who wants to become the President. Article 58 of the Constitution of India provides that only a person who is 35 years of age can become the President of India. Similarly Article 2, Section 1, Clause 5 of the Constitution of the United States of America provides that only a person who is 35 years of age can become the President of the United States of America. 19 Zee Telefilms v. Union of India, India, (2005) 4 SCC 649 decided by the Supreme Court of India. See also, Jackson also,  Jackson v. Metropolitan Edison Company , 419 U.S. 345 (1974) decided by the United States Supreme Court. Both cases reiterated the stand that a breach of a fundamental right could be agitated before it. But the issue involved in both cases was whether a breach of a fundamental right could be agitated against a body which though was providing certain state functions, was not a state itself. 20 Golak Nath v. State

of Punjab, Punjab, AIR 1967 SC 1643. Compare this with the position in England where Parliament is considered supreme.

 

  Textualism or Originalism as a method of interpretation has been favoured owing to its consistency and also its predictability. In particular, in the earlier stages of the Indian Supreme Court at the turn of independence, by favouring originalism, the Indian Supreme Court brought in a great deal of consistency in its legal  pronouncements.21However, with the progress of time and with the need to protect the rights of the citizens from various governmental infractions, the Indian Supreme Court began reading into the context of fundamental rights, rights that were not expressly contained in statutory law or in the constitution. 22  Similarly, in the United States of America, with the coming in of the “New Deal”, it was required that there was an adjusting of the older constitutional doctrines to explain and justify the changes in how the government functioned. The United States Supreme Court did so by reinterpreting and expanding federal and state power to regulate the economy and engage in redistributive programs, and by creating new  procedures to rationalize the expansion of administrative agencies. 23The very concept of a “living” Constitution arose in the early twentieth century due to innovations by Congress and by state and local governments in constructing early versions of the regulatory state.24In particular, at the forefront was the United States Supreme Court that was headed by Chief Justice Earl Warren. 25 

 

4.1.

Textualism and Living Constitutional principles in the interpretation of Fundamental Rights 4.1.1.  India One of the first instances where the Indian Supreme Court was required to address the issue of various provisions of the Constitution of India in light of a statute was the case of  A. K. Gopalan v. State of Madras,26 wherein Section 3(1) of the Preventive Detention Act, 1950 was challenged as being violative of Articles 13, 19, 21 and 22. A Constitution bench of five Judges of the Supreme Court went into an elaborate discussion about Part III and the inter-

  21 See

generally the judgments of the Indian Supreme Court in State of Madras v. V. G. Row, AIR

1952 SCv. 196, State of West AIR Bengal v. SC Anwar Sarkar,the AIR 1952 SCCourt 75 and Collector of Customs, Madras Nathella Chetty, 1962 316¸Ali 316¸ wherein  wherein Supreme continuously rejected any attempt to read into Article 21 the principles of “due process” as contained in the American Constitution..  Constitution 22Kharak Singh v. Singh v. State of U.P., AIR 1963 SC 1295 the Court in a unique ruling held that notwithstanding the fact the Indian Constitution did not have a clause similar to the Fifth Amendment as regards the ‘right to privacy of citizens’, an unauthorised intrusion into a person’s home and the disturbance caused to him thereby, is as it were, the violation of a common law right of a man; an ultimate essential of ordered liberty, if not of the very concept of civilisation. The Court during its ruling relied on the United States Supreme Court ruling of Wolf  v.  v. Colorado338 Colorado 338 US 25 (1948). 23Jack M. Balkin, Framework Originalism And The Living Constitution, 103 Nw. U. L. Rev. 549, 562 (2009). 24Howard Gillman, The Collapse of Constitutional Originalism and the Rise of the Notion of -Building,, 11 Stud. Am. Pol. Dev. 191 the“Living Constitution” in the Course of American State -Building (1997). 25

 See generally, Archibald Cox, “The Warren court; constitutional decision as an instrument of reform”, (Harvard; Harvard University Press, 1968).  26AIR 1950 SC 27, (“Gopalan’s case”).

 

  relationship between the Articles. The Supreme Court in a verdict of 4 to 1 27  dismissed the petition and upheld the validity of the state action that was sought to be impugned as unconstitutional. The counsel for the Petitioner advanced a strong argument to state that the action of the state was violative of the “due process” principle that was captured in the American Constitution28  and that Article 21 of the Constitution of India, even though did not use the word “ due process” but in fact used the phrase “procedure established by law”, 29in effect captured the essence of the same.The Supreme Court was sceptical on the application of a  principle that had been effectively rejected by the Constitution Drafting Committee. The Court had relied on a number of writings on American Constitution to emphasise that the "due process" clause was a disputed and vague point in American Jurisprudence as well.30  What though was canvassed in this case was what is known as “ procedural due process”, a principle that is linked to the school of originalism. The contention was that the “ procedure” that was established by law was violative of various constitutional rights. This should be contrasted with the argument of “substantive due process” wherein it is argued that fundamental rights, though drafted in with abstract terms, vest in people certain substantive rights. This aspect is dealt further below. This ruling in India was a water-gate on the subject and held the field of clos closee to two and a half decades. Even as late as the 60’s, the Indian Supreme Court was not ready to accept any interpretation that would allow the due process clause to be made part of the Indian Constitution. 31Almost any attempt to over-rule the above ruling was repelled with the greatest efficacy. In the ruling of Keshavananda Bharathi v. State of Kerala32the Court began reading into the Indian Constitution the essence of the "due process" clause. The Court observed that the power of judicial review was vested in the Indian Judiciary by the Indian Constitution and also by the fact that the rights in Article 19 contained the requirement that the restrictions that were imposed in the rights had to be reasonable. The Bench held that the concept mentioned here was not merely an American one but was also accepted in the ‘common law system’. The Court opined that the words ‘reason’ and ‘reasonable’ denoted the law of nature, which the American and English law referred to differently but connoted the same meaning. 33  Thus, simply put, the phrases “ procedure established by law” and "due process of law", according to the Court were nothing more than an interplay of words that have the ‘same soul  but different bodies’.  bodies’. 

27 Chief

Justice Kania, Justice’s Patanjali Shastri, Mahajan and Mukherjea were in the majority and Justice Fazal Ali delivered the minority ruling. 28Fifth Amendment and Fourteenth Amendment of the Constitution of the United States of America. 29 The same clause had been used in the Japanese Constitution in Article 31. 30Gopalan’s case, case, 38, citing Willis’ Constitutional Law and Cooley’s Constitutional Limitations, 662. 31

Chhotabhai Jethabhai Patel And Co vs Union of India, India, AIR 1962 1006. 1973 SC 1461. 33ibid, ibid, 1946  1946 para 1709. 32AIR

 

  The breakthrough in the tussle between the " due process" clause and the “ procedure established by law” clause finally culminated in the ruling of  Maneka Gandhi v.  Union of India.34Primarily the Court rejected the view taken in Gopalan's case. Further, the Court held that the procedure that was contemplated in Article 21 had to be a ‘ fair, just and an equitable ’ procedure and similarly the law had to be a reasonable law and not just any enacted  piece.35  To read "due process" into the Constitution the Court drew an ideology, that natural justice being a part of any law36 no legislation or action of the Government could bypass or sidestep the same. To this effect the Court relied on the ruling that was pronounced by Lord Denning, MR in Schmidt v. Secretary of State or Home Affairs .37 The Court thereafter observed that the rule that had been laid down in England had gained access not only to the Commonwealth but also in the International world. 38Thus by this method the Court had allowed the "due process" clause to be read into the Indian Constitution and had yet not tampered with the basic reading of the Constitution. Additionally in Sunil Batra  v.  Delhi Administration39the Court stated,  “True our Constitution has no ‘due process’ clause… but… after Cooper… and Maneka Gandhi… the consequence is the same.”  With the passing of the judgment in Maneka Gandhi, 40  in a number of subsequent cases the Supreme Court, in  M. H. Hoskot v. State of  Maharashtra41;  Hussainara Khatoon v.  Home Secretary, State of  Bihar 42; Jolly  Jolly George Verghese v.  Bank of Cochin43has also continued approving the due process clause into the Indian constitution. However, what the Indian Supreme Court had also done with these judgments is to veer from “ procedural due process” where only the correctness of the procedure was  being tested to “substantive due process” where substantive rights were being vested in the people. Thus from a purely originalist interpretation wherein the “due process” clause was completely rejected, to an amalgam of originalism, where the court accepted a procedural due process interpretation, the Supreme Court shifted towards a living constitutional interpretation by vesting rights that were hitherto unknown to the people by a mean of interpreting the constitution. 4.1.2.  United States of America Unlike in India, where there is an almost clear demarcation in the interpretative standard adopted by the Indian Supreme Court as regards the manner of its interpretation of fundamental rights, the United States Supreme 34AIR

1978 SC 597.

35ibid , 659.

ibid, 625, citing from Wiseman v. Borneman, 1971 AC 297.  2 Ch D 149. 38See Fontaine v. Chastarton Chastarton(1968) (1968) 112 Sol. Gen. 690, cf. American cf. American Journal of International International Law , Vol. 67, p. 479, per Maggary J. 39AIR 1978 SC 1675, 1690. 40Supra Supra at  at 34. 36

37(1969)

41

AIR 1978 SC 1548, the right against being handcuffed. 1979 SC 1369, right to compensation for violation of a fundamental right. 43AIR 1980 SC 470, right against being imprisoned for non – payment of a civil debt.

42AIR

 

  Court does not have such a clear distinctive period. While it is generally  perceived that the judgments passed by the United States Supreme Court after the “New Deal” have created more  more   rights through interpretative methods, that is not always a rule of thumb. Thus, the United States Supreme Court had upheld the segregation of whites from blacks in public places 44 or requiring separate schools for non  –   American children,45right of the police to, without a warrant, search automobiles for illegally transporting liquor, 46  uphold a zoning ordinance on the ground that the same was in exercise of the  police power of the state47  and also permitted evidence, which was improperly obtained to be used in a criminal trial. 48  However, with the “New Deal”, the United States of America, its Supreme Court has expanded the applicability of the Bill of Rights to state the inadmissibility of evidence that was obtained by an illegal search, 49  a congressional statute that sought to harm a politically unpopular group would not stand a test of scrutiny under the equality clause, 50 any discrimination of an unusual character 51  or criminalizing an inter  –   racial marriage would be violative of the due process clause, 52and declaring the criminalization of consensual homosexual conduct in the privacy of a person’s home as unconstitutional.53  Thus, even in the United States of America, which is largely as thedue home of originalist interpretation, there has been to a move f rom rconsidered om “ procedural process ”, an originalist interpretation at best, “substantive due process”, to a living constitutional interpretation. 4.2. 

Combined uses of originalism and living constitutional interpretations 4.2.1.  United States of America Another example as to where the United States Supreme Court has used both originalism and the living constitutional interpretations arises in its  judgments relating the First Amendment.54  Unlike the Indian Constitution that imposes reasonable restrictions on the freedom of speech and expression, the text of the First Amendment of the Constitution of the United States of America is absolute. Therefore, from an originalist perspective it ought to mean that there is no restriction whatsoever on any form of speech in the United States of America that is capable of being upheld. However, that is not the case.

44Plessy

v. Ferguson, Ferguson, 163 U.S. 537 (1896). v. Rice, Rice, 275 U.S. 78 (1927). 46Carroll v. United States, States, 267 U.S. 132 (1925). 47Village of Euclid v. Ambler Realty Co., Co. , 272 U.S. 365 (1926) 48Byars v. United States, States, 273 U.S. 28, 33 (1927) and Weeks v. United States, States, 232 U.S. 383 (1914) 49Mapp v. Ohio, Ohio, 367 U.S. 643 (1961) and Wolf v. Colorado, 338 U.S. 25 (1949). 50Department of Agriculture v. Moreno Moreno,, 413 U. S. 528 (1973). 51Romer v. Evans, Evans, 517 U.S. 620 (1996). 52Loving v. Virginia, Virginia, 388 U.S. 1 (1967). 53Lawrence v. Texas, Texas, 539 U.S. 558 (2003). 54The text of the First Amendment, which guarantees the freedom of speech and expression 45Lum

reads, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people  peaceably to assemble, and to petition the Government Government for a redress of grievances. grievances.” 

 

  The United States Supreme Court hasupheld the right of an individual to burn the flag of the United States of America, 55has protected inflammatory speech56  and alsoprotected commercial speech57  on the ground of the clear and unambiguous language of the First Amendment.By the same stroke, the United States Supreme Court has also at the same time not protected  pornography or obscene material58  and also imposed restrictions on school speech.59 In passing these judgements, the United States Supreme Court has not merely bound itself to the wordings of the First Amendment, which in its language is absolute, but sought to interpret the words of the First Amendment by looking to what its drafters would have intended and thus went beyond the very text of the constitution. 4.2.2.  India Similarly, the Supreme Court of India, while interpreting the freedom of speech and expression, as early as 1995 has recognised commercial speech as a facet of the freedom of speech and expression, 60  has protected citizen’s telephones from indiscriminate tapping 61  and also recognised the right of a transgender to seek an identity of choice and not be forced to choose either male or female.62  Each of these rulings are important in that, the Supreme Court of India into 19(1)(a) Indian substantive rightshas thatread were notArticle expressly set outofin the its text andConstitution, as such, has not bound itself to the originalist school of thought. 4.3. 

Critiques of the living constitution One of the fundamental objections to the concept of a living constitution is the fact that it is a form of constitutionalism that is done by the courts, which is a body that is neither elected by the people nor does it owe its allegiance to the people unlike a legislative body like the Parliament in India or Congress in the United States of America. Such being the case, originalists would contend that if there are fundamental changes that are required to be made to the constitution, such changes must be made in the form of amendments and not just through judicial decisions which do not have the backing of the  people. The former Chief Justice of the U.S. Supreme Court, William Rehnquist, identified two major problems problems with the “living constitution” approach: i) Such an approach “misconceives the nature of the Constitution, which was designed to enable the popularly elected branches of government, not the  judicial branch, to keep the country abreast of the times”; and ii) the goals advanced by living constitutionalists, however socially desirable, cannot be

55Texas

v. Johnson,491 Johnson,491 U.S. 397 (1989). v. Ohio, Ohio, 395 U.S. 444 (1969) and Cohen v. California, California, 403 U.S. 15 (1971). 57Central Hudson Gas & Electric Corp. v. Public Service Commission Commission,, 447 U.S. 557 (1980). 58Miller v. California, California, 413 U.S. 15 (1973). 59Morse v. Fredrick , 551 U.S. 393 (2006) 60Secy., Ministry of Information & Broadcasting, Govt. of India v. Cricket Assn. of Bengal , (1995) 2 56Brandenburg

SCC 161 and Tata Press Ltd. v. Mahanagar Mah anagar Telephone Nigam Ltd. Ltd.,, (1995) 5 SCC 139. Union for Civil Liberties (PUCL) v. Union of India I ndia,, (1997) 1 SCC 301. 62National Legal Services Authority v. Union of India, (2014) 5 SCC 438. 438.  

61People's

 

  countenanced because “advancing them through a freewheeling, non-elected  judiciary is quite unacceptable in a democratic society.”63  However, as has been pointed out by a number of judgments in various courts, constitutions, which are drafted years ago, could have not contemplated situations which are present and on - going. The drafters or framers of such a constitution would have taken into account instances that occurred in the backdrop of which the constitution was drafted. It would be almost impossible for the drafters to take into consideration what actions would entail in the times to come. 64  5. 

Summary and Conclusion 

The law at no point of time can be a static concept.It has to evolve from time to time to suit the needs of the people. It is no atypical fact that those who knock on the doors of the Court are the common men and women to whom the law at no point of time can or should be of a nature that hinders their path to justice. jus tice. The Supreme Court of India in the 65  A. D. M. Jabalpur v. Shivkant Shivkant Shukla re-iterated the view in the following language: “Our original Constitution was not an anchor but a rudder. The Constitution of one  period been the has Constitution of another period. another,has thenot Constitution become larger and larger. ”  As one period has succeeded

This has also been the view of the Supreme Court of the United States of America: “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.”66  In sum, living constitutionalism is primarily a theory about the processes of constitutional development produced by the interaction of the courts with the political  branches. It is a descriptive and normative theory of the processes of constitutional construction. It explains how change occurs and it gives an account of why that process is democratically legitimate, or at least more legitimate than the alternatives. To understand living constitutionalism, therefore, we need to understand constitutional construction. And we must begin not with courts which usually react and respondbut with constitutional constructions by the people’s elected representatives. 67 

63William Rehnquist,

The Notion of a Living Constitution, Constitution, 29 Harv. J. L. & Publ. Pol. 401, 407

(2006). would have never been anticipated by the drafters of the Indian Constitution that the Indira Gandhi government would have imposed an emergency in the manner that was done. Much less would have the framers of the United States Constitution contemplated that the President of the United States of America would authorise and send America troops to war without ascertaining the earlier consent of the Congress of the United States of America. 65AIR 1976 SC 1207.

64It

66Missouri v. Holland, 252 U.S. 416 (1920). 67Jack M. Balkin, Framework Originalism And

(2009).

The Living Constitution, 103 Nw. U. L. Rev. 549, 566