Those who reject originalism as a judicial philosophy generally say that the Constitution is a "living document" which changes in meaning as society changes. Further, they believe that the Supreme Court, a small unelected body with life-long terms, has the final say in what that dynamic meaning is.

One critique of a Living Constitution is that "allowing judges to determine an ever-changing meaning of the constitution undermines democracy." Judges are much less accountable to the people than congress or the president. Thus, many argue that allowing judges discretion to interpret the Constitution in new and creative ways gives them power to thwart the will of the more democratic governmental bodies and undermine the power of the public to change policy.

Many advocates of a Living Constitution see democracy and the power of people to change government as a great good. For example, President Barack Obama supports a living constitution:

I have to side with Justice Breyer's view of the Constitution -- that it is not a static but rather a living document, and must be read in the context of an ever-changing world.

But President Obama also very much believes in the will of the people and democracy, saying things like:

Nothing can stand in the way of the power of millions of voices calling for change.

President Obama is just one example; many politicians and political/legal thinkers share this belief. What arguments or justifications do people with a strong belief in the democratic process make to reconcile that belief with their support for a "living" or loose interpretation of the Constitution by judges?

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    if you can properly cite the quote, that may help narrow this question but it's mostly a broad opinion question. Not ideal for this site. But to give you some sort of answer: my response would be that I don't see the connection at all. – user1530 May 13 '16 at 4:03
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    Even as an avid originalist, I know this question can't be answered in the character limit provided by SE. There are likely mounds of text books dripping in legalese that would fail to answer this question for all parties involved. – Drunk Cynic May 13 '16 at 5:10
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    @blip Judges are unelected and serve for life. If they are able to make decisions that do not depend on the will of the people or on the text of existing law, then in effect they're able to make their own law with no accountability. That is my premise, and I've not heard counterarguments other than the semantic one that they're not actually "making" but "interpreting" law (which assumes what they're trying to prove) so I'm looking for a more thorough argument. Does that help? (Perhaps we should bring it to chat if it gets more voluminous.) – Mr. Bultitude May 13 '16 at 15:50
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    To summarize (and just my opinion): While it could be argued the SC undermines democracy, it needs to be put into the context of the US model of democracy...which is a representative democracy. This was explicitly designed per said constitution. The constitution never wanted a pure 'majority rules' democracy in the first place and it was purposefully designed to indeed balance (some would say undermine) majority rule democracy – user1530 May 13 '16 at 20:01
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    By design, the Supreme Court, Congress, and Executive branch undermine democracy, because these United States were established by the Constitution as a Representative Republic, where the whims of the majority are thwarted by an absolute application of the Rule of Law. Has it been perfectly executed? No. The difference between Originalist and Living Constitution views is best defined by how the Justices interpret the wording of the Constitution in making their decisions. They are elected for life to protect unpopular, but lawfully accurate, decisions. – Drunk Cynic May 14 '16 at 0:04

No major political group in America, whether right wing, left wing, liberal, conservative, or whatever you want to call it, believes in completely unrestrained democracy. Certain topics are believed to be off limits regardless of what the voters may say. Nearly all Americans would say that if 51% of the voters decided that we should execute everyone who red hair, we still shouldn't do it. One reason they would give is that we have a Constitution that prevents the deprivation of life liberty or property without due process of law.

So proponents of a "living Constitution" and proponents of a reliable Constitution agree that there are certain issues, certain freedoms, certain rights, that are too important to be left to voters. The dispute is over how we should recognize issues that are too important for democracy and how those issues should be decided.

With a "living Constitution", 9 people appointed for life by a democratically elected president and confirmed by a democratically elected Senate decide based on their own personal preferences at the time a ruling is made.

With a reliable constitution, decisions are to be made by the amendment process which is also democratic but requires super-majorities which can be difficult to achieve. The 9 judges are constrained by the text of the Constitution, and when that is unclear they are constrained by precedent and existing custom.

Both views support democracy, and both limit democracy, so although their opponents may say that 9 judges making unrestrained decisions are a danger to democracy the proponents of a Living Constitution feel no greater burden for defending how their ideas are compatible with democracy because certain issues need to be protected from democracy.

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    A personal observation to add: whenever I talk with non-scholar non-lawyer non-professional liberals, people who support a "Living Constitution", I generally find that they don't actually try to defend the concept, they defend the individual decisions. It seems they are primarily concerned with results rather than process. So long as their side wins the decision why worry about the details of why it happened? – Readin May 24 '16 at 4:55

Well, for starters, we're not a democracy. We're a Constitutional Republic. In fact, you won't find the word Democracy in any of our founding documents and if the founders do mention it, it would be to decry it. Like the old adage goes, Democracy is 3 wolves and a sheep trying to decide what's for dinner.

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