Living Constitutionalism:

Definition of Living Constitutionalism
- Living constitutionalism is the theory that constitutional doctrine changes over time.
- It emphasizes that the interpretation of the Constitution is not fixed but evolves with societal changes.
Negative Definition
- Living constitutionalism can be defined in opposition to originalism.
- It implies that it does not adhere to originalist views which maintain a fixed interpretation of the Constitution.
- The perspectives presented in the earlier video emphasize originalism as a primary theory of constitutional interpretation.

Fixation Thesis
- The fixation thesis is considered false by living constitutionalists; they argue that the meaning of the Constitution can and should change over time.
Constraint Principle
- This principle is also deemed false; living constitutionalists argue that constitutional doctrine can change to a greater extent than what originalism permits.
Judicial Interpretation
- Living constitutionalists contend that it is not reasonably possible to apply the Constitution adequately without resorting to sources beyond originalism. They argue that judges should not limit themselves to originalist sources.
- A distinction is made: while one argument claims it's impossible to apply the Constitution without additional perspectives, the other asserts that judges shouldn't restrict themselves to those originalist perspectives.

Freedom of Express Association
- Defined as the right to form groups dedicated to promoting specific messages.
- This includes the ability to restrict membership to protect a group's beliefs and messages, drawing on societal contexts and judicial precedents.
- Examples:
  - The NAACP has the right to exclude racists from its membership.
  - LGBT organizations can restrict membership from militantly anti-LGBT individuals.
  - Religious institutions (e.g., synagogues) can restrict members who oppose their core beliefs (like explicit Christian evangelists).
Right to Privacy
- Defined as an individual's ability to control their own personal life, though the term remains complex and difficult to define specifically.

Moral Readings
- This theory posits that law should be interpreted in terms of the rights people ought to have and the powers government should possess.
- Associated with Ronald Dworkin and later developed in common law constitutionalism.
Common Law Constitutionalism
- Suggests that the Constitution can evolve through common law processes, which involve customary norms and judicial precedents that build over time.

Originalism is Impossible
- Advocates argue that originalism cannot be applied practically or coherently, necessitating reliance on normative judgments and other sources openly.
- Entrenchment of Unjust Portions
  - Originalism may entrench unjust aspects of the Constitution and make constitutional change difficult due to the arduous amendment process.
Adaptability to New Circumstances
- Living constitutionalism allows for quicker adaptation to societal changes, such as those arising from technological advancements like the Internet, without necessarily waiting for constitutional amendments.

Wisdom of the Framers
- Critics argue that the framers of the Constitution held particular wisdom that should not be dismissed, especially regarding government limits and representation.
- Certain aspects of framers' perspectives are viewed as insightful, despite their shortcomings on issues like slavery and racism.
Concerns About Tinkering
- The idea that constitutional interpretation can be easily changed can lead to abuses of power.
- The Constitution's purpose is to bind society to a set of principles; excessive alteration could undermine that binding nature.
Volatility of Politics
- Living constitutionalism may exacerbate political contention, particularly in supreme court appointments, where the stakes of judicial philosophy are seen as increasingly high.

All-or-Nothing Politics
- When rights are declared constitutional, they are not subject to compromise. For example, issues surrounding abortion and the contraceptive mandate demonstrate clashes between "freedom of conscience" and "control over one's body."
- If it is regarded as a right, normal political processes (like referenda) become ineffective.
Challenging Rights Adjustments
- The establishment of new rights can necessitate adjustments of existing rights, leading to uncomfortable conflicts regarding individuals' rights of conscience, such as doctors refusing to participate in operations like abortions.
Logic Limit Pushback
- Courts may feel compelled to extend rights or precedents to their logical extremes—leading to conflicts and further complications in rights discussions.

Political Processes Allowing for Revisitation
- Political processes allow for the revisiting of contentious issues, whereas court-decided rights can feel more absolute and difficult to contest.
Lobbyist Influence
- Lobbyists may find court cases a more cost-effective means than political lobbying to achieve favorable outcomes since judicial precedents can be difficult to overturn.

Contextual Shifts in Judicial Philosophy
- There may be instances where the balance in the court might shift ideologically, influencing interpretations of constitutionalism (live by the sword, die by the sword).
- The expectation is that justices who experience minority perspectives will carry that experience into their future decisions, thus promoting judicial restraint and consideration of broader contexts in their rulings.
Judicial Responsibility
- It is important for justices to understand the implications of their decisions, especially in regards to shifting contexts when faced with potential checks on rights—leading to a more extensive and nuanced deliberation around constitutional interpretations.