A Darwinist View of the Living Constitution

Abstract

The metaphor "living Constitution" imports terms from biology into law and, in the process, relies on biology for its meaning. A proper understanding of biology is therefore central to understanding living constitutionalism. Yet despite its rampant use by both opponents and proponents of living constitutionalism, and despite the current fervent debate over whether biology can be useful to the law, no one has evaluated the metaphor from a biological perspective. This Essay begins that inquiry in an interdisciplinary study of law, science, and philology. The Essay first evaluates the metaphor as it is currently used and concludes that while the metaphor is biologically accurate in some ways, it contains inaccuracies and gaps that render the metaphor incomplete. A deeper exploration of the inaccuracies reveals that slight changes in focus can give rise to provocative insights: for example, the "living" Constitution "evolves" in ways that are much akin to artificial selection (and perhaps even Intelligent Design!) than Darwinian natural selection. And thoughtful attempts to fill the gaps in the metaphor lead to a richer framework for viewing and conceptualizing the document and its changes.

In the end, extending the metaphor, in a way consistent with its biological roots, shows just how well a cross-disciplinary study can enlighten and enrich our understanding of the Constitution, both for those who believe that it is "living" and for those who do not.

Keywords: living constitution, darwin, evolution, legal evolution, metaphor, living constitutionalism, evolving standards of decency