There is much debate, and has been for some time, over whether we have a "living" Constitution, one that adapts to changing circumstances and evolves over time. The metaphor arose and gained initial force during the Progressive Era and has been at the forefront of the debate on constitutional interpretation ever since. There is a more recent division, most prominently marked by Professor Owen Jones and Professors Brian Leiter and Michael Weisberg, over whether biology has a meaningful role to play in legal developments. Professor Jones has written many articles promoting the potential utility of behavioral and evolutionary science to law.' By contrast, Professors Leiter and Weisberg emphatically proclaim that "evolutionary biology offers nothing to law."
Despite the ongoing debate over "living" constitutionalism and the fervor of the new debate over the role of biology, no one has tried to connect the two. One might assume that the lack of attention is due to the metaphorical nature of the "living" Constitution. But scholars have studied evolutionary metaphors in other legal areas, such as common law and statutory law, though most such studies are escriptive-even "taxonomist"-rather than evaluative. To my knowledge, a biological evaluation of the metaphor of a "living" Constitution-a deep exploration of whether biology can tell us something about our conceptualization of constitutional change-has never been done.
That is unfortunate. The metaphor "living" Constitution appears regularly in important legal debates. It imports concepts from biology and, in the process, allows those biological concepts to shape the use and meaning of the metaphor in legal debate. Use of the metaphor implies that the Constitution has some of the traits of a living organism, in particular, that it grows and evolves. The metaphor is used intentionally to evoke biological truths as a way of informing legal understanding. It presents a normative vision of the Constitution that informs how it should be understood, interpreted, and applied.
We ought to look critically at this metaphor and the vision it entails. If the metaphor is inaccurate, we ought to ask why, so that we can better understand its true meaning. If there are gaps, we ought to explore whether we can fill those gaps in a way that will provide a richer conceptualization of the Constitution and its meaning. That is my task here: to explore the metaphor of a "living" Constitution from a biological perspective and to evaluate whether the metaphor employs those biological implications correctly. I examine where the metaphor loses significance, how far the metaphor might extend, and what this all tells us about the way we envision, conceptualize, and understand our Constitution.
In the process, I hope to shift both debates alluded to above. A more detailed understanding of biology may allow us to better appreciate the nuances of the metaphor of a "living" Constitution. Further, a fuller appreciation of the role biological metaphor can play in constitutional doctrine stakes a middle path in the current debate about what biology can offer to law.
A Darwinist View of the Living Constitution,
61 Vanderbilt Law Review
Available at: https://scholarship.law.vanderbilt.edu/vlr/vol61/iss5/1