“Conservatives” and Republicans often rail against the “liberal” belief in a “living breathing” Constitution.
And rightly so.
A written constitution operates just like a contract. Its meaning remains static unless amended, and the understanding of those who entered into the contract at the time of its approval governs that meaning. It does not change over time. The people must make changes via the amendment process.
Contrast that with an unwritten or “uncodified” constitution. England does not have a written constitution. Its government operates based on custom, statute, usage and precedent. Who decides the meaning and proper operation of “constitutional” government? The judiciary, government committees and legal experts. This type of government offers a great deal of elasticity. When it faces a problem, it need not worry about violating a written constitution with static meaning. The Parliament can simply pass new statutes. Or judges can formulate a new legal maxim. The judiciary takes precedence in this kind of system, setting legal precedent and guiding the evolution of the government.Details