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54 Tex. L. Rev. 693 (1975-1976)
Notion of a Living Constitution

handle is hein.journals/tlr54 and id is 721 raw text is: Texas Law Review Volume 54, Number 4, May 1976 Observation The Notion of a Living Constitutiont William H. Rehnquist* At least one of the more than half-dozen persons nominated during the past decade to be an Associate Justice of the Supreme Court of the United States has been asked by the Senate Judiciary Committee at his confirmation hearings whether he believed in a living Constitu- tion.' It is not an easy question to answer; the phrase living Constitu- tion has about it a teasing imprecision that makes it a coat of many colors. One's first reaction tends to be along the lines of public relations or ideological sex appeal, I suppose. At first blush it seems certain that a living Constitution is better than what must be its counterpart, a dead Constitution. It would seem that only a necrophile could disagree. If we could get one of the major public opinion research firms in the country to sample public opinion concerning whether the United States Constitution should be living or dead, the overwhelming majority of the responses doubtless would favor a living Constitution. If the question is worth asking a Supreme Court nominee during his confirmation hearings, however, it surely deserves to be analyzed in more than just the public relations context. While it is undoubtedly true, as Mr. Justice Holmes said, that general propositions do not decide concrete cases,'2 general phrases such as this have a way of subtly coloring the way we think about concrete cases. t This observation is the revised text of the ninth annual Will E. Orgain Lecture, delivered at The University of Texas School of Law on March 12, 1976. * Associate Justice, United States Supreme Court. B.A. 1948, LL.B. 1952, Stan- ford University; M.A. 1950, Harvard University. 1. See Hearings on Nominations of William H. Rehnquist and Lewis F. Powell, Jr., Before the Senate Comm. on the Judiciary, 92d Cong., 1st Sess. 87 (1971). 2. Lochner v. New York, 198 U.S. 45, 76 (1905) (Holmes, J., dissenting). 693

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