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
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
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).


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