"Reflexiones sobre la constitución viviente" (Living Constitution)

Abstract

In the doctrine of the "Living Constitution" ("Constitucion viviente"), originating in the United States and linked to "non-interpretivism", it is understood that the Constitutions is something ultimately emancipated from the written text. From this perspective, the Constitution is what both the people and the government recognize and respect as such. In this regard, when judges construe the Constitution, instead of looking for already made solutions to dissipate constitutional doubts they should consult the aspirations, beliefs and values of the present community, and only then proceed to prepare beneficial constitutional answers according to these elements.

For the legitimization of this stance, the «"generations" argument» is used. (Le., the generation having passed the Constitution has no rigl1t to impose on the next, the present one, its ways of understanding and enforcing the supreme law), as well as the «"present constituents" argument» (where the important thing is not being faithful to the historical constituent but to the people of our present days, who are those that ultimately possess the real constituent power).

Of course, the "Living Constitution" vision is criticized for the insecurity dose implied in any Constitution being able to say different things in different times. Moreover, it is not always easy to detect social consensus about what judgments and beliefs are now prevailing within the community today. In parallel, perhaps there is no real consensus but debatable positions, or a "bad consensus" (for instance, if the majority puts forward discriminatory or axiomatically negative solutions).

It would be worth as well asking whether judges, in interpreting and giving shape to the "Living Constitution", should merely act like a microphone conveying common social opinion or beliefs, if there is any consensus. Or if, in a more active role, they would have to retouch and polish up any such beliefs according to the constitutional values (like justice, equality, and so forth), and even reject any "bad consensus".

Any way, and despite the above-mentioned criticism, several courts, without telling anyone, apply many guidelines of the "Living Constitution" doctrine under the label of evolutionary and dynamic interpretations of the Chart and constitutional mutation, related to decidedly activist positions adopted by the constitutional magistracy. Ultimately, a detailed and critical analysis of this thesis is imperative: on the one hand is useful too as to make a constitution be come operative (particularly if it is old), give it a modern social legitimacy and, on the other hand, establish both its limits and tops in terms of axiomatic and juridical legitimatization.