Living Constitution

Progressives view the US Constitution not as a document that protects American liberty and freedom, but a roadblock that impedes their ability to implement their progressive agenda. Progressives bad-mouth the Constitution, dubbing it outdated, as an ancient document formulated long ago that has failed to keep pace with the fast-moving changes of the modern world.1

Progressives want to replace the Constitution with a “living constitution,” to modernize it by making it “more progressive.” They believe the Bill of Rights (the first ten amendments to the Constitution) should be updated to include “positive rights” fashioned after President Franklin Roosevelt’s “Second Bill of Rights.” This includes:

  • The right to a useful and remunerative job.
  • The right to earn enough to provide adequate food and clothing and recreation.
  • The right of every family to a decent home.
  • The right to adequate medical care and the opportunity to achieve and enjoy good health.
  • The right to adequate protection from the economic fears of old age, sickness, accident, and employment.
  • The right to a good education.

Progressive want these “positive rights” and others to be guaranteed by the US government, and represent key elements of the progressive agenda.

To change the Constitution is not an easy process. Article Five of the Constitution describes what steps are necessary. First, both Houses of Congress must pass an amendment by a two-thirds vote. The amendment must then be ratified by three-fourths of the states. Alternatively, two-thirds of the state legislatures can call for a convention of states. Upon convening, passage of an amendment requires the support of three-fourths of the states.

Progressives realize making changes to the Constitution by amendment based on Article Five is an unlikely option. As explained in a news article, progressives concede they “can’t get democratically elected bodies to enact their agenda.”So, unable to make changes through the front door, progressives seek to use the back door – the courts. “We don’t have much choice other than to believe deeply in the courts,” a progressive disclosed. “Where else do we turn?”3

What progressives mean by “believe deeply in the courts” is to rely on activist judges to change the Constitution to make it more “modern” by expanding/curtailing the intent and/or definition of provisions in the law, bypassing the legislative process.

1) UFPJ Unity Statement, June 2003.
2) See progressive David A. Strauss, who said, “Technology has changed, the international situation has changed, the economy has changed, all in ways that no one could foreseen when the Constitution was drafted. And it is just not realistic to expect the cumbersome amendment process to keep up with these changes.”
3) “What Liberals Want,” Weekly Standard, April 18, 2005.

American Constitutional Society

The American Constitutional Society (ACS), a progressive organization, was established in 2001 to develop legal strategies to change the US Constitution via judicial reinterpretation. The ASC sponsors conferences, such as “The Constitution in 2020,” to bring together progressives for the purpose of defining a progressive constitutional agenda and determining how the judicial system can be used to advance progressive issues.

As described by ASC, “The Constitution in 2020” is a “powerful blueprint” on how progressives hope to implement “a more progressive vision of constitutional law in the years ahead.”