The Living Constitution

An appreciation of the organic path of historical development is absolutely essential to an adequate understanding of the American Constitution as it moves forward into its third century. This paper emphasizes the enduring significance of Founding machinery in shaping the development of the Living Constitution. Pride of place goes to the separation of powers, and especially to the Founding decision to stagger terms in office - two for the House, four for the President, six for the Senate and life for the Supreme Court. This makes it almost impossible for a movement-party to gain control over all the levers of power at a single moment, and imposes a more deliberate pace on constitutional revision. This dynamic systems of checks and balances places the burden of persuasion on the partisans of the new constitutional vision; they must keep winning elections long enough to gain control of all three branches in order to achieve a constitutional breakthrough in the form of landmark statutes and superprecedents. The paper predicts that the separation of powers will be the central mechanism for constitutional transformation in the coming century.