Originalism versus Living Constitutionalism, or, Do Akhil and I really disagree?

JB

For example, I argue that

A living Constitution requires that judges faithfully apply the constitutional text, given the meanings the words had when they were first enacted, applying those words to today's circumstances. Original meaning does not mean original expected application.

As I see it, text without context is empty. Constitutional interpretation heedless of enactment history becomes a pun-game: The right to "bear arms" could mean no more than an entitlement to possess the stuffed forelimbs of grizzlies and Kodiaks. (And if history no longer constrains, why should spelling? Maybe the Second Amendment is about the right to "bare arms" and other body parts—e.g., nude dancing.)

Now look at Akhil's reading of Brown v. Board of Education. For Akhil, the key question is not whether the framers of the Fourteenth Amendment thought that segregation of schools and other facilities was constitutional. What counts are the *principles* enunciated by the constitutional text:

But the 14th Amendment, ratified in 1868, undeniably demanded that government treat blacks and whites with equal respect, equal dignity, and equal protection. All Americans‚—black and white alike‚—were proclaimed equal citizens by that amendment. True, some framers of this amendment did say that some segregation laws might be permissible. But in saying this, many of them were envisioning a postwar world in which both races in general might prefer separate spaces (as most men and women today probably prefer sex-segregated bathrooms in public places). In such a world, they believed, segregation would not always be unequal.

But the Reconstructionists never said that segregation would always and automatically be constitutional. The Constitution's text does not say that all citizens are equal "except for segregation laws." Rather, it uncompromisingly demands equality of civil rights‚—no ifs, ands, or buts. In fact, most Reconstructionists understood that a law whose statutory preamble explicitly proclaimed whites superior to blacks would be plainly unconstitutional.

Perhaps Akhil is worried that focusing on original meaning to the exclusion of historical context will lead to interpretations that are divorced from the larger principles which the text was designed to articulate and enforce. If that is his concern, you can see why he is worried about what he calls "pun-games." Without a focus on the history that produced the text, you could take the text, apply the original meanings of each separate word, put them together in a creative way, and come up with a principle completely foreign to the historical purposes of the people who framed the text and those who adopted it.

If that's Akhil's concern, then we still don't disagree. That's because focusing on the original meaning of the text requires that we focus not on each word in isolation, but rather in the context of what the words chosen by the framers and adopters are trying to convey. So Akhil would argue that the purpose of the Fourteenth Amendment is to secure civil equality before the law for all citizens, and the purpose of the due process and equal protection clauses is to extend basic rights to persons who are not citizens. Again, this seems right to me. Original meaning requires a focus on underlying principles which are to be derived from a study of the historical record. History counts. It also allows (or even requires) supplementation by structural principles. And finally, it also allows the interpreter to reason from past precedents if they are reasonable ways of fleshing out the meaning of the constitutional text and the principles that underlie the text. Those precedents need not be consistent with the original expected application of the text if they better articulate the larger purposes of the Constitution.

Moreover, note that Akhil's method requires that sometimes you must read the purposes behind the text at a fairly high level of generality. Akhil's view is that the sex equality cases in the 1970's are correct because the Fourteenth Amendment's guarantee of civil equality, together with the Nineteenth Amendment's guarantee of suffrage secured equal rights for women. That is so despite the fact that there is evidence that the framers of the Fourteenth Amendment did not wish to disturb the coverture rules which effectively denied married women almost all of their civil rights, and the Nineteenth Amendment applies to voting, not to coverture. To reach this conclusion Akhil must construe the principle of equal citizenship and the principles behind the text of the Nineteenth Amendment at a fairly high level of abstraction; even if the framers thought the coverture rules were perfectly constitutional in 1868 such rules would be unconstitutional today. Again, I have no problem with this line of reasoning. But if one is willing to read constitutional texts in that (in my view enlightened) way, the differences between people who call themselves "originalists" like Akhil and people like me who believe in a Living Constitution start to vanish.

To be sure, there are plenty of people who consider themselves originalists, like Justices Scalia and Thomas, who would reject reading the Fourteenth Amendment at that level of generality, arguing instead that we are bound by the expected application of the text at the time of its adoption. Akhil, I believe, rejects that view. Does that mean that he is not an originalist? He would strongly disagree.

So is there a real disagreement here? There might be two. First, as the case of sex equality suggests, I am often more skeptical than Akhil that we can justify current doctrine by reference to the original understandings of the framers and ratifiers, preferring to ground my arguments about the best interpretation of the Constitution on a combination of original meaning, pre- and post enactment history, structure, and precedent. Since Akhil also looks to all of these modalities, it's not clear if this is more than a disagreement about emphasis.

Second, we might disagree about why the best interpretation of the Constitution changes over time. Akhil sometimes sounds as if changes in facts explain all legitimate changes in constitutional interpretation; the principles themselves never change, only their application to a new set of facts. Thus, Robert Bork once said that Brown was justified because it became clear later on that you couldn't have segregation and equality, as if a change in facts occurred between 1868 and 1954 which made segregation unconstitutional (or as if the framers in 1868 were simply innocently naive in their belief that segregation was consistent with equality). This account of changed circumstances-- variations of fact against eternal principles-- is a traditional common law conception that you will find in thinkers before Cardozo. Cardozo is among the first jurists to suggest that common law evolution involves changes both in factual understandings and in the values that are used to understand those facts. (Akhil, I should add, does not believe that all constitutional principles are timeless. Some constitutional principles are modified by later amendments which supplement or alter them. This is the point of his book on the Bill of Rights; he argues that the meaning of the Bill of Rights was modified by the ratification of the Fourteenth Amendment. His point is that constitutional principles are not properly supplemented or altered in any other way than subsequent amendment).

I tend to look at constitutional change somewhat differently. My view is more like Cardozo's: Changes in facts only become salient or relevant against the backdrop of certain values, so that changes in factual understanding go together with alterations in underlying values. What happened between 1868 and 1954 was not just changed circumstances, but political and social movements that changed people's minds about what the principle of equality before the law encompassed. For me, post-ratification social movements like the struggle for civil rights (which, by the way, goes back long before the direct action phase of the Civil Rights Movement in the 1960's) reshape our understandings of changing facts-- and of facts that have not changed-- by simultaneously reshaping our values. So unlike Bork, I do not think that many or most of the framers and ratifiers in 1868 naively believed that segregation was consistent with equality. Rather, I believe that most of them were simply not comfortable with full equality for a race so newly freed from slavery, and they wanted to preserve the greater social status that came with being white. But they were wise enough and foresighted enough to choose language that could be read more broadly than what they expected or perhaps even wanted. And we should take them at their word rather than be controlled by their concrete expectations or intentions. That is why I have written:

Just as we may see the concrete practices of justice of those who framed and ratified the Constitution as compromised and imperfect, so we must recognize that others will someday see our own attempts at justice as equally flawed and deficient. That is why we owe it to previous generations to understand and apply their constitutional aspirations in their best light. We must carry on the work that they could only begin. If we read this document as fulfilling their best aspirations rather than chaining us to their worst fears, we do them greater honor than any slavish adherence to their concrete practices could; and perhaps, if we are fortunate, we may merit an equal charity from the generations that come after us.

Now the standard way that one can avoid saying that there has been a change in values as well as facts is to articulate the relevant constitutional principles at a fairly high level of generality. I think that this is what Akhil sometimes does. He would deny it; rather he would say that he looks at the historical principles at the appropriate level of generality contemplated by the framers and ratifiers, subject to change by later amendments. Perhaps our most significant disagreement then, is not about originalism versus living constitutionalism, but a disagreement about what is actually going on in this process of constitutional interpretation.