Friday, March 28, 2008
What Is Living Constitutionalism?, Part II
In the last set of posts, I've been explaining my views about living constitutionalism. I've argued that living constitutionalism is a process of change through which constitutional doctrine responds to social and political mobilizations and long term changes in popular opinion about what the Constitution means.
Can't your position on the Living Constitution be described in three words: "Evolution NOT Revolution"?
PARTICLE PHYSICISTS AND THE “BIG BANG” COMPARED TO CONSTITUTIONAL SCHOLARS AND ORIGINALISM
While particle physicists are of the view that the Universe continues to expand, they continue to look back light years to the “Big Bang” for its origins. Meanwhile constitutional scholars seem to split into two ranks, one group looking back to 1787-9 for variations of originalism of the Constitution while the other group focuses upon a living Constitution. Physicists look back and forward with the benefit of the scientific method and lots of expensive research to address the past measured in light years, the present and the future. Particle physics has underway an expensive research program in Europe with the Hadron Accelerator to learn more about the past, present and the future. (A dyslexic might wonder why so many millions are being invested at a time when Viagra works well, subject to certain side effects some may consider unfortunate.) If only constitutional scholars could avail themselves of the scientific method, perhaps they could better define constitutional issues we face.
I am not suggesting that the Constitution and its Amendments are the equivalent of the “Big Bang,” but it continues to be explosive. If fact, many are up in arms currently over the Second Amendment. Perhaps the Heller decision may be constitutional law’s “Big Bang.” But one thing that is clear is that the Constitution (like the Universe) is expanding despite, or because of, the battles between the originalists and the living constitutionalists.
A dyslexic might wonder why so many millions are being invested at a time when Viagra works well, subject to certain side effects some may consider unfortunate.
Because its the Hadron Accelerator, not the Hadron Fixer...
And here's a definitive takedown of the view (expressed in the last couple of comments threads on this issue) that the conservative Supreme Court justices are neutrally applying originalist principles, by Cass Sunstein, who knows a lot more than most of us on these comment threads do:
Could I raise a specific question about your abortion article? I agree with your take on originalism (though I'm not so sure that equal protection is a better way to get at abortion rights than substantive due process), but assuming that abortion bans violate some constitutional right, how should a judge decide whether protecting fetal life, viable or not, is a compelling state interest without ultimately just drawing on whatever view he has of the value of fetal life? Is there any value-neutral way to tease that out? The Constitution certainly doesn't give any guidance; it's clear enough that fetuses aren't constitutional persons, but the state has perfectly legitimate, even compelling, interests in protecting all sorts of organisms that aren't persons. (Indeed, some of your arguments for fetuses not being constitutional persons could be applied to infants; for example, infants can't incriminate themselves any more than fetuses can.)
I sometimes wonder if you think Article V a dead letter; There doesn't seem to be much recognition that you can change the Constitution by actually changing the text to say what you want it to mean.
It's a great point, and I've tried to address it in two places. One is in my edited collection, What Roe v. Wade Should Have Said, and in the follow up article to the piece you mention, called Original Meaning and Constitutional Redemption, which you can get on SSRN.
Well, I looked over your argument very briefly, but my response to the first point you make would be that you're holding compelling interests to an unduly high standard, or at least, one that I don't think is typical of how the Court applies strict scrutiny. (Maybe it's a fine standard that the Court should adopt, but that's another matter.) Take diversity in Grutter. A compelling state interest, we're told. But in a hypothetical world where every minority applicant had a LSAT below 156, there wouldn't be very much diversity going on at Michigan Law. A compelling state interest would bow to LSAT scores. (In fairness, Scalia made much light of the majority on this point, so maybe this is the mistake that proves the rule.) Mediocre LSAT scores aren't exactly comparable to the kinds of exceptions abortion bans have, like the health of the mother, rape, or incest. Remedying the effects of racial discrimination in contracting is another compelling interest the Court has identified, if only anyone could ever prove a history of said discrimination. Would we question how compelling the asserted interest really was if the set-aside plans that came to the Court said that you didn't have to do business with a minority subcontractor if his bid was four times higher than the next lowest bid or if he violated arcane federal contracting rules? I strongly doubt it. Compelling interests don't have to take precedence over all other interests to be compelling. Of course, they can't be taken too lightly or we will have reason to doubt the state's sincerity, but the state's allowed to balance them with the pursuit of other objectives.
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