Balkinization: Framework Originalism and the Living Constitution

Framework Originalism and the Living Constitution

I have published my latest essay, Framework Originalism and the Living Constitution on SSRN. This essay was written for a symposium on "Original Ideas About Originalism" at Northwestern University Law School in April.

This article expands on my theory of original meaning originalism first developed in Abortion and Original Meaning and Original Meaning and Constitutional Redemption. My project in these essays has been to rethink the ideas of originalism and living constitutionalism and show why they are compatible. The current essay gives a new account of living constitutionalism that meshes with the version of originalism I've developed in the first two essays.

Here is the abstract:

This article is the third in a series rethinking the relationship between originalism and living constitutionalism, and arguing that the two approaches are compatible rather than opposed. This compatibility helps us understand how legitimate constitutional change occurs in the American constitutional system.

The most plausible version of orignalism is framework originalism, which views the Constitution as an initial framework for governance that sets politics in motion, and that must be filled out over time through constitutional construction. In implementing the Constitution, later generations must remain faithful to the basic framework, which requires fidelity to original meaning but not the original expected application of the text. This permits a wide range of possible future constitutional constructions that implement the original meaning and that add new institutional structures and political practices not inconsistent with it.

Framework originalism leaves space for future generations to build out and construct the Constitution-in-practice. Living constitutionalism occupies this space. It explains and justifies the process of constitutional development. Thus, strictly speaking, living constitutionalism is not a theory of constitutional interpretation at all but a theory of constitutional construction.

Today people generally associate "living constitutionalism" with judicial decisions; but the political branches actually produce most living constitutionalism. Most of what courts do in constitutional development responds to these political constitutional constructions. Courts largely rationalize, legitimate, and supplement what the political branches do.

People often speak of living constitutionalism as an interpretive approach or method that judges could and should consciously follow. In fact, living constitutionalism does not offer particularized advice to judges. It is a theory of the processes of constitutional decisionmaking, and their basis in democracy and in the ideals of popular sovereignty. It focuses on the entire system of constitutional development, of which courts are only one part.

Posted 10:15 AM by JB [link]

Comments:

The latest installment in your effort to deprive originalism of all meaning, so that living constitutionalism can claim to be originalism.

I wouldn't be bothered by a "living constitutionalism of the gaps", which appears to be what you're implying in this post, but that's not the living constitutionalism we see in practice, which holds the ENTIRE constitution to consist of gaps.

As I've remarked before, living constitutionalists experience ambiguity as empowering, which is why they find parts of the Constitution ambiguous that nobody for whom English was a first language would normally have any trouble with.

# posted by

Brett : 12:29 PM

I was glad to see the establishment clause mention at page 39 in the article. Some of the exegesis reminded me of the thresholds one faces in digital sampling, or the early technology of motionpictures on celluloid, naysayers declaring we ought pause a moment and examine the sample while disregarding the overall motion, or perception of motion. A math page with related charts and graphics is available there, for the abstractly inclined.

# posted by

JohnLopresti : 2:48 PM

Very interesting article. A few comments:

1. What about cases where the framework may contradict the living? E.g. INS v. Chadha and Synar v. Bowsher. What is the difference between these delegations and those to the "independent agencies"? Is there a principled distinction between permissible and impermissible reallocations of government functions?

2. If both the legislative and executive branches can contribute to the construction process, how is it the Supreme Court's role to intervene in cases like Chadha and Synar? Would Boumedienne come out differently? What about signing statements?

3. What if the construction process gets off track? For example, in Katz, the Court said the Fourth Amendment protects people not places. While this covered wiretapping, it lead to the development of the Fourth Amendment standing doctrine and the "reasonable expectation of privacy", which have done the most to reduce the actual protections provided by the Fourth Amendment. It has also lead to a hierarchy of expectations of privacy, with the home at the center, e.g. Kyllo, to try to restore some of the framework. And it has led to loss of privacy for the explicitly-mentioned "papers and effects." US v. Seljan, CA9 05-50236 10/23/08 (en banc, Kozinski dissenting). The Katz Court had the right idea, but chose the wrong rationale; is there a principled way to determine when this has occurred?

# posted by

Anonymous : 3:28 PM

I've heard Bork claim that constitutional interpretation is fundamentally the same thing as statutory interpretation. He means by that, I think, that the regulative ideal in both domains is some notion of original intent. (I note the irony of his apparent dismissal, in the context of American constitutional interpretation, of natural rights jurisprudence.)

This is a long way around to my question. Do you, JB, think the regulative ideal is the same for constitutional and statutory interpretation?

# posted by

pinkerd : 4:56 PM

Professor,

May I ask some meta-questions? What is the goal of defining and refining interpretive methods? To increase the likelihood of folks finding "the right" answer? Wouldn't that presuppose the existence of a definite-article-THE "right" answer, as well as presupposing the existence of people interested in finding same separate from the immediate benefits which would accrue to them under various plausible interpretive schemes?

I ask because it seems to me this "Originalism/Living Constitution" thing is yet another reactive, defensive liberal failure. Professor Tamanaha has mustered empirical evidence that political view is the better predictor of judicial decision, and attention to things like originalism or textualism or stare decisis or any other scheme tends to shine with the lustre of post hoc incorporation in service of a political goal. (Funny how Scalia isn't banging that "anti-majoritarian" drum these days, eh?)

I understand the need for academics, and the academics's need for nuance, the search for synthesis. But I can't help wishing we had a little more focus on that intersection of nuanced academic thought with pragmatic political reality. No matter how good a theory of interpretation you devise (and you're more likely than the average bear, or Ivy League prof, to devise a spanking good one) nothing can prevent it from being co-opted one day by a Scalia or a Roberts when it happens to suit their political agenda, nor from being ignored, rejected, and even vilified when it would lead to results in conflict with those agendas.

Or do I miss the point?

# posted by

Robert Link : 6:38 PM

Today people generally associate "living constitutionalism" with judicial decisions; but the political branches actually produce most living constitutionalism. Most of what courts do in constitutional development responds to these political constitutional constructions. Courts largely rationalize, legitimate, and supplement what the political branches do.

Interesting backhand admission that "living constitutionalism" is simply the judiciary acting as a third political branch and legislating from the bench.

# posted by

Bart DePalma : 9:28 AM

dear professor,
none of my professors, except one adjunct who later became a supreme court judge, now under indictment, were ever trial lawyers

i have been to the court of appeal less than 5 times

i am in court about 4 plus days a week

your paper is entertaining, like most of law school which was all entertainment of the lawerence welk style

judges are always not like me or my clients, because they pretend to be not human

so i have great success seeing each judge as an unhappy person and try to make them happy

all this stuff about interpreting is a bit like moaning about the size of the bullet the squad is about to put thru my brain

i have found it helpful to always try to find a way to humanize the client and see the judge as a person in need of help while saving his/her dignity

judges make decisions to flesh out the world they want....it is that simple

bad judge bad decision says northrup frye some 30 years ago...in "educated imagination" and i stick by that insight

judges never have to worry about not having any toilet paper i tell my clients...they get it and they understand they will have a hard time in court and it allows the client some room to learn about politics...because criminal law and family law is all politics

judges are quiet politicians they do not interpret the constitution...at least in trial court...they use it to tell you who they are and how they want the world to be

i use the info to tailor my case and hope...yes... lots of hope
david michael boulding
www.davidboulding.com

# posted by

Unknown : 5:56 PM

Why are there these nitpicking distinctions between original meaning, original intent, and original expected application? Why wouldn't the Founders have wanted all three to be the same?

Originalism needs to be condemned, not sugar-coated and excused. Activist originalist judges see themselves as white knights in shining armor -- or a Horatius at the bridge -- heroically saving the Constitution and the ideals of the Founders from the tyranny of the great unwashed majority. Many crackpot originalists believe that the Founders' beliefs should be controlling even when those beliefs are not expressed, implied, or even suggested in the Constitution. Even if we could agree about the beliefs of the individual Founders, there would still be the problem of which Founders' views to emphasize -- for example, the religion-related views (I use the term "religion-related" because some Founders who supported the establishment clause might have been very religious) of Washington have been conveniently ignored while the religion-related views of Jefferson and Madison have been emphasized. The originalists have never even explained why court decisions should give the Founders' beliefs extra weight, let alone explained why the Founders' beliefs should be controlling. In the area of the establishment clause, originalism has completely destroyed objectivity in the study of the Founders' beliefs about religion and church-state separation -- as a result of originalism, the Founders have been portrayed as everything from a bunch of bible-pounding holy-rolling fundies to a bunch of godless blasphemous atheists.
.
One of the most egregious examples of activist originalism gone berserk is Judge John E. "Jackass" Jones III's statement (I got the nickname "jackass" from Dover defendant Bill Buckingham -- I like it because it is alliterative) in his Dickinson College commencement speech that his Kitzmiller v. Dover decision was based on his cockamamie notion that the Founders based the establishment clause upon a belief that organized religions are not "true" religions. That statement showed extreme prejudice against Intelligent Design and the Dover defendants, regardless of whether or not ID is a religious concept. Ironically, he gave the speech while standing behind the Dickinson College seal, which was designed by USA Founders Benjamin Rush and John Dickinson and which contains a picture of an open bible and the college motto in Latin, "religion and learning, the bulwark of liberty."

# posted by

Larry Fafarman : 4:09 AM

As I've remarked before, living constitutionalists experience ambiguity as empowering, which is why they find parts of the Constitution ambiguous that nobody for whom English was a first language would normally have any trouble with.

Lawyers are trained to analyze language carefully, and therefore we tend to find ambiguity more often than others. That doesn't mean we're wrong, it may just mean that we're more precise. In general, a lot of progress in science has come from realizing that certain terms or concepts which everyone thought were well-understood in fact had latent ambiguities.

The other thing to bear in mind is that language is less precise than people seem to think. Talk to any linguist, and s/he would laugh at the idea that language has a fixed or absolutely determinate meaning. It doesn't, though fundamentalists of all sorts will always insist that there is one way and only one way to understand a passage.

# posted by

Mark Field : 1:37 PM

Mark, I'm well aware of the umpteen meanings of "pretty little girl's school", to use the classic example. But ambiguity only reaches so far, and if the language were ambiguous enough to legitimate current commerce clause jurisprudence, we'd give up writing and speaking, because all efforts to communicate would be futile.

In line with my remark, lawyers have created a parallel language, seemingly using the same words as the language the Constitution was actually written in, but considerably less confining. I believe Humpty Dumpty had something to say on the subject.

# posted by

Brett : 7:09 PM