E-mail:
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Corey Brettschneider corey_brettschneider at brown.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Jonathan Hafetz jonathan.hafetz at shu.edu
Jeremy Kessler jkessler at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at yu.edu
Rick Pildes rick.pildes at nyu.edu
David Pozen dpozen at law.columbia.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
David Super david.super at law.georgetown.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Nelson Tebbe nelson.tebbe at brooklaw.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
After
a series of posts evaluating the new originalism, I’m moving on to assess
conventional notions of the living Constitution. Let’s begin with two vignettes. Consider the comprehensive exchange between
Robert Bennett and Lawrence Solum in Constitutional
Originalism: A Debate (2011).
Solum’s exposition of the new originalism has to be one of the most
clear-headed and well-argued defenses of any theoretical position I’ve ever
read. It’s a minor masterpiece that I
would recommend to anyone.
But
note that in response, Bennett does not actually defend living
constitutionalism. That is, Bennett
deliberately offers no normative
defense of the argumentative tradition known as the “living” Constitution. From his point of view, living
constitutionalism was inevitable at some point given the existence of judicial
review and broader developments in American society. However general this sounds, Bennett is clear
enough that the living Constitution (somewhat paradoxically) is a matter of
history – something that already has happened in the course of Supreme Court
adjudication that (presumably) can’t be altered. I think this is an important clue about how living
constitutionalists tend to think and why sometimes there is a lack of
meaningful exchange between the two positions.
And one of my fundamental points in this and the next set of posts is
that the idea of the living Constitution should itself be understood
historically, through the lens of historicism.
My
second vignette is the contrast between the impact of Heller and Obergefell on
constitutional theory. There is little
doubt that Justice Scalia’s majority opinion in Heller, which relied heavily on the theory of original public
meaning (OPM), gave a huge boost to its credibility. In my estimation, this should not be surprising
because academic constitutional theory has always been a reactive enterprise – paying
more attention to the Court than what is going on in related academic disciplines
like history and political science. So
consider: will Obergefell similarly
serve to boost the idea of the living Constitution? Well, why not? Just as much as Heller served as an endorsement of OPM, Justice Kennedy’s majority
opinion in Obergefell is a symphony,
a festival of living constitutionalism.
That is, it is an opinion based on the idea that interpretations of the
meaning of “liberty” can legitimately change with the times, without a
subsequent constitutional amendment or inquiry into the OPM of the fourteenth
amendment. Kennedy also endorses the more
general argument that the framers of the Constitution deliberately “entrusted
to future generations a charter protecting the right of all persons to enjoy
liberty as we learn its meaning.” Living
constitutionalism is back!
Yet
for all this fulsome endorsement, I doubt whether Obergefell will serve as a reference point for future debate in the
same manner as Heller. This is partly because living
constitutionalism is not a “movement” for liberals in the same way originalism
is part of a conservative movement. But
it is also because there is a sense in which Justice Kennedy’s arguments are
unexceptionable, an accepted part of our mental furniture (well, some of us!). Like Bennett’s nondefense of living
constitutionalism, if you are on that side of Balkin’s coin, you don’t see
anything to defend. The living
Constitution just is.
Here’s
another way to look at the terrain that results from these vignettes. Quick: what’s the leading theory of
originalism? It’s some version of
OPM. But what’s the answer for the
living Constitution? Certainly Bennett
did not offer an answer. The answer I
will defend is that theories of (informal) constitutional change are the
leading theories of the living Constitution.
At the same time, however, and without probing too deeply for now, many
of these theories (including my own) have significant differences with
standard-form living constitutionalism that are not widely appreciated. Most popular accounts of the living
Constitution stress its continuity with the American constitutional tradition, for
example, saying it goes back at least to McCulloch. But theories of constitutional change need
not be based on such implausible and ahistorical premises. Further, these theories do not necessarily
advocate a unique method of constitutional interpretation. They rather offer a developmental perspective
on how the Constitution legitimately changes over time, particularly outside
Article V. They are designed to address
the problem of informal constitutional change, one of the most serious
historical and theoretical challenges for contemporary American
constitutionalism.
For
now, let’s stick with standard-form living constitutionalism. I’ve realized only relatively recently that
my position on constitutional change differs significantly from the
conventional version. In this and (mostly)
the next post, I’ll develop the differences and offer some criticisms of the
standard-form version. First, as just
suggested, conventional accounts of the living Constitution tend to veer away from
a historicist approach when it comes to explaining the origins of this
perspective. To maintain continuity with
the American constitutional tradition, advocates often claim implausibly that
this perspective has been with us since the early republic. Second, advocates are almost addicted to
blunt-force overly broad “dead hand” arguments that prove too much (a criticism
developed best by Jack in Living
Originalism and on which I will only slightly try to improve in a future
post). Third, more controversially
(because I haven’t seen this argument developed before), advocates appear to
depend on what I will call the RoR (after H.L.A. Hart’s “rule of recognition”)
fallacy, a move based in Hart’s theory that places emphasis on popular
acceptance in the present as the touchstone on which the Constitution depends
for its force as law. This last point is
a bit novel, so it will require a lot more explanation.
By
contrast, painting with a very broad brush, developmental theories of
constitutional change tend to be historicist, do not (or should not!) depend on
dead hand arguments, and (more controversially) basically agree with
originalists that the Constitution, especially when considered from an
institutional perspective, creates binding legal obligations that transcend
trends in popular opinion or acceptance.
It occurs to me that’s quite a lot to chew on, so I will save the
development of the points in this and the preceding paragraph for the next
post. Then I’ll move to making a more
positive case for developmental theories.