Balkinization: The Problematic Living Constitution: The Dead Hand and the RoR Fallacy

The Problematic Living Constitution: The Dead Hand and the RoR Fallacy

Stephen Griffin

I’m continuing with this series of posts on the new originalism and living constitutionalism by distinguishing between theories of constitutional change and the most popular version of the idea of a “living” Constitution. The last post argued that one key distinction is that theories of constitutional change are historicist while standard-form living constitutionalism is not. This post hits closer to the living Constitution’s home base by contending that the main negative and positive arguments typically employed by living constitutionalists are flawed. One negative move used against originalism by living constitutionalists is typically known as the “dead hand” argument. I have to admit I never found this argument very persuasive and so I didn’t pay much attention to it in my prior work. But this may be misleading, because some of the arguments I endorse as supporting my line of inquiry into the theory of constitutional change might be identified by other scholars as “dead hand” arguments – specifically, arguments about the difficulty of making formal changes through Article V.

I still don’t think of my own position as involving a commitment to “dead hand” arguments because in their typical form, such arguments simply sweep too broadly. Here I have little to add to Jack Balkin’s dead-on-target discussion in Living Originalism that such arguments indict the entire project of limiting and empowering government through a written constitution. They are quasi-Jeffersonian arguments against the project of constitutionalism as such (although I believe a soon to be published article in APSR will show that Jefferson’s position was more nuanced). I would just add that this round of argument seems to assume there are only two kinds of clauses in the Constitution – “hard-wired” provisions that everyone believes should be followed as written and abstract clauses, the “glittering generalities” of the fourteenth amendment, for example. I would contend that a third category of constitutional provisions should be recognized, exemplified by the list of enumerated powers granted to Congress. The commerce and declare war clauses, for example, cannot be said to be “hard-wired” because there are longstanding disputes over their meaning. Yet these clauses also have a solid core of determinate meaning that makes them very different from the sort of rights provisions usually relied on by living constitutionalists. I’m enough of a living constitutionalist to think that further inquiry into either semantic meaning or historical purpose will not yield much of contemporary value with respect to the generalities of the fourteenth amendment. Yet the “hard-wired” clauses are not the only provisions that impose hard limits on what government can do, at least absent an account of how their meaning can change legitimately outside Article V. These hard limits, for example, are of crucial significance in the traditional war powers debate. It is unclear, however, whether the leading versions of living constitutionalism can accommodate the limits imposed by this third category of constitutional provisions.

Now to proceed further in showing the problems with conventional forms of living constitutionalism, I will first highlight the response Mike Dorf gave to Balkin’s criticism of the dead hand argument in his HLR review. I’ve always admired Dorf’s depth of knowledge on constitutional theory and thought his review was as good a statement as we are likely to get of where living constitutionalists stand on the different strands of argument involved in the debate between them and the new originalists. Dorf took note of Balkin’s contention that dead hand arguments sweep too broadly, but said this point is only effective “if one thinks that the Constitution’s legitimacy must be grounded in an original act of lawmaking.” Dorf’s nonoriginalist alternative ground, very popular among living constitutionalists, is the contemporary acceptance of the Constitution by the people of the United States. In particular, he invokes Richard Fallon’s discussion of this move, which is based in turn on H.L.A. Hart’s theory of law and Hart’s influential concept of the “rule of recognition.” Based on my understanding of Hart’s theory, however, I believe there is a pretty big problem with this move, at least if we stay within the terms of Hart’s theory. Please keep in mind that the following discussion of what I call the “RoR (rule of recognition) fallacy” is based entirely on what Hart says about this concept and its application (which poses some problems) to the U.S. legal system. I’ll try to be precise about what I think the problem is because if I’m right, quite a few scholars have been led astray about the potential of the RoR to ground the legitimacy of nonoriginalism and the living Constitution.

Hart’s theory is fairly familiar. He contends that the categories of primary and secondary rules are characteristic of developed legal systems. Primary rules govern behavior and would be the rules most familiar to ordinary citizens. But Hart argues that secondary rules are also necessary. These include rules of change, rules that tell us how to modify primary rules. Secondary rules are grounded ultimately in the rule(s) of recognition – a set of criteria which themselves need no legal validation as they are simply accepted by governing officials. Hart argues that this theory accounts for how a developed legal system overcomes the substantial defects of uncertainty, a static character, and inefficiency inherent in a system that lacks secondary rules.

In Hart’s theory the existence of the rule of recognition is a social fact. Although the Constitution would appear to be a natural candidate for the RoR of the U.S. legal system, there is a finely wrought dispute on this point, centered on a leading 1987 article by Kent Greenawalt. Nevertheless, I am reasonably confident that nothing that Greenawalt says about the possible flaws in regarding the Constitution as the RoR affects my argument here. Now notice the critical difference between the following claims:

(1) The content of the rule of recognition is a social fact.

(2) The rule of recognition for the United States is “social acceptance.”

On Hart’s theory, the first claim is accurate. But it is very unlikely that “social acceptance” could serve as the RoR of the U.S. legal system in the way claimed by Dorf, Fallon and other scholars. The RoR fallacy is thus regarding (2) as uncontroversially implied by (1). Consider that in in the context of Hart’s theory, the implications of saying that the RoR is “social acceptance” would entail that the legal status of any rule, including all constitutional rules, could not be known by officials unless they were able to reliably check on an ongoing basis their continued “acceptance” by society as a whole. You can see the problem. How would they do this? Grounding legal status on the inherently vague test of social acceptance would risk constant uncertainty about the status of all primary and secondary rules. But this is exactly what Hart’s conception of the RoR avoids. This suggests that something has gone badly wrong with this common use of Hart’s theory (by the way, I am not saying that Balkin makes this mistake).

Further, as Hart’s theory in effect predicts, that’s not the way our legal system works or how legal officials operate. They check the validity of rules by reference to other rules, not by consulting “social acceptance,” whatever that may be. Now in contending that standard-form living constitutionalism rests on an inherently vague test of legitimacy, I may appear to be repeating a charge originalists frequently make against nonoriginalism. To the extent that this version of nonoriginalism rests on an implausible account of the grounds of law, I plead guilty. As long as we are proceeding within the terms of Hart’s theory (as all of these scholars do) I think the theoretically safe way to proceed is to assume that the Constitution (or some part of it, as Greenawalt argues) is the RoR for the U.S. and reason from there. If that leads us to recognize that there are certain tensions between the rules in the Constitution and the way our government actually operates, especially after the New Deal, so much the better. We would then be on our way to a proper understanding of the problem of informal constitutional change – rather than avoiding it altogether, which on my way of thinking is the cost of the overly sanguine account of legitimacy promoted by living constitutionalism. In order to finish clearing the ground for the consideration of this problem, we need to discuss one more topic on which I happen to strongly agree with living constitutionalists and disagree with originalists – the difficulty of amendment through Article V.

Posted 4:57 PM by Stephen Griffin [link]