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.