Monday, August 29, 2005

Synthesizing Originalism and Living Constitutionalism


My defense of the idea of a living Constitution and my criticism of the way originalism is currently understood appears in Slate here. As you'll see from the piece, I argue that everybody is actually a living constitutionalist whether they admit it or not, because nobody wants to be bound by the original understanding once they understand what that really entails. Conversely, I argue that living constitutionalists are and should be bound by the original meaning of the constitutional text but not by its original expected application.

This puts me in the same camp for many purposes as someone like Randy Barnett, who regards himself as an originalist, or my colleague Akhil Amar, although in the Slate piece I'm distinguishing myself from and criticizing other people who also regard themselves as originalists (like Scalia and Thomas).

In fact, if my views are originalist in any degree, then it suggests that some forms of originalism and living constitutionalism are fully compatible, rather than opposed, as Justice Scalia contends. That by itself should suggest that the labels "originalist" and "nonoriginalist" may do far less work than people might think.

Perhaps more importantly, it also suggests the possibility of a synthesis of the historical work that originalist scholars have been doing over the past twenty years in uncovering the original meaning and understanding of the constitutional text with the premises of a living Constitution. In fact, I think such a synthesis is not only possible, but highly desirable.


Professor Balkin, maybe I'm all wet, but here is my reason for stating that originalism means the Constitution is a living document:

I also wrote that I view a living document as not a nilist position, but one in which the PROCESS of adjudicating is guided by what Ronald Dworkin calls "integrity" in the law:

No one really wants a living Constitution. Under a living Constitution, Roe v. Wade may be revisited. Same with Miranda and Mapp. A proponent of a truly living Constitution could make common cause with Justices Scalia and Thomas and revisit a long line of First Amendment or administrative law cases. What proponents of a living Constitution really want, just as much as proponents of a dead one, is to shape the Constitution to a particular set of policy choices, and then freeze it into place.

Tom's comment is a more clever way of saying that "living document" and perhaps "originalism" is just a cloak for judges to pursue personal policy views best left to the legislature.

If that is the case, and I respect Tom's position here if it is his position, he is simply saying what the so-called "legal positivists" said in the early to mid 20th Century. However, as Ronald Dworkin has said, such a position is a dead end and is nihilistic.

This is why Dworkin supported a process-oriented judicial philosophy based upon "integrity." This is not merely saying a judge should avoid taking bribes. This is in fact a process of decision making that judges should follow, which, in turn, recognizes the limits of our understanding what our Founders meant by open ended words in the Constitution in particular factual situations that occur, how decisions interpreting the Constitution themselves lead to other complexities, and recognizing that judges owe a fealty to the separate branches of government and the role of the judiciary.

While we will, even under Dworkin's formulation, continue to have disagreements over where the line is drawn in individual cases and perhaps on larger issues. However, Dworkin's approach to jurisprudence fills in much of the gap to which Tom may be alluding and gets us beyond the more simplistic sloganeering of "strict construction" "originalism" and "texturalism."

Let's assume that Iraq adopts a constitution. Keeping in mind that the entire world is well aware of the steps taken in reaching that point (as contrasted with the limited information concerning the efforts of our founding fathers) by Iraq's "founding fathers" and the US as its adoptive father in the process, can you imagine some years later when disputes arise under Iraq's constitution that the issue of originalism will surface? Randy Barnett seems quite confident as to the meaning of the Ninth Amendment based upon his research some 200+ years later but I am just as confident that he will be challenged by equally qualified legal scholars, perhaps rather effectively. I guess originalism is to be expected to be supported if it supports one's position and rejected if it does not. Let the legal spinning continue.

What is the difference between a written and unwritten constitution if the text is not authoritative?

This is not your best work. When are people who oppose originalism going to stop creating a straw man out of a bizarre amalgum of original meaning and original intent, picking whichever aspect best suits their point and relying on the ignorance of their readers?

You note that originalism would radically constrain the powers of the Federal government. And?

You note that originalism would render most of the Bush administration's policy goals unconstitutional. And? (And, for that matter, doens't that rather undercut the notion that this is just a conservative codeword?).

You note that originalism would overturn Griswold. And?

You note that originalism would overturn Brown. Why? Original INTENT, sure - original intent would overturn Brown. But mostly every originalist since about 1984 has rejected original intent, and many - Scalia included - have done so explicitly. Originalism would not have overturned Brown.

You note that Scalia and Thomas voted for Bush v. Gore. And you're right - that was "bad originalism" as you once put it. I'm convinced, you sold me long ago on that. If the 14th amendment applied to the franchise, why the 15th, 19th, 24th and 26th amendments. I agree. Okay, so Scalia and Thomas are sometimes bad originalists. This is supposed to be a criticism of the theory? Jesse Jackson and Pat Robertson are billed as Christian ministers; I do not reject Christianity just because I think they're both idiots, and it's no criticism of originalism to say that sometimes two of its adherents don't always follow it to its logical conclusions.

Raich - Scalia's result was perfectly reasonable, couched in the language of the necessary and proper clause. Thomas' dissent was ALSO perfectly reasonable. Originalism is not so deterministic that it removes ALL disagreement.

Worse yet, having created a straw man of originalism, you create a false god of the living constitution. You can't be serious when you say that "a living Constitution requires that judges faithfully apply the constitutional text" - this is so preposterous as to defy belief. What is the "faithful textual grounding" for Roe or Griswold? Living constitutionalists do not draw on "precedent, structure, and the country's history", they draw on the precedents which suit them, discarding those which do not, in search of the utilitarian constitution: you can almost picture Justice Breyer in the Ed Harris role from Apollo 13, screaming "I don't care what it was DESIGNED to do, I care what it CAN do!", always looking for a way to fix what they think is broken with society. Fixing what is broken with society - as opposed to ajudicating the dispites of two or more members of that society which might arise - is not a judicial function. If the law is an ass, it's the Judge's job to find it as an ass, apply it as an ass, and leave it as an ass. Don't like it? Resign from the bench and run for Congress! "Senator Breyer" has a nice ring, don't you think?

The choice is not between a judicial oligarchy or the obsolete shackles of the long-dead past. The constitution is not a pair of shackles; it speaks vividly and clearly to modern needs, even given the original meaning of its words. You say nobody wants to return to originalism. I dissent.

Balkin's Slate article is excellent and correct (except for its conclusion's paeans to the wonderful freedom of America and the assumption that judges, or the political system generally actually reflects the will of the people, ignoring the machinations of corporate elites.)

however the description above in the introduction by JB says that his June 2005 post suports the idea that judges are "bound" by the original meaning of the text. this is misleading because, since he recognizes structure, history, precednt as other modalities of argument, presumably judges aren't actually "bound" by the original meaning or text except that they are bound to consider it along with other things that might override it.

a very important point, which however should be obvious to anyone who has read Brest or Dworkin's writings from the 80s, is that there is no such thing as originalism; that concept must be disaggregated to look at what is the exact thing to which origins is relevant, textual meaning measured by the public, the ratifiers, the drafters, etc. (just as there's no such thing as being in favor of "democracy" -- since people of very different conceptions of democracy mean very different things by it (consider that communist countries claimed to be representatives of democracy; as did the Reagan administration in its Central American terror; as do Bush-style imperialists; as do Chomskyites, etc.))

there is something comical about the enterpreise of trying to refute or defend Scalia or Thomas's 'theories' of the Constituion -- though presumablyit must be done. the theories are, as Balkin's article suggests, merely ideological rationalization of their politics. if if sincere, scholars should not take the false consciousness of legal actors seriously.

Maybe we should have "living property lines" too, so that judges can shift the boundaries of real estate until they are more fair and equitable, and more attuned to current social conditions. Wouldn't we all feel secure in the fact that judges tampering with our property lines would be restrained by what Professor Balkin calls the "professional legal culture" and by the "structure" of our deeds? What more security could we possibly want?

Keep in mind that new, judicially-created privacy rights often conflict with and destroy the rights of other people. Once upon a time, no person's rights could be taken away except by authority of law, rather than by mere judicial fiat. But now judges destroy right all the time, as they purport to create new ones. Grandparents are deprived of their legal visitation rights. Fathers are deprived of their legal rights to know that their unborn children have been aborted. Children are deprived of their legal rights to preferably grow up with a mother and father.

Judges now lie in wait until the country is ready to "absorb" more of their commands.

Tim Sandefur has written the sort of rebuttal to Balkin's piece I might have want to write once I've calmed down a little more about this.

Sorry, couldn't resist.

it is not that one thinks it nice to have a living constitution; it is impossible not to. the fixity of meaning that fundamentalists -- oriinalists -- aspire to, does not exist, not on stone tablets, not on parchment.

Funny article. Of course, Scalia is a duck hunter, and if you can hunt ducks, you can hunt deer, so I think he'd probably be fine with the alternative. On the other hand, the joke's probably on the genie, since the market value of a deer is likely more than the market value of a greenback...;)

What, in your view, is the fundamental difference between a written and an unwritten constitution? Because it seems to me that the point of an unwritten constitution is to create flexibility, and the point of a written constitution is to create a solid bedrock on which to build a government. I prefer the latter, and fortunately, it's the kind we've got.

The thing I don't understand about all you people who want to extrapolate broad sweeping rights from specific enumerated rights is this. Why stop at a generalized, amorphous right to privacy that was never contemplated by the framers? Why not extrapolate an even more amorphous and even more generalized right to "good" laws?

Then the evolution will be complete: judges will have total power to strike down whatever laws they don't think are "good," restrained only by the "professional legal culture" and by the "structure" of the Constitution.

Another thing I don't understand: if there does exist a genral, amorphous constitutional right to privacy, then why should we expect that the Supreme Court won't strike down all laws that purport to forbid crimes committed in private. Oh, gosh, I forgot: that won't happen, because of the "professional legal culture" and by the "structure" of the Constitution. Silly me.

Another thing I don't understand: if there does exist a genral, amorphous constitutional right to privacy, then why should we expect that the Supreme Court won't strike down all laws that purport to forbid crimes committed in private.
An even better question: why, "if there does exist a genral, amorphous constitutional right to privacy", does the constitution guarantee SPECIFIC rights to privacy? Why declare "[t]he right of the people to be secure in their persons, houses, papers, and effects" when there is already a general constitutional right to privacy which would accomplish the same thing?

Answer: because there is no general constitutional right to privacy. Maybe there should be - but there isn't.

It's the same thing as the argument that the equal protection clause protects voting rights. If the equal protection clause applies the franchise, and if anyone prior to extremely recent times thought that it did, why was the 15th amendment passed almost immediately after the 14th amendment? why the need for the 19th amendment? Or the 24th or 26th amendments? Or, at a stretch, the 23rd?

It's just incoherent.

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A living document or dynamic document is a document which may be continually edited and updated by either a limited or unrestricted group. The United States Constitution is often considered a living document as, in non-Originalist jurisprudence, it can be reinterpreted and updated endlessly by judges without actual amendment; sportsbook, The common law to which the United States Constitution belongs (in the United States at least) itself is defined by living documents, such as judicial decisions, which can be interpreted to fit the needs of society.

Good could become the enemy of the best. That best is possession.
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