Balkinization  

Monday, March 31, 2008

Hard Core Living Constitutionalism

Stephen Griffin

Because of Jack's recent posts on living constitutionalism this might be viewed as a response, but I don’t mean it that way. His posts have been a wonderful and much-needed contribution to our understanding of living constitutionalism. I am recommending them to my students.

I have been thinking about how to define a “strong”, “robust” or “hard core” version of living constitutionalism in order to distinguish it in a clear way from opposing views. This is difficult if living constitutionalism is defined in a watered-down way that makes it too easy for most (not all!) to nod heads and agree that the judiciary has adapted the often vague text of the Constitution to changing historical circumstances.

Hard core living constitutionalism means the Constitution and constitutional change should be described, explained, interpreted, and justified in a fully historicized way. Properly understood, living constitutionalism is a full context sport. Let’s take interpretation, since in the DC gun case oral argument we had an outstanding example of undead constitutionalism, the kind that doesn’t live but talks. When interpreting the text or a principle, concept or institution (such as federalism, separation of powers, sovereignty) we first ask whether the context in which that phrase or principle is interpreted has changed since 1787 (or when adopted). Among other points, this means asking whether the asserted state purpose existed in the eighteenth century. This is especially relevant in the case of gun control because the change in circumstances has been so dramatic. In 1787, cities were not the complex urban areas they are now and professional police forces did not exist. The urgency present during my lifetime about crime control was not evident. Any approach that ignores this change in context will inherently undervalue the state purpose behind the legislation and privilege what we would now call a libertarian theory of the state.

And isn’t that what happened at oral argument? As Dahlia Lithwick recounts, more time was spent on grizzly bears than crime control, despite Justice Breyer’s efforts. I would have thought a little more attention was due on the part of lawyers arguing for DC to the threat guns can pose to police officers. Focusing on police helps make the point about the difference between the eighteenth century and today. Unless we are talking about an absolute right, a right so important that the state justification is irrelevant, the justices must always consider the rationale behind the legislation. But if the rationale is not reasonably analogous to any eighteenth-century purpose, making originalist analysis the sole touchstone will be biased against the state. That might be catnip for libertarians, but that doesn’t describe the constitutional law status quo.

What happened in Heller makes me more sympathetic to Jeremy Waldron’s critique of judicial review. Is there any area of policy where we would accept no evidence beyond what happened in the eighteenth century? The kind of discourse that results looks a bit lunatic from the outside.


Ignoring context and paying attention only to eighteenth century evidence also harmed deliberation over the Clinton impeachment. Scholars were so fascinated with the eighteenth century meaning of “high crimes and misdemeanors” that they forgot to analyze closely the relevant prior impeachments of Presidents Johnson and Nixon. As a result, they missed what was really different and dangerous in the Starr investigation – that it could have easily morphed into the first indictment and prosecution of a sitting president.


The same tendency has plagued the debates over presidential powers in wartime and the president’s power to initiate war. More attention has been shown to episodes such as going after the Barbary pirates and the Civil War than to the changes in the U.S. role in the world (and renewed attention to moral values such as those in the Geneva Convention) after World War II.

Over time, we have acquired experience with what constant resort to an eighteenth century baseline means. It leads to “law-office history”, just-so stories about framers’ intent, and a relentlessly “Whig” approach to U.S. constitutional history in which the winners are always imbued with contemporary values. It also leads, believe it or not, to Supreme Court justices actually ignoring changes made by subsequent amendments, as in the Burger and Rehnquist Court federalism opinions that failed to mention the fourteenth amendment.


Context matters not just because the Constitution is vague in some respects, but also because it is short. It was deliberately not an attempt to settle a vast array of policy questions in the manner of our state constitutions. By and large, it leaves questions of policy for politicians. But contexts for policy change. Unless we want to keep having constitutional debates set in an eighteenth-century policy context, we must consider a role for changing circumstances in constitutional interpretation. Changing circumstances include subsequent amendments, precedents, and key constitutional events, the sum and substance of a constitutional tradition that connects us with the past but is not derived from it exclusively.





Comments:

I know from your previous posts that you don't mean to exclude consideration of all the intervening history since 1789. IOW, it's not just the two endpoints which require analysis, it's every point in between as well. It's that history which leads up to and informs our current understanding.
 

Is that fair to what happened at oral argument? It strikes me that you have, in the Second Amendment, a piece of constitutional text that's very ambiguous and very uninterpreted by the Court, and before you can get down to context and scrutiny and justifications for DC's ban, you have to first determine what the Second Amendment means. You can't deal with context that might justify infringing on a right if you don't know what the right even is. Since there's so little controlling precedent, it's only natural that Dellinger and Gura would spend most of their time arguing for their respective versions of what the Second Amendment means, and how else are you going to illuminate that than by making recourse to intent and the English Bill of Rights and Blackstone and the sorts of gun laws on the books at the time? If I'm defending DC's ordinance, I'm not going to concede the point that there's a non-militia-related right to bear arms and move on to my justifications for infringing on that right, I'm going to say what Dellinger said, that we're not infringing on anyone's rights because the Second Amendment is just about the militia. Now maybe as a tactical matter, once it became obvious that a majority of the Court appeared to believe that there was an individual right that has nothing to do with militia membership, Dellinger should have said "okay, even if you think that, crime control's an awfully compelling state interest and one that this law advances" - but I would be surprised if the opinions in the case just focus on 18th century law to the exclusion of contemporary context. Surely they have to address DC's claimed justifications for the law. I don't think anyone's arguing that just because crime control wasn't a problem in 1790 it can't be advanced as a justification for a gun ban today.
 

What a fine post... and let me second Mark too:

The context is the whole context.
 

Scholars were so fascinated with the eighteenth century meaning of “high crimes and misdemeanors” that they forgot to analyze closely the relevant prior impeachments of Presidents Johnson and Nixon. As a result, they missed what was really different and dangerous in the Starr investigation – that it could have easily morphed into the first indictment and prosecution of a sitting president.

This is a curious analogy to make. So what if impeachment morphed into an indictment of a sitting president? Couldn't Nixon have been prosecuted if he hadn't been pardoned?

Are you saying that impeachment is only OK if it is purely symbolic? Seems to me the whole point of impeachment is to remove someone who should be prosecuted, but can't be because they are a sitting president. You may not think that Clinton deserved to be removed, but that is a far cry from saying that the Starr investigation was dangerous because Clinton could have been removed.

More generally, your analogy raises what is really the issue about what you call "context," namely, that it is such a subjective thing that it can be used to justify curtailing or expanding any right whenever you can get five votes to agree that the context has changed. At least with originalism, though a right cannot be expanded, it can't be contracted either. You are not at the mercy of a court that decides that 'in context' freedom of speech was not intended to allow people to criticize the government during wartime, or some other such nonsense.

Have you considered the idea that the second amendment means what Scalia, et. al. thinks it means, but was just a bad idea? And that the way to remedy it now that it is obsolete is to repeal or modify it, rather than interpret it away?

I wonder what you think the point of the amendment provisions of the constitution are if we allow SCOTUS to serve as a permanent constitutional convention and ratification emporium.
 

"But if the rationale is not reasonably analogous to any eighteenth-century purpose, making originalist analysis the sole touchstone will be biased against the state."

It's a Bill of Rights. By definition it's 'against the state'. If you interpret it in a manner friendly to the state, you're dismissing it's whole point in existing.

Geeze, you might as well complain that leaving manacles locked is "against the prisoner".
 

Discourse on "living constitutionalism" is most welcome. Actually, this is a revival that is long overdue. But just as there are variations of "originalism," there will be variations of "living constitutionalism," such as "hard core." Score cards need to be developed for both groups in order to lessen confusion, by identifying the variations and their proponents. How about "fair and balanced" as a variation of "living constitutionalism"? Or as a consensus of a blending of both "originalism/living constitutionalism"? All learned professions learn from and build on the past, hopefully resulting in better understanding and improvement.
 

"How about "fair and balanced"

how 'bout "Just and True" ..i'm burned out on "fair and balanced" .. :)
 

I would suggest that consulting history before ignoring it is a distinction without a difference between living constitutional theories.

Professor Balkin pretty much summed up the only real limits to living constitutionalism - specific limitation such as the age limits for taking office which cannot be easily redefined.
 

More generally, your analogy raises what is really the issue about what you call "context," namely, that it is such a subjective thing that it can be used to justify curtailing or expanding any right whenever you can get five votes to agree that the context has changed. At least with originalism, though a right cannot be expanded, it can't be contracted either.

This is mystifying. It's originalism which is "a subjective thing that can be used to justify curtailing or expanding any right whenever you can get five votes to agree that the context has changed." Originalism is just an excuse for conservatives to "amend" the plain language of the Constitution by judicial fiat without taking the trouble to follow Art. V.
 

Originalism is just an excuse for conservatives to "amend" the plain language of the Constitution by judicial fiat without taking the trouble to follow Art. V.

Exhibit A would surely be Hans v. Louisiana, where the Court rewrote the 11th Amendment in a manner that makes the arguments over the 2d Amendment look positively quaint.
 

I would suggest that consulting history before ignoring it is a distinction without a difference between living constitutional theories.

Professor Balkin pretty much summed up the only real limits to living constitutionalism - specific limitation such as the age limits for taking office which cannot be easily redefined.

Professor Balkin suggested lots of limits on living constitutionalism. But Bart DePalma's brilliant jurisprudential thinking is summarized as follows: "conservatives = follow the law = good; liberals = ignore the law = bad".

Again, Bart, an ingorant person only looks more ignorant when he mischaracterizes the arguments of an expert in trying to knock them down. You really need to withdraw from this discussion until you've spent a couple of years reading the scholarship of H.L.A. Hart and John Hart Ely and Ronald Dworkin and other giants of jurisprudence.
 

I just don't know what Griffin's arguing for here. Should the Court just abrogate the right because it was a bad idea in light of cities becoming the complex urban areas they are today? I don't think they can do that. Should they pretend the Second Amendment's all about the militia because that would be a convenient way to uphold gun control laws? I don't think anyone's saying that, once we get at what the right is, you can't take into account the contemporary context. Of course, that being said, it's not clear that DC's gun ban is doing anything to stop crime.
 

The advantages frequently ascribed by originalists to original meaning (determinacy, objectivity, legitimacy) are in fact all greater with respect to contemporary meaning -- contemporary meaning being unquestionably more determinate and objective than original meaning, and arguably at least as legitimate (we're the people now, after all). So it seems to me that "living constitutionalism" could fruitfully be cashed out as something like "contemporary-meaning formalism." That would be hard-core!
 

If handguns are so deadly , why does DC issue them to Police. If one truly wants living constitutionalism, then part of that life is acknowledging that in the south in the 1960's, the police were firmly in the pocket of the Klan. Why should the be allowed arms the people are not? Had that been the contours of the right the Civil Rights Movement would have turned out very differently. I suggest familiarizing one's self with The Deacons for Defense.

-Gene
 

Eugene Volokh wrote an article on the living constitution and the Second Amendment:

Who’s Right on Second? Living, breathing decisions.

Quote:
...So under all these approaches, the right-to-bear arms should be read as forcefully today as in 1791 — or perhaps more so. What then do people mean when they say that "evolving standards" should lead courts to reject the individual rights view of the Second Amendment? Seems to me there's only one meaning: That judges should look not to the Framers, not to the 1868 Ratifiers, not to state constitutions, and not even to polls — but only to what they think is right, or perhaps to what the social class to which they belong (elite urban lawyers) thinks is right. You don't like a constitutional right, your honor? You don't think it makes sense today? No problem! Just evolve it out of existence.
 

"okay, even if you think that, crime control's an awfully compelling state interest and one that this law advances"

The above is as much a fairy tale statement as the fiction of the 2nd amendment being a collective right. Not much reason for Dellinger to go from one lie to another more obvious lie if 47 amicus briefs pointed out that DC's gun ban appears to have made crime in DC worse. (Well, maybe not as many as 47.)
 

I always considered the "relativist" interpretations to be just another way to rationalize what they want to do without appearing to have that pesky constitution get in the way. This is another classic liberal tactic. If the words in the discussion or problem are not favorable to the "cause" then either stigmatize the words, claim them to be obsolete, or just redefine them. The "collectivist" view of the 2A is just another version of the same thing. So is political correctness.

Humpty Dumpty in Alice in Wonderland would be proud of the way they get such use out of words.

Did the relativists forget that there is a process provided for to change the constitution if it becomes obsolete? Of course that would require passing a hurdle that most changes would not be able to. The nerve of those pesky founders! "Let's circumvent the process that we can't satisfy by just reinterpreting it the way we want!"
 

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