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
Living Constitutionalism and the Idea of Core Meaning
As usual, Larry Solum asks good questions (when he's not trying to trip us up with April Fool jokes -- I was really looking forward to that Tribe article!). He wonders whether changing contexts can alter the core meaning of constitutional clauses. In response, let me make some quick points about altering the meaning of clauses that may or may not be vague. Let's remember that Madison and Jefferson thought Hamilton was changing the core meaning of the enumerated powers doctrine and the necessary and proper clause. There were any number of battles in the 1790s that showed deep disagreements over matters fundamental and textual. And how does Marshall try to settle some of same issues in McCulloch? Not by adverting so much to semantic meaning but by making structural historical arguments and invoking the earlier debates over the national bank.
What is going on here? Why can't the framers get their own story straight? It is useful to keep in mind that the Constitution was offered as a take it or leave it proposition. This is the "no amendments allowed means no certain originalist interpretation" argument best put forward by Jack Rakove. The ratification conventions are great, but without the textual clarification engendered by voting on serial amendments, there is no certain "liquidation" of meaning. That is one reason efforts to decide contemporary cases by looking at evidence from the ratification process tend to end up snipping quotes here and there.
Another essential point to bear in mind is best captured by Walter Murphy's query: What is the Constitution? If you keep talking about it as an assemblage of clauses, the project of determining semantic meaning looks plausible. Once we take a step back and realize that principles, concepts and institutions outside the literal text are often just as important, this approach looks less realistic. Functional operators (I made this term up) such as federalism and separation of powers are conceded to be proper bases for decision even though not in the literal text. And how is their meaning determined? Experience shows the way.
But what about clauses that are clear? Could subsequent events divert us from true semantic meaning? Some would look at the Court's 11th amendment doctrine and say yes. And I suppose similar arguments could be made about the fourteenth amendment's privileges or immunities clause. Usually the culprit is a functional operator -- federalism arguably in both cases. Like many a textualist, I would often prefer the "document" over the "doctrine." But in this post I'll take the descriptive side and say: of course, our constitutional tradition shows that core meaning some consider clear can be overriden by subsequent events including precedent.
What about Jack's examples like "domestic violence?" He notes we seem to adhere to eighteenth century meaning, not contemporary meaning. But this is only because no intervening events have turned such clauses into the swiss cheese that the 11th amendment has become. My point about Heller concerns the strange discourse that results when we pretend that nothing has changed since the eighteenth century. I'd extend the same logic to any of the "con crim pro" amendments that are more specific than the second amendment. But again, in line with what I argue in "Rebooting Orginalism," the task is not to interpret such phrases in light of "contemporary meaning" but rather to apply the entirety of our constitutional tradition in the search for a meaning that will most persuasively resolve a contemporary case.
"Once we take a step back and realize that principles, concepts and institutions outside the literal text are often just as important, this approach looks less realistic."
Nah, it's still perfectly realistic, you just don't want to do it because you don't LIKE what the Constitution says.
I really wish people who just flat out don't like the Constitution we have, or the idea of written constitutions to begin with, would be honest with us. The Constitution isn't 'radically indeterminant', it just says things a lot of modern lawyers don't LIKE. And which they rightly fear their dislike of isn't shared by enough of the peons to make repeal feasible.
Let me be clear about this: The whole edifice of 'living constitutionalism' was created because some lawyers and politicians back in the early 20th century didn't like what the Constitution said, and didn't think they would have enough public support to amend it to be more to their liking.
Some people would have just lived with the frustration, or made a sustained effort to change public opinion in order to lay the ground work for an amendment. But these chaps were too impatient for the latter approach, and too full of the importance of their own opinions for the former.
So they went ahead and usurped the powers they wanted, and intimidated the judiciary into going along until they could staff it with toadies who'd do so voluntarily. And living constitutionalism is nothing more than the after the fact rationalization for this crime. Because the people who staff the mechanics of this ongoing crime really don't like to think of themselves as criminals.
Sometimes you get tired of watching the Emperor walk by, and going "Yup, nice robes!" while rolling your eyes, and have to say it like it is.
"What is the Constitution? If you keep talking about it as an assemblage of clauses, the project of determining semantic meaning looks plausible. Once we take a step back and realize that principles, concepts and institutions outside the literal text are often just as important, this approach looks less realistic."
Three cheers for Murphy's what-is-the-Constitution question. But why think that principles outside the text are part of "the Constitution"? As I see it, to answer that question, we have to dig into the actual Constitution, starting with article VI, to see what it means when it uses the phrase "this Constitution." I think that that phrase refers to the historically-situated text. For instance, Article IV talks about "this Constitution" not being construed to prejudice property claims, Article V talks about "part" of "this Constitution," and Article VII talks about "this Constitution" being ratified. But it's hard to see how a moral principle, concept, or institution could be construed to prejudice claims or have parts or could be ratified. The text is what does all those things. Further, forms of "here" refer to actions performed by "this Constitution," suggesting that the text is essentially telling us "here is the Constitution."
This argument is still a work in progress, of course, so I'm especially curious what support anyone can give for a different view of "the Constitution."