Balkinization  

Tuesday, May 20, 2008

Can Living Constitutionalism be Defended?

Stephen Griffin

My title is inspired by reading through the interesting symposium on Jack’s “method of text and principle” in the latest issue of Constitutional Commentary (and further reflection on Solum’s “Semantic Originalism”). Everyone seems to be running away from living constitutionalism! So can living constitutionalism (LC) be restated in a way to show it is defensible, despite Jack’s arguments? I think so, but what follows may strike you as an outlier version. For instance, I have never found “dead hand” arguments appealing and I think Jack’s arguments are well taken on this score. As long as you accept the Constitution as enforceable law, the dead hand governs legitimately. I do agree strongly with the common LC argument that the Constitution is practically impossible to amend.


What I have to say assumes that the method of text and principle requires both elements to be founded on original meaning, although not original expectation. In other words, if a principle does not have a pedigree in historical evidence from the time of the adoption of the text, it is not a principle to which we owe fidelity and is also illegitimate in constitutional interpretation. So we can’t invent principles post-text, we have to content ourselves with the class of principles that existed at the time the text was adopted (although it is not necessary that the framers specifically thought of them, endorsed them, etc.). I think Jack’s account of the principles behind the fourteenth amendment supports this, as he highlights the principles against class and caste legislation. These are principles rooted in the thought of the generation that adopted the Reconstruction amendments.


I also assume principles founded in 1789 original meaning can later be repudiated or, perhaps, fall into disuse because they are inconsistent with how the text has been amended. So it is conventional wisdom that the principles Justice Taney used in Dred Scott to deny citizenship to blacks were textually repudiated in the fourteenth amendment. And sometimes it is said that the effect of the Civil War was to repudiate the doctrines (ultimately founded on the principles of state sovereignty and constitution as compact) of nullification, interposition, and secession. This means the current set of constitutional principles is not the same as the set that existed in 1789. Just as the text has been altered, principles have changed.


At the same time, we should not assume that because the text has been changed, it is necessarily the case that relevant prior principles have been altered. This is part of what is going on in Slaughterhouse, an often-used example of departure from original meaning. Like many scholars, I agree the Court went too far in making the privileges or immunities clause a dead letter. Why did it do this? The Court thought that federalism, an important constitutional principle with an impeccable pedigree in original meaning, was implicated by the claim that states could be restrained by rights with respect to regulatory legislation thought desirable. The Court went too far in depriving the clause of meaning, but this does not imply there was no principle (or set of principles) concerning federalism grounded in original meaning. Research by many historians has shown that despite that impact of the Civil War, Reconstruction-era Americans remained firmly wedded to principles of federalism they correctly associated with the founding generation.


Now consider what would happen if there were a raft of principles grounded in original meaning that were inconsistent with legislation needed to address a crisis. Like after the Civil War, amendments would be appropriate. But further suppose that amendments were practically impossible. Now what? Of course, this is a description of what happened during the New Deal. Tremendous changes in government power, but no amendments. It is thus important for any theory of fidelity to account for what happened during the New Deal. Here is where LC comes in and I think what follows is a widespread understanding of LC at least with respect to questions of government power and structure (I’m leaving rights aside). LC is a theory that explains how the Constitution adjusted in a world where amendments were not practical rather than a theory that asserts we don’t have to be faithful to its underlying principles. On this understanding, reliance on contemporary meaning (really meaning mediated by historical tradition) was unavoidable, not desirable or undesirable, faithful or faithless.


What were the principles firmly grounded in original meaning that nearly sank the New Deal? Here are some examples: (1) no class legislation, meaning certain economic regulatory measures could not be enacted; (2) individuals and corporations had vested property rights that could not be violated absent compelling reasons; (3) legislation could not have redistribution of property as its primary object; (4) states retained sovereignty and were co-equals in the federal system; (5) the role of the federal government must be limited – “limited government.” You will notice that point #1 agrees with Jack’s interpretation of the fourteenth amendment. It’s true one version of the class legislation principle might disfavor laws that disadvantage a particular group like women. But it also disfavors laws that disadvantage employers, or, for that matter, give special regulatory advantages to any group. The class legislation principle is somewhat inconsistent with what we now call the “interest group state,” various regulatory schemes that both benefit (with subsidies) and burden (with regulations) all sorts of groups. In law school I thought that these principles were unjustified holdovers from the Lochner era, invented by the Court to hold back the regulatory tide. However, their pedigree in the thought of the founding generation as mediated by subsequent generations, is confirmed by substantial research by many historians. It’s true the 1787 framers had no expectations about industrial capitalism and labor unions. But they did adhere to important principles concerned with the rights of private property and the proper objects of limited government.

Why couldn’t there be amendments to alter these principles and the text they supported? This requires a long argument that I set forth in my 1996 book American Constitutionalism. I’ll confine myself to a few points. First, many New Dealers (including for awhile FDR) agreed at first that amendments were necessary. Most were aware that the New Deal was a departure from constitutional principles previously adhered to. But they found themselves up against serious practical difficulties. Agreement on language was hard to come by. Any amendments might be interpreted unfavorably by a hostile judiciary. The supermajority requirements of Article V were daunting when one looked at the political situation state by state. And so on. As people know, FDR eventually decided that the justices were the problem, not the Constitution. But for theories based in fidelity, what matters is what the best historical understanding shows about the meaning of text and principle in relation to the New Deal. And that understanding is basically inconsistent with the constitutionality of the New Deal.

So the New Deal had a fidelity/legitimacy problem that couldn’t be solved through amendments. How did they solve it? Bruce Ackerman says transformative opinions, de facto constitutional amendments. I put it this way – constitutional meaning was democratized. The people had a chance to agree with those loudly registering constitutional objections to the New Deal and they just didn’t see it that way – they approved it in multiple elections over decades. This is one reason the concern with fidelity strikes me as a bit late to the game. Fidelity would seem to require it to be easy to amend the Constitution through Article V. That way, it could be kept up to date. But it’s not easy, and there’s plenty of evidence it has only become more difficult as politics has changed and the institutional context has “thickened”, as political scientists like to say. To put it another way, the New Deal shows the limits of theories that try to understand questions of constitutional legitimacy in terms of legal fidelity. This twentieth century experience shows that what matters is legitimacy in a broad democratic sense. True enough, solving legal problems in a jerry-built political way can cause serious difficulties for legal and constitutional theory, maybe for constitutional law itself. But noticing this doesn’t make the practical problem go away.

You may think I’m ignoring the way the Court solved the problem in cases like Darby and Wickard. The Court used Marshall’s opinions in Gibbons and McCulloch to validate New Deal measures. First, notice a minor problem – the Court did not investigate original meaning, it assumed that Marshall got it right. But the real difficulty, as many historians have confirmed, is that the entirety of what Marshall said in these cases did not back up the reasoning of Justices Stone and Jackson. In addition, nothing that Marshall said repudiated the many other principles noted above that the New Deal violated. Don’t worry, I’m not about to urge you to follow Justice Thomas and Richard Epstein through the doors of the Cato Institute. Remember, from the standpoint of fidelity theory what matters is not what the Court said but whether they got it right. I wouldn’t say the Court propounded a myth – just engaged in some standard law-office history assisted by selective quotation. Nothing unusual about that, but also nothing that satisfies the criteria of theories that demand fidelity.

This analysis suggests that theories of fidelity have a hidden assumption – that the Constitution can be updated through amendment if original meaning, understood as text and principle, runs out. My theory of constitutional change starts by critically examining this assumption and finds it wanting. Hence my resistance to fidelity theories. What about the newly popular “out” of constitutional construction? I make short work of this idea in my forthcoming article “Rebooting Originalism” because if fidelity theorists are serious about adhering to that value, the outcome of a construction cannot violate original meaning. And because there were plenty of principles violated by the New Deal, construction can’t maneuver us around that particular fidelity problem.

So what is LC? If we factor out the versions that even Justices Sutherland and Rehnquist would have agreed to (such as amendments can change the document fundamentally and new circumstances will always generate new precedents), it is a practical response to a world in which constitutional stability is so highly valued that we don’t want to make amendments even when they are clearly called for. While I would not call for an endorsement of Posnerian pragmatism in adjudication, Sunstein is basically right to emphasize that in assessing originalist claims, a dose of consequentialism is appropriate. True, new originalists have emphasized that they don’t want to overthrow the current order, just replace the planks as the ship needs repair. But the consequentialist point is not so much a refutation of proposed radical change as it is a reminder that the hard-won lessons of constitutionalism in the twentieth century show that fidelity and rule of law values are not the only values in play.

By the way, and just to make this post a bit longer, I’m happy to sign up for an effort to make Article V amendment easier and so restore a certain balance to a situation where, in effect, an enormous amount of constitutional change has been forced off-text. But such ideas are not popular. It’s possible we are paying a price for our devotion to stability. There may in fact be a few examples of policies that are running into trouble because of persistent constitutional objections. The chief example I have in mind are environmental laws, especially those that relate to preservation of natural resources like endangered species. As noted by Richard Lazarus in a recent book, there is mounting evidence that the Court’s standing and commerce clause decisions hostile to environmental regulation are, in effect, properly hostile – that is, the Constitution really does not underwrite the sort of regulations that environmentalists think desirable. The problem is that environmentalists are really not interested in regulating commerce (or even the effects of commerce), but, well, doing something that promotes the environment per se. This may be a good example of how the de facto moratorium on amendments is hurting policy.

Comments:

"I do agree strongly with the common LC argument that the Constitution is practically impossible to amend."

I think this claim isn't just mistaken, it stands reality on it's head: It's not that we have living constitutionalism because we can't amend the Constitution. We can't amend the Constitution because of living constitutionalism!

The willingness of the courts to 'change' the Constitution whenever Congress finds it constricting has deprived Congress of any reason for sending amendments to the states. THAT is why it's not being amended anymore. Not because it's too difficult.

Any argument for living constitutionalism based on a lack of amendments that doctrine itself caused is fatally flawed, almost on the same level as the classic boy who murdered his parents, and asked for mercy because he was an orphan.
 

" So the New Deal had a fidelity/legitimacy problem that couldn’t be solved through amendments. How did they solve it?"

No, they could have been solved by amendments, but the amendments couldn't have been ratified. This isn't a case of the amendment process being broken. Any amendment process contemplates the possibility that some changes will be rejected.
 

"[F]idelity and rule of law values are not the only values in play."

Depending on what you mean, I'm not sure this is consistent with taking an Article VI oath, which would make the Constitution binding even if departing from it might produce good consequences. As the ACLU ad with Cheney and the paper shredder says, "the Constitution is not a recommendation." Sure, fidelity to the Constitution is not the only thing that matters, but for people who take an Article VI oath, it is a side constraint.

"...versions that even Justice[] Sutherland ... would have agreed to..."

Hurray for "a degree of elasticity."
 

It seems to me that what you are really saying is that the new deal didn't have any constitutional legitimacy, but that's OK because constitutionalism itself is outdated and has been democratically rejected by the American people, even though we pay lip service to it.
 

Over the weekend, I read both of Balkin's articles in the latest issue of Constitutional Commentary. Actually, I just skimmed the first on "Abortion and Original Meaning." It confirmed my long-held belief that constitutional scholars would not be writng so extensively---some such as Professor Paulsen have devoted their entire careers to advancing this methodology---about originalism if it was not for Roe v. Wade. That case triggered Meese, Scalia, Thomas, Paulsen and so many other conservatives to resurrect a theory that will justify overruling Roe. Put another way, if Roe had not been written, we would not be talking ENDLESSLY about the many mutations of originalism today. For those of us living in the 21st centulry, it is SOOOOO tedious.

I read Balkin's second article---it's about 105 pages long---more closely, but as I did, I kept havng the most heretical thought: If Jack Balkin was Justice Jack Balkin sitting on the Supreme Court, would he use or apply his peculiar notion of "original meaning" to the cases that came before the court ?? Or, put another way, would his result be any different if he did or did not employ his brand of originalism? Let's face it: most any regular reader of this blog could predict with almost 90% accuaracy how Justice Balkin would decide the constitutional and statutory issues if he was on the Court. He would, I am happy to say, reach a liberal or progressive result.

Let's be frank about the constitution and the Court: it's a political document interpreted by a political court.

The case for originalism, includ-ing "original meaning" originalism is dismissed with prejudice.

dah
 

Also, to come in (sort of) on Brett's side here, there's a big difference between recognizing some play in the joints and using policy arguments (including some that might not have been accepted by the framers) to interpret the ambiguities and simply ignoring constitutional dictates.

In other words, one certainly could say, with respect to the Fourth Amendment, that plenty of things that wouldn't have been conceived by its authors are nonetheless now viewed as "searches" that trigger the provision's reasonableness restriction.

On the other hand, the problem with Wickard is that it basically reads the entire limitation on Congress' power-- i.e., that it extends ONLY to interstate commerce-- out of the Constitution.

The first type of "living constitutionalism" seems a lot more defensible than the second.
 

Re: title "Can Living Constitutionalism be Defended?" -- I think that a better title would be "can originalism be defended?"

Stephen Griffin said in opening post --
>>>>>> I do agree strongly with the common LC argument that the Constitution is practically impossible to amend. <<<<<

One of the problems is that there is often no agreement on the specifics of prospective constitutional amendments. For example, a lot of people would like to have an anti-abortion amendment but can't agree among themselves about what exceptions to include: Threats to the mother's life? Threats to the mother's health? Rape? Incest? 1st trimester abortions? 1st & 2nd trimester abortions? The courts at least have some flexibility in restricting abortion.

IMO there is a consensus that the "natural born" citizenship requirement for the presidency should be abolished by amendment, yet this requirement is still with us.

>>>>>>> And sometimes it is said that the effect of the Civil War was to repudiate the doctrines (ultimately founded on the principles of state sovereignty and constitution as compact) of nullification, interposition, and secession. <<<<<<

IMO the primary long-term effect of the Civil War was to create the greatest legend of American folklore. IMO other factors were far more important in the growth of federalism. New technologies for transportation and communication made the states more interrelated and interdependent. The federal income tax, a major foundation of federalism, did not even exist until 1913. Many people have a substantial amount of their retirement funds tied up in Social Security, a federal program. And so forth.

>>>>>> As noted by Richard Lazarus in a recent book, there is mounting evidence that the Court’s standing and commerce clause decisions hostile to environmental regulation are, in effect, properly hostile – that is, the Constitution really does not underwrite the sort of regulations that environmentalists think desirable. The problem is that environmentalists are really not interested in regulating commerce (or even the effects of commerce), but, well, doing something that promotes the environment per se. <<<<<<

When current Supreme Court CJ John Roberts was on the DC circuit appeals court, he opposed giving federal protection to an endangered species of toad because of commerce clause issues.
 

Has language ever been static?
Has there ever been a doctrine or document the meaning of which has remained unchanged over time?
Has the Bible ever been static? Has the Catholic Church ever been static. Can we hear and understand Mozart as he was in his lifetime? Bach? Shakespeare? The list goes on, and on, AND ON! The answer to all such examples is no. Run down every attempt in history to stop time; see what you end up with.
"Can Living Constitutionalism be Defended?"
Better, can the fact of it be denied?
It doesn't matter one way or the other what you want. First ask what is.
Can the meaning of a document become so twisted by rationalization that it becomes a parody of itself? Yes. Can debate become shallow? Yes. But the imposition of absolute meanings does not defend against intellectual sloppiness, it institutionalizes it.
This debate is stupid.
 

Yes indeed, the static is overwhelming. Perhaps there is no "holy grail" of constitutional interpretation, hermeneutically speaking.
 

"For example, a lot of people would like to have an anti-abortion amendment but can't agree among themselves about what exceptions to include: Threats to the mother's life? Threats to the mother's health? Rape? Incest? 1st trimester abortions? 1st & 2nd trimester abortions? The courts at least have some flexibility in restricting abortion."

THAT is an argument for oligarchy, it's equally applicable to ordinary legislation.
 

"Has the Bible ever been static? Has the Catholic Church ever been static. Can we hear and understand Mozart as he was in his lifetime? Bach? Shakespeare? The list goes on, and on, AND ON! The answer to all such examples is no."

And, purely by coincidence, none of your examples have processes for "amendment". So if they're going to change, it has to be by 'interpretation'.

Look, Steven's own argument is premised on the notion that amending the Constitution is, as a practical matter, impossible. And this is flatly wrong, in any meaningful sense: Look how many times it got amended in the first third of the 20th century; Article V hasn't changed since! Just because somebody choses not to do something anymore, doesn't mean it's impossible to do it.

He's using a rigged definition of impossible. It's as though I said that the marriage laws were illegitimate because it was flat out impossible for me to marry Angela Jolie. And glossed over the fact that I hadn't bothered to propose to her, because I knew she'd turn me down.

THAT is the sense in which passing amendments to legitimize the New Deal was impossible: The process was available, but FDR knew the states would refuse to ratify them.

Well, too bad. The states were ENTITLED to refuse to ratify them. Any amendment process presumes that some amendments are going to be rejected. Or else you're not dealing with a constitution any more.

And that's the real issue here: Living 'constitutionalists' don't like constitutions. They think the federal government ought to be empowered to do anything a transitory majority wants to do, and a constitution gets in the way of that.

But the Constitution is something of a civic icon in this country, you can't get far by saying we should get rid of it. So you have to pretend that you're just in favor of interpreting it differently.

That's the fundamental dishonesty that lies behind living constitutionalism. It' purports to be a way of effectuating a constitution, when it's really a way of dispensing with one.
 

The political perspective: There is no constitution, a people are poised to create a governmental structure and a body of laws. Their’s is a purely political perspective. Their only question is what the best form of government is. What are the best laws for their circumstances. Their criteria are ordinary notions like fairness and efficiency. To try to impose on such a people the attitudes and ideologies of anyone in the 18th century would be absurd. If the only questions you recognize are political questions, you will be frustrated by the entire debate about originalism, living constitutionalism, or constitutional interpretation in any guise. You will role your eyes and dismiss the debate as passee and pointless.
The constitutional perspective: Here the question is what the constitution means, what constraints does it create, can its meaning change, what does it mean for an interpretation or a construction to be of the constitution.... There is a relentless temptation to pretend that the only questions anyone can ask are political questions. Making the distinction between perspectives should keep us honest. If you believe, as a political matter, we should ignore the constitution, say so. You may have a good point, but stop pretending you are addressing a constitutional issue.
 

The political perspective: There is no constitution, a people are poised to create a governmental structure and a body of laws. Their’s is a purely political perspective. Their only question is what the best form of government is. What are the best laws for their circumstances. Their criteria are ordinary notions like fairness and efficiency. To try to impose on such a people the attitudes and ideologies of anyone in the 18th century would be absurd. If the only questions you recognize are political questions, you will be frustrated by the entire debate about originalism, living constitutionalism, or constitutional interpretation in any guise. You will role your eyes and dismiss the debate as passee and pointless.
The constitutional perspective: Here the question is what the constitution means, what constraints does it create, can its meaning change, what does it mean for an interpretation or a construction to be of the constitution.... There is a relentless temptation to pretend that the only questions anyone can ask are political questions. Making the distinction between perspectives should keep us honest. If you believe, as a political matter, we should ignore the constitution, say so. You may have a good point, but stop pretending you are addressing a constitutional issue.
 

The political perspective: There is no constitution, a people are poised to create a governmental structure and a body of laws. Their’s is a purely political perspective. Their only question is what the best form of government is. What are the best laws for their circumstances. Their criteria are ordinary notions like fairness and efficiency. To try to impose on such a people the attitudes and ideologies of anyone in the 18th century would be absurd. If the only questions you recognize are political questions, you will be frustrated by the entire debate about originalism, living constitutionalism, or constitutional interpretation in any guise. You will role your eyes and dismiss the debate as passee and pointless.
The constitutional perspective: Here the question is what the constitution means, what constraints does it create, can its meaning change, what does it mean for an interpretation or a construction to be of the constitution.... There is a relentless temptation to pretend that the only questions anyone can ask are political questions. Making the distinction between perspectives should keep us honest. If you believe, as a political matter, we should ignore the constitution, say so. You may have a good point, but stop pretending you are addressing a constitutional issue.
 

"That's the fundamental dishonesty that lies behind living constitutionalism."
Living constitutionalism is the law of the land in Canada. But you're still talking about law, and I'm talking about language. and one is a subcategory of the other. I'm tired of listening to people argue about the idea of law who have no understanding of nor interest in the facts of language.

If you want to argue that the constitution has been broken rather than stretched, go right ahead, but the general logic undergirding your argument as it stands is founded on a falsehood. Theology may have a long history of brilliant arguments based on mistranslations but the mistranslations are still there.

I'll put it another way with another text. Mozart wrote symphonies as notation and editorial comment on paper. Rules: "B flat" "A minor." Comments: "quietly" "slowly" "quickly" "quickly but not frenetically" "fast!" Even seeing notes mathematically people still argue over how to interpret what he wrote. Mathematicians may prize Bach but the same questions apply.

When does a performance of Mozart become something we no longer recognize as Mozart? That's something we fight over and always will. There is no Mozart without argument. There is no Platonic form of his music that we will ever know, just as there is no Platonic form of the constitution that we will ever have. Every argument on such issues is an argument over logic and sensibility, over rules and values. Values are politics, and the debate is a game, argued like two men playing chess or tennis. Chess and tennis have rules too, but rules of conduct, specifically ethical rather than moral ones [no rules pertaining to "truth": no one would argue over the Platonic nature of the rules for chess or basketball.]

The question before us is how we choose to define ourselves. The rules of conduct on the chessboard, the tennis court or the courtroom are a means to focus our attention. The game is always played by the living, in the present. Arguments either for or against a "dead hand," those of Libertarians or reactionary Catholics, miss the point.

The logic of rules and rule following is the same for athletic or intellectual competition: the foundations are man-made. The constitution is not there as a rule for us to follow but as a means to test ourselves, to be engaged with one another and to define ourselves in the present. Passivity before the constitution is immoral.

"Laws do not make communities, communities make laws."
My new tagliine. As obvious as everything else written above.
 

Brett said ( 6:57 AM ) --

>>>>>> "For example, a lot of people would like to have an anti-abortion amendment but can't agree among themselves about what exceptions to include: Threats to the mother's life? Threats to the mother's health? Rape? Incest? 1st trimester abortions? 1st & 2nd trimester abortions? The courts at least have some flexibility in restricting abortion."

THAT is an argument for oligarchy, it's equally applicable to ordinary legislation. <<<<<<

It is much easier to push through compromises in ordinary legislation than in constitutional amendments, because ordinary legislation needs much less support. Constitutional amendments need approval by two-thirds of both houses of Congress (or proposal by a constitutional convention called by at least two-thirds of the states) followed by ratification by three-fourths of the states.
 

Larry Fafarman suggested that a better title would have been “Can originalism be defended ?”

My mother was an English teacher and one of HM Inspectors of Schools and her invariable response to the question “Mummy, mummy, can I go out to play in the street?”, was “Yes, dear, you can, but you may not.

Yes, the doctrine of originalism can be defended, just as people can be found defending any other heresy. But whether this particular heresy ought to be defended is another matter.

Originalism is a theory of interpretation of constitutional texts which has achieved a measure of acceptance only in the United States of America.

As D. Ghirlandiao points out, Canada adopts the “living constitution” approach. In fact, so do all the other courts of the jurisdictions of the Anglo-Norman common law tradition.

The following passage is taken from the UK Privy Counsel decision in Reyes v. R (Belize) [2002] UKPC 11

“When (as here) an enacted law is said to be incompatible with a right protected by a constitution, the court’s duty remains one of interpretation. If there is an issue (as here there is not) about the meaning of the enacted law, the court must first resolve that issue. Having done so it must interpret the constitution to decide whether the enacted law is incompatible or not. Decided cases around the world have given valuable guidance on the proper approach of the courts to the task of constitutional interpretation: see, among many other cases, Weems v United States) (1909) 217 US 349 at 373; Trop v Dulles) (1958) 356 US 86 at 100-101; Minister of Home Affairs v Fisher) [1980] AC 319 at 328; Union of Campement Site Owners and Lessees v Government of Mauritius) [1984] MR 100 at 107; Attorney-General of The Gambia v Momodou Jobe) [1984] AC 689 at 700-701; R v Big M Drug Mart Ltd) [1985] 1 SCR 295 at 331; State v Zuma) 1995 (2) SA 642; State v Makwanyane ) 1995 (3) SA 391; Matadeen v Pointu) [1999] 1 AC 98 at 108. It is unnecessary to cite these authorities at length because the principles are clear. As in the case of any other instrument, the court must begin its task of constitutional interpretation by carefully considering the language used in the constitution. But it does not treat the language of the constitution as if it were found in a will or a deed or a charterparty. A generous and purposive interpretation is to be given to constitutional provisions protecting human rights. The court has no licence to read its own predilections and moral values into the constitution, but it is required to consider the substance of the fundamental right at issue and ensure contemporary protection of that right in the light of evolving standards of decency that mark the progress of a maturing society (see Trop v Dulles), above, at 101). In carrying out its task of constitutional interpretation the court is not concerned to evaluate and give effect to public opinion, for reasons given by Chaskalson P in State v Makwanyane), 1995 (3) SA 391, in para. 88:
“Public opinion may have some relevance to the enquiry, but in itself, it is no substitute for the duty vested in the Courts to interpret the Constitution and to uphold its provisions without fear or favour. If public opinion were to be decisive there would be no need for constitutional adjudication. The protection of rights could then be left to Parliament, which has a mandate from the public, and is answerable to the public for the way its mandate is exercised, but this would be a return to parliamentary sovereignty, and a retreat from the new legal order established by the 1993 Constitution. By the same token the issue of the constitutionality of capital punishment cannot be referred to a referendum, in which a majority view would prevail over the wishes of any minority. The very reason for establishing the new legal order, and for vesting the power of judicial review of all legislation in the courts, was to protect the rights of minorities and others who cannot protect their rights adequately through the democratic process. Those who are entitled to claim this protection include the social outcasts and marginalised people of our society.”

This passage may be taken to represent the present consensus in all the Anglo-Norman jurisdictions (except, hopefully temporarily, the USA) as to the proper approach of the Courts to the problem of deciding whether legislation is compatible or not with constitutional guarantees.

The next question of relevance is why and how “originalism” developed as a quasi-respectable doctrine in the USA alone. There can be no doubt that the theory is “novel” in the forensic sense of not having evolved in the secular judicial process but of having only been propounded recently.

In a 2006 article in the Fordham Law Review - 75 Fordham L. Rev. 545 - Robert Post and Reva Siegel point out to the political origins of originalism: “During the Reagan Presidency, however, "originalism" emerged as a new and powerful kind of constitutional politics in which claims about the sole legitimate method of interpreting the Constitution inspired conservative mobilization in both electoral politics and in the legal profession. In this form originalism has flourished ever since.” and to the continuing political impetus for it: ”While we each have elsewhere expressed doubts about originalism as a methodology, that is not our object in this essay. Our concern is to explore a different question. We ask how originalism has acquired the authority it now possesses. Our conclusion is that scholars who criticize originalism as a jurisprudence have failed to appreciate the true sources of originalism's influence. The current ascendancy of originalism does not reflect the analytic force of its jurisprudence, but instead depends upon its capacity to fuse aroused citizens, government officials, and judges into a dynamic and broad-based political movement..”

It can be argued that “originalism” only gained quasi respectability because Meese and others persuaded the extreme right foundations to fund posts in academia to promote their political agenda.

Any method of constitutional interpretation which is (i) novel and (ii) espoused only by one segment of the political spectrum ought to be suspect, the more so if its very methodology is questionable.

As Justice Brennan famously pointed out, “originalism” is “arrogance disguised as humility” and is in practice impossible to operate in an intellectually sound manner because of the difficulty in ascertaining though our eyes what the intent on the framers of the constitutional guarantees actually was and how they would have approached issues beyond their imagination (eg, does the right to bear arms encompass an individual right to keep laser guided anti-tank weapons in the garage).

In an article in the Melbourne University Law Review [2000] MULR 1, Justice Michael Kirby AC CMG, wrote:
“Do United States judges, unlike their Australian counterparts, when ascertaining the meaning of their Constitution, engage in a quaint ritual of ancestor worship? Are our American colleagues so mesmerised by the awe in which they hold the revolutionary founders of the republic who wrote their Constitution (Jefferson, Madison, Hamilton, etc) that they feel obliged to construe the text, 220 years later, by ascertaining the intentions of those great men at the time they wrote it, however inapt those intentions might be to contemporary circumstances? In brief, when a problem arises under the Constitution of the United States of America, is the judicial duty to consult the historical records to discover the original intentions of the founders? Is the task ‘rather like having a remote ancestor who came over on the Mayflower’ (akin in our case, perhaps, to the HMS Sirius) and asking him or her the meaning of a political document that governs the affairs of the nation in the space age? Are there any risks that this quaint American ritual will travel to the Antipodes and capture the imagination of Australia’s judges in the task of interpreting the Australian Constitution (‘Constitution’)?

These were some of the controversies about constitutional interpretation which were debated recently in Auckland, New Zealand, at a conference on constitutionalism. Scalia J of the Supreme Court of the United States and Binnie J of the Supreme Court of Canada gave different answers. The former is probably the ‘most eloquent expositor’of the modern theory of originalism. He believes that, of its nature, a written constitution has a fixed meaning which does not change with time and that such meaning of the text is the same as the words signified when the constitution was first adopted. Binnie J, recently appointed to the Supreme Court of Canada, was called upon to answer the criticisms implicitly directed by his United States colleague at the process of judicial elaboration of the Canadian Constitution and its Charter of Rights and Freedoms. It was in the context of defending the Canadian approach to that task, that Binnie J let slip the opinion (which he suggested was held by some Canadian judges) that the approach of their counterparts in the United States could only be explained by appreciating that Americans were engaged in a ritual of ancestor worship.”

Kirby J concluded: “In my opinion, a consistent application of the view that the Constitution was set free from its founders in 1901 is the rule that we should apply. That our Constitution belongs to succeeding generations of the Australian people. That it is bound to be read in changing ways as time passes and circumstances change. That it should be read so as to achieve the purposes of good government which the Constitution was designed to promote and secure. Our Constitution belongs to the 21st century, not to the 19th.”

For the common law world, the Brennan, Douglas, Blackmun approach is the orthodox approach and the Bork, Scalia, Thomas approach a heterodox novelty motivated by the political agenda of the US extreme right.

The advocates of originalism remind me of the fond mother of a new recruit watching her son at his passing out parade: "Look!", she observed, "They're all out of step except my Johnny!"
 

Yeah, so? If there isn't that level of support for a policy, it shouldn't end up constitutionalized. Living constitutionalism allows transient majorities, or even minorities with well placed judicial support, to effectively place their policy preferences beyond the reach of normal majorities to undo.

It stands the reasoning for requiring supermajorities for amending constitutions on it's head, by requiring you to have a supermajority to restore the constitutional status quo, rather than change it.
 

Brett: - But the whole point about constitutional interpretation is that it is NOT for the judiciary to invent new constitutional guarantees. The Judges are bound by the text and any amendments to it. The point at issue is how that binding text should be interpreted.

Read the Privy Council Judgment for the consensus common law approach. Then take an easy example: “cruel/unusual punishment”. At the time of enactment of the English Bill of Rights or the later US Bill of Rights judicial penalties such as the banding of a thief with a hot iron or flogging with the cat of nine tails were quite routinely applied. An originalist would therefore have to hold that such penalties are constitutional. A “contemporary standards of decency” interpretation leads to the conclusion that to impose such a penalty in this day and age would be unconstitutional. Scalia used the originalist approach to argue for the execution of a person who was unfortunate enough to be born with severe mental retardation. Does such an approach commend itself to you ? How about the “scold’s bridle” ?
 

FWIW, the High Court of Australia's usual approach, first explained in 1959, is a form of semi-originalism very like Balkin's fixed-meaning-changing-applications theory. They generally say that the connotation of constitutional language is fixed, but its denotation is not. Justice Kirby disagrees with the usual approach, though. See here at 576-79. Also, the U.S. Supreme Court explained a similar theory in 1926: "[W]hile the meaning of constitutional guaranties never varies, the scope of their application must expand or contract to meet the new and different conditions which are constantly coming within the field of their operation. In a changing world it is impossible that it should be otherwise. . . . [A] degree of elasticity is thus imparted, not to the meaning, but to the application of constitutional principles . . . ."
 

Mourad, we left anything that could be reasonably called "interpretation" behind back with Wickard. Today it's a bait and switch, defending living constitutionalism by reference to things like asking what "cruel and unusual" really means, and then using it to gut every limit on Congressional power actually found in the Constitution.
 

"Yeah, so? If there isn't that level of support for a policy, it shouldn't end up constitutionalized."

The end of segregation?
It's not good social policy to rely of judicial review. It's divisive. But sometimes its necessary. In the middle of the last century the political elite, made some important choices. These days the elite lags behind the popular will, and popular culture, at the same time as judicial review is being questioned again. Things see-saw back and forth, as ever. Ideas become idees fixe, brittle with overuse. The people who rely on them are usually the last to know.
Originalism, Law and Economics, Welfare liberalism (the conflation of regulation and pity with concern) and the scholasticism of legal philosophy aren't used as tools but as crutches, to avoid the work of walking two feet. Post-war rationalism is the attempt to find machines to do the work of people. That's the logic, the "deep structure" to all this crap: History is bunk. Determinism for thee but not for me. The academy is the last hold out of the modern program, fighting against what it sees as the last of the reactionary peasantry.

Clinton. Obama, Rawls and Chomsky are as much products of their times and of their cultures as Thomas, Scalia, David Addington or Nixon. That's the foundation. That's the beginning of the discussion. History looks back and sees people struggling with change and instability, and people lying about it to themselves and anyone who will listen.
Like I said, this debate is stupid.
 

The end of segregation? I'm not going to say there were no dubious elements concerning the way they got ratified, but the Civil war amendments ARE part of the Constitution. The end of segregation was more a matter of the Court finally enforcing existing constitutional text, than making things up.
 

Several months ago, a "guest blogger" appeared on "Balkinization" and made a devastating critique of originalism. I am embarassed to admit that I have forgotten her name. But the point she made was irrefuttable.

She did not argue so much with the merits of the original meanng or intent schools of thought. Rather she was personally and professionally repelled by originalsim (and here I simplify). Originalism requires the judge or the lawyer or other interpreter to research the historical record, whether it be the 1780s or the era of the Reconstruction Amendments (even Balkin, J., requires this).

But those records are devoid of people like her---women---because they had few rights in that time; and others she looks for are equally absent---African Americans had no rights and were barred in many states from even learning how to read and write at the time of the ratification of the constitution, while Native Americans were viewed as savages. It's a historical record of discrimination, denial, exclusion---of shame.

It is not easy for one to accept, endorse, and employ a method of constitutional interpretation that relies so much on research into historical eras in which women and African and Native Americans had few or no rights and were excluded from government. I haven't seen too many female orignalists appeqaring on "Balkinization," and the reason may be that they just aren't interested in spending their careers investigatng, for them, such a dismal historical record.

Let's finaly put originalism in its proper place: judges use many tools when they interpret the constitution, and original intent/meaning/practices and customs is one such tool, but it is a very small and minor one. Really small.

dah

PS: apologies to that "guest blogger" for mangling her critique, but I hope you reappear one day soon.
 

dah--I think you're thinking of Malla Pollack.
 

Might Sullivan v. NYTimes be considered an example of living constitutionalism? If so, consider the protection it provides originalists (as well as others) who say nasty, nasty things about others that but for Sullivan might constitute actionable defamation, including (in particular) via the Internet.
 

This comment has been removed by the author.
 

One of the effects of various New Deal and civil rights legislation was the thinning of the wall separating public and private life and the increasing dominance of a single and public measure of man: the measure of economics. This is where social and free market liberalism side against the "conservative" socialist left and the old right.
None of this had to be articulated or even understood at the time for it to be seen by us in retrospect as obvious.
We could ask even more bluntly if David Addington's understanding of the Constitutional separation of powers is wrong in the sense that one plus one doesn't equal three, or if mathematics and physics allow for Stare Decisis.

Again the question is not whether the constitution is "living" any more than it is whether language is current. We don't live in the past and we shouldn't pretend to. But we should look to the past to understand the present. Putting history before theory would seem the wise choice.
 

There is a curiously fetishist attitude to the immutability of written constitutions which verges on the absurd.

In the state where I live (Hessen, Germany) Article 21 allows for the possibility of the death penalty, while the Federal Constitution (Grundgesetz) states clearly (Art. 102) that the death penalty has been abolished. In the event of a conflict, the Federal text always wins out over the State text. Why isn't the latter simply cancelled ?

The State Constitution of Hessen states unequivocally (Art. 49) that university education will be free of charge (unentgeltlich). The State government imposed fees at the beginning of the current academic year. They have clearly violated the constitution, and there is some ponderous court case proceeding (at whose expense I do not know, but probably that of the taxpayer) when it is as clear as the beard of Karl Marx that this is constitutionally not permissible. Apart from a good deal of tedious rumination from overpaid functionaries, what, I wonder, will come of it all ?
A. Alcock
 

dah said (8:20 PM) --

>>>>> It is not easy for one to accept, endorse, and employ a method of constitutional interpretation that relies so much on research into historical eras in which women and African and Native Americans had few or no rights and were excluded from government. <<<<<<

Accepting, endorsing, and employing originalism has been easy for Clarence Thomas, the only African-American justice on the Supreme Court. He is one of only two originalists on the court -- the other is Antonin Scalia.

Automatically rejecting the Founders' principles is as bad as automatically accepting those principles as controlling.

Chris said,
>>>>>dah -- I think you're thinking of Malla Pollack.<<<<<<

She is obviously very prejudiced -- for example, she said,
Originalism has the same emphatic symbolism of hatred as flying the Confederate Flag over a court house.
 

coming to this conversation fairly late..

I would rephrase it: Can LC be refuted?

Why ever would we want to? And even if it could be done, we would have to reject the project as nonsensical.

The Framers were LC'ers, were they not?

Suppose the Framers made a National Hammer and left it with the instructions:

USE ONLY WITH 18TH CENTURY SQUARE HEAD PEGS TO BUILD STRUCTURES OF THE TYPE CURRENT AT TIME OF HAMMER MANUFACTURE

Well, they wouldn't leave such instructions and being rational men wouldn't put such constraints on the way the Constitution was to be used by succeeding generations.

LC is only the common-sense to realize the Framers had common-sense.
 

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