Sunday, August 30, 2015

The Living Constitution: A Reconsideration

Stephen Griffin

After a series of posts evaluating the new originalism, I’m moving on to assess conventional notions of the living Constitution.  Let’s begin with two vignettes.  Consider the comprehensive exchange between Robert Bennett and Lawrence Solum in Constitutional Originalism: A Debate (2011).  Solum’s exposition of the new originalism has to be one of the most clear-headed and well-argued defenses of any theoretical position I’ve ever read.  It’s a minor masterpiece that I would recommend to anyone.

But note that in response, Bennett does not actually defend living constitutionalism.  That is, Bennett deliberately offers no normative defense of the argumentative tradition known as the “living” Constitution.  From his point of view, living constitutionalism was inevitable at some point given the existence of judicial review and broader developments in American society.  However general this sounds, Bennett is clear enough that the living Constitution (somewhat paradoxically) is a matter of history – something that already has happened in the course of Supreme Court adjudication that (presumably) can’t be altered.  I think this is an important clue about how living constitutionalists tend to think and why sometimes there is a lack of meaningful exchange between the two positions.  And one of my fundamental points in this and the next set of posts is that the idea of the living Constitution should itself be understood historically, through the lens of historicism.

My second vignette is the contrast between the impact of Heller and Obergefell on constitutional theory.  There is little doubt that Justice Scalia’s majority opinion in Heller, which relied heavily on the theory of original public meaning (OPM), gave a huge boost to its credibility.  In my estimation, this should not be surprising because academic constitutional theory has always been a reactive enterprise – paying more attention to the Court than what is going on in related academic disciplines like history and political science.  So consider: will Obergefell similarly serve to boost the idea of the living Constitution?  Well, why not?  Just as much as Heller served as an endorsement of OPM, Justice Kennedy’s majority opinion in Obergefell is a symphony, a festival of living constitutionalism.  That is, it is an opinion based on the idea that interpretations of the meaning of “liberty” can legitimately change with the times, without a subsequent constitutional amendment or inquiry into the OPM of the fourteenth amendment.  Kennedy also endorses the more general argument that the framers of the Constitution deliberately “entrusted to future generations a charter protecting the right of all persons to enjoy liberty as we learn its meaning.”  Living constitutionalism is back!

Yet for all this fulsome endorsement, I doubt whether Obergefell will serve as a reference point for future debate in the same manner as Heller.  This is partly because living constitutionalism is not a “movement” for liberals in the same way originalism is part of a conservative movement.  But it is also because there is a sense in which Justice Kennedy’s arguments are unexceptionable, an accepted part of our mental furniture (well, some of us!).  Like Bennett’s nondefense of living constitutionalism, if you are on that side of Balkin’s coin, you don’t see anything to defend.  The living Constitution just is.

Here’s another way to look at the terrain that results from these vignettes.  Quick: what’s the leading theory of originalism?  It’s some version of OPM.  But what’s the answer for the living Constitution?  Certainly Bennett did not offer an answer.  The answer I will defend is that theories of (informal) constitutional change are the leading theories of the living Constitution.  At the same time, however, and without probing too deeply for now, many of these theories (including my own) have significant differences with standard-form living constitutionalism that are not widely appreciated.  Most popular accounts of the living Constitution stress its continuity with the American constitutional tradition, for example, saying it goes back at least to McCulloch.  But theories of constitutional change need not be based on such implausible and ahistorical premises.  Further, these theories do not necessarily advocate a unique method of constitutional interpretation.  They rather offer a developmental perspective on how the Constitution legitimately changes over time, particularly outside Article V.  They are designed to address the problem of informal constitutional change, one of the most serious historical and theoretical challenges for contemporary American constitutionalism.

For now, let’s stick with standard-form living constitutionalism.  I’ve realized only relatively recently that my position on constitutional change differs significantly from the conventional version.  In this and (mostly) the next post, I’ll develop the differences and offer some criticisms of the standard-form version.  First, as just suggested, conventional accounts of the living Constitution tend to veer away from a historicist approach when it comes to explaining the origins of this perspective.  To maintain continuity with the American constitutional tradition, advocates often claim implausibly that this perspective has been with us since the early republic.  Second, advocates are almost addicted to blunt-force overly broad “dead hand” arguments that prove too much (a criticism developed best by Jack in Living Originalism and on which I will only slightly try to improve in a future post).  Third, more controversially (because I haven’t seen this argument developed before), advocates appear to depend on what I will call the RoR (after H.L.A. Hart’s “rule of recognition”) fallacy, a move based in Hart’s theory that places emphasis on popular acceptance in the present as the touchstone on which the Constitution depends for its force as law.  This last point is a bit novel, so it will require a lot more explanation.

By contrast, painting with a very broad brush, developmental theories of constitutional change tend to be historicist, do not (or should not!) depend on dead hand arguments, and (more controversially) basically agree with originalists that the Constitution, especially when considered from an institutional perspective, creates binding legal obligations that transcend trends in popular opinion or acceptance.  It occurs to me that’s quite a lot to chew on, so I will save the development of the points in this and the preceding paragraph for the next post.  Then I’ll move to making a more positive case for developmental theories.

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