Friday, September 11, 2015

The Problematic Living Constitution

Stephen Griffin

After being on hiatus for APSA, I’m picking up where I left off in these posts on the new originalism and living constitutionalism.  The last post ended with the thought that there are important differences between theories of informal constitutional change and standard-form or conventional accounts of the living Constitution.  One of the key differences is that theories of constitutional change are thoroughly historicist.  This is not true of standard-form living constitutionalism.  Proponents of the living Constitution have been perhaps overly sensitive to the charge that it is not firmly rooted in the eighteenth century or the early republic.  They have often answered this charge by pointing to Chief Justice Marshall’s broad language in McCulloch.  This leads to a back and forth, with originalists pointing out that Marshall’s language was directed at describing the broad powers Congress has under Article I rather than supporting the idea, common to living constitutionalists, that the interpretation of the Constitution’s rights provisions can legitimately change with the times.  Moreover, it is unlikely that Marshall believed as a general matter that the meaning of the Constitution could change.  Rather, in common with the framers at the Federal Convention, he thought that its general principles would be adequate to cope with changing conditions – and the meaning of those principles would not change.

Why do I say unlikely?  Because the available evidence supports the idea that the framers were not historicists.  Originalists like Justice Scalia (in Reading Law) point out that no one in the founding period espoused any version of living constitutionalism.  But perhaps this should not be surprising.  Historicism itself was a later development.  Yet in my experience, this is a hard point to get across.  One of the best discussions I have seen is that provided by G. Edward White in his volume on the Marshall Court for the Holmes Devise series (there is also a key article by Philip Hamburger).  What was it like to reason in a world that did not accept historicism?  Two points seem salient.  First, history was thought of in terms of the continuous unfolding of fixed principles, rather than a result of human agency or contingency.  The Marshall Court, for example, thought of itself as the voice of the Law rather than being its (co)-authors.  Second, of particular relevance to conceptions of government, history was seen as a cycle (often a cycle of decline), rather than a journey into a future that would progressively not resemble the past (I am not using “progressive” in a normative or political sense).  And yes there is more than a resemblance between these non-historicist eighteenth century views and Scalia’s judicial philosophy.

So how did our legal culture change?  When did ideas of the living Constitution become prominent?

One of the leading scholarly treatments is still Howard Gillman’s brilliant 1997 article “The Collapse of Constitutional Originalism and the Rise of the Notion of the ‘Living Constitution’ in the Course of American State-Building” in Studies in American Political Development.  (I would also add John Compton’s more recent book The Evangelical Origins of the Living Constitution).  I have not seen Gillman’s article cited very often by originalists.  But it starts with the historical reality, presumably congenial to originalists, that the idea of the living Constitution was unknown to the framers and to most commentators in the nineteenth century.  The leading interpretive theory was some version of what is now called originalism (although I think it is a mistake to simply assume that contemporary versions of originalism are identical with these earlier versions).  On Gillman’s account, beginning in the late nineteenth century constitutional thinkers perceived a clash between the Constitution as interpreted by the Supreme Court and the developing administrative state (I’ll have to put to one side that the nature of the development of the administrative state is more contested now than when Gillman wrote).  According to Gillman: “The strongest evidence that constitutional originalism posed problems for the emergent twentieth-century central administrative state was that none of the pre-New Deal justices who argued for the accommodation of this state attempted to justify their positions in the language of original intent; they chose to make their case by developing an innovative theory of the living Constitution.”  Gillman has in mind leading figures like Justices Holmes, Brandeis, and Cardozo.  Compton’s book, which I strongly recommend, adds a cast advocating the living Constitution that includes familiar figures like Pound, Frankfurter, Corwin, T.R. Powell, Hale, Commons, Cohen, and Dewey.

All very well, but what impact does this “historicist turn” have on conventional versions of the living Constitution as well as the standard debate between this point of view and originalism?  Well, seismic!  The point is not simply that living constitutionalists can’t make a case that their perspective dates from the founding period.  It is rather that both points of view are engaged in anachronism – literally placing themselves “out of time” – to the extent it is assumed that they have existed unaltered since the eighteenth century.  If the living Constitution hails from the progressive period, contemporary versions of OPM originalism are relative newcomers to our constitutional tradition as well.  So there is a challenge here for contemporary originalism as well as for proponents of the living Constitution.  Both sides must come to grips with the reality that the emergence of the administrative-regulatory-welfare state, however one wants to term it, is the result of problems nineteenth century originalism couldn’t solve.  All schools of thought need to reproduce themselves over time in order to survive.  If they do, we speak meaningfully of “second-generation” law and economics or feminist legal theory and so on.  But nineteenth century originalism couldn’t effectively reproduce itself in new circumstances, so leading thinkers of the time turned elsewhere.  This created a discontinuity within American constitutionalism (an argument well developed by Gillman in his prize-winning book The Constitution Besieged).

The effect of the historicist turn is thus to highlight the discontinuities in the American constitutional tradition that have been there all along – discontinuities such as the Jeffersonian revolution of 1800, Jackson’s innovative presidency, the Civil War, Reconstruction, the adoption of an American empire – to name but a few besides the one everyone knows about, the 1937-41 New Deal revolution in constitutional law.  This focus on discontinuities creates the possibility of coming to grips, however painfully, with the possible contemporary relevance of the regressive racial views at the heart of Dred Scott and Plessy, instead of relegating them to the assumed discarded past of the “anti-canon.”

To develop the potential of the historicist turn, we need historicist theories of constitutional change.  As I will argue later, non-historicist interpretive theories are, well, historically implausible.  Theories of constitutional change highlight a problem that both contemporary versions of originalism and the living Constitution tend to assume away (or treat as a normative rather than historical challenge) – the problem of informal constitutional change, how to account for the reality that the Constitution has changed significantly and legitimately through means outside Article V.  Theories of constitutional change thus cross-cut conventional versions of both the living Constitution and originalism.  Unlike the living Constitution, these theories emphasize the inescapable reality of original baseline understandings not easily altered, whether through amendments or other means.  But unlike contemporary versions of originalism, these theories hold that constitutional change, even amounting to “amendment,” has occurred (on both empirical and normative grounds) and are legitimate outside Article V.  For now, I will describe some additional problems with conventional versions of living constitutionalism before I turn to the positive argument for theories of constitutional change.

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