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.