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
An Unoriginal Joke (Part II), or Why We are all Living Constitutionalists
In Part I of this post, I sought to explain the point of a joke tweet I had made in which I offered a theory of living constitutionalism as a satire.The point was to pose a question to the new generation of originalists. It asked, given how potentially capacious an understanding of originalism they defend, what’s at stake for them in defending it? Why does it matter to them to prove originalism true if its substance has become so diluted?
This Part puts the same question to the other side of the debate. The worry is that originalism has become so drained of substance that it’s no longer worth resisting. If Jack Balkincan be an originalist, why can’t we all?Is there any essential idea at the heart of living constitutionalism to which even a very ecumenical form of originalism fails to do justice?
I think the answer is both yes and no.I think that there is such an essential idea but that it’s one even originalists accept or should accept.Once we see why that is, it becomes possible to reframe the traditional debate in a way that, in my view, shows more clearly the question at the heart of what Larry Solum has called The Great Debate.
Let me begin with what I think is the essential idea of living constitutionalism, which we can derive from an only semi-fictionalized version of the dialectic that followed my satirical tweet, beginning with the joke version:
Living Constitutionalist: The Constitution has been interpreted by the Court in different ways at different times. It is thus a “living" document. Living Constitutionalism is our law and judges take an oath to support it.
Originalist Critic: But that makes no sense. That would be like saying that because the Constitution is short, we have a duty to short constitutions; hence, no amendments.
LC: But the difference is that it is an essential feature of the Constitution that it has been interpreted in different ways at different times.
OC: So was there no constitution before anyone interpreted it?
LC: Maybe not.But for the sake of argument, let’s say there was.Then we should say that it is an essential feature that the Constitution is the kind of thing that is amenable to different interpretations over time.
OC: But that still has no normative bite whatsoever. The changes could just be mistakes.
LC: Fine. It is an essential feature of the Constitution that it is the kind of thing that is amenable to different but proper interpretations over time—i.e., ones that allow it to respond appropriately to changing and, often unforeseen, social, economic, and political conditions.
OC: Sure, but originalists don’t disagree with any of that. For it does not imply that the meaning of the Constitution’s rules and principles change, only that the facts to which they apply may do so. The minor premise changes, not the major premise.The Founders used broad, general language for a reason. And where that language is vague, courts are empowered to go beyond “interpreting” the constitution and to begin “constructing” it.
LC: OK, but there’s one more thing.It is an essential feature of the Constitution that it is the kind of thing that is amenable to different but proper interpretations over time, and it is in virtue of that amenability to change that (at least in part) it compels our obedience to it as our fundamental law.
My suggestion is that this last, italicized phrase contains the essential nugget of living constitutionalism. In philosopher’s lingo, it amounts to the claim that the Constitution’s adaptability to changed circumstances—precisely its “living” quality—is what grounds (at least in part) its normative claim on us.I qualify it with “at least in part” because the Constitution (and its interpretations) must clearly satisfy some minimal threshold of moral adequacy in order to compel obligation. But the basic idea is to stress the moral significance of Constitution’s responsiveness to social, political, and economic change. Let’s call this claim the adaptability claim.
At first blush, the adaptability claim seems to be nearly the opposite of what originalists argue, which is that the Constitution’s current authority derives primarily from the continuity it establishes between the law today and the founding (though they, too, would likely acknowledge the need for some minimum moral threshold). Thus, the adaptability claim seems to be a meaningful claim and a genuine rival to originalism.
But it’s not hard to see that the adaptability claim just restates the traditional theory of the common law, according to which the law evolves through case-by-case adjudication.If that’s right, then even originalists are committed to the adaptability claim, for every time a judge decides a constitutional case (or refuses to do so) the Constitution has either adapted or failed to adapt.And who would deny that the Court should respond properly rather than improperly in such cases? Surely Chief Justice John Marshall had something like this idea in mind when he famously insisted that “we must never forget that it is a constitution we are expounding.”And that’s true even if the proper response was to rule the Bank of the United States unconstitutional.
We might say, then, that if originalism can be seen as a “theory of legal change,” then under this view, living originalism can be seen a “theory of judicial decisionmaking.”
Under this view, originalism and living constitutionalism are not symmetrical rivals.Rather, they stand in a relation to each other analogous to the one philosophers of science draw between the “context of justification” and the “context of discovery” when analyzing scientific practice.Whereas the former refers to the criteria scientists bring to bear to formally validate something as genuine knowledge, the latter refers to the process by which scientists actually grow knowledge by making discoveries.
So, too, in the legal domain.Even if the “deep structure” of our practice is to trace the pedigree of all the court’s rules and doctrines back to the founding, such structure is often only imposed on a legal action or decision after the fact.When judges are actually deciding cases, they must, among other things, identify custom, craft rules, and revise doctrines. Sometimes they may look to that full pedigree of a particular rule when doing so, but oftentimes not.
That doesn’t mean they are flying blind or just imposing their ideology.They rely on authority, invoke analogies, strive for balance or symmetry (just as scientists do!).But it does mean that, even under a highly formalist model of law like originalism, a gap may develop between theory and practice, between how legal change is formally ratified and how it actually proceeds. Nothing new there.
So maybe we are all originalists now. And we are all living constitutionalists now (and always have been).
On this reading, the central idea in originalism that living constitutionalists reject is the notion that the relationship between theory and practice is a one-way street.Rather, in their view, judicial methods of “discovery” ought properly inform, not just be reformed by, the criteria of formal justification.And the reason, again, is the adaptability claim—the Constitution must be able to adapt to justify our obedience to it, and that’s what courts do.
What living constitutionalists disagree with each other about is (1) why it matters that the Constitution be able to adapt and (2) what methods of “discovery” (if that’s even the right word) courts should bring to bear when figuring out how to enable it to do so.
In my view, the different answers to these questions matter, particularly in light of the protests across the nation right now. In the third and final installment of this Post, I will consider some different answers to those questions and will suggest that one in particular has not yet received the hearing it deserves.
To be continued.
Charles Barzun is the Horace W. Goldsmith Research Professor of Law at the University of Virginia. You can reach him by e-mail at cbarzun at law.virginia.edu