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
Unoriginal Joke (Part III): Living Constitutionalism and Social Progress
In the lastPartof this series, I suggested that the essential nugget at the heart of “living constitutionalism” is the idea that part of what grounds the constitution’s authority for us is its capacity to adapt (i.e., to respond appropriately) to changing circumstances. I called this theadaptability claim.
Different versions of living constitutionalism fill out the adaptability claim in different ways, for different reasons.But in my view, one quite traditional version has not been given the attention its due, even though it is, to my mind, the one that most closely tracks the way the Supreme Court itself talks about and produces constitutional change.It also more closely ties the method of judicial reasoning it recommends to the phenomenon that seems to me to motivateallversions of living constitutionalism: social progress.
Despite its emphasis on progress, though, the view I describe is consistent with, and perhaps even requires, originalism (or at least one version of it).
How so? Well, let’s begin—outsidethe constitutional context—with the common law. The authority of the common law has long been justified by reference to something like the adaptability claim. The idea is that the law is authoritative because judges are able to revise, alter, and extend it in ways responsive to the facts they confront in new cases.
The method of reasoning envisioned is thus “bottom up,” rather than merely “top down.” It is inductive, rather than deductive. Judges need not always merely apply fixed rules to new facts; instead, they can let their pre-reflectiveintuitionsabout the proper outcome in any given case suggest a modification to, or revision of, the relevant “rule.” Hence Oliver Wendell Holmes’s famous statement that “it is the merit of the common law that it decides the case first and determines the principle afterwards.“
At the time of the founding (and well into the nineteenth century) the analogy to science that the term “inductive” suggests was taken quite seriously. The founderJames Wilsonwrote that “common law, like natural philosophy, when properly studied, is a science founded on experiment. The latter is improved and established by carefully and wisely attending to the phenomena of the material world; the former, by attending, in the same manner, to those of man and society.”
Why not then base constitutional adjudication on this model, so that it, too, may evolve like the common law? Of course, some have argued for doing precisely that. But there are two obvious, and related, objections to doing so today.
First, Wilson and others in his day thought judges were perceiving natural principles of “man and society” with a human faculty they called the “moral sense.” But today we tend to be more skeptical about the reliability, and even existence, of such a faculty. That is true both because people’s intuitions about just outcomes vary widely across society and because they seem to change dramatically over time.
Second, once we move to the constitutional context, it seems harder to justify authorizing courts to engage in judicial review of democratic legislation based on their “intuitions” about just outcomes. That’s especially true if those intuitions that vary widely. Besides, when interpreting the Constitution, courts are interpretingwritten law. Thus, it calls for “top down,” not “bottom up” reasoning.
This, of course, is precisely why originalists have traditionally rejected living constitutionalism.
One can see some of the main versions of living constitutionalism as ways of filling out the adaptability claim in ways that do not fall prey to these objections.
Some views offer a different rationale for the adaptability claim altogether.Under these views, the constitution must be amenable to change to ensure that it maintains its democratic legitimacy.Popular Constitutionalismand Bruce Ackerman’s theory of “constitutional moments” are examples of this approach. Since the Constitution was ratified over 200 years ago by a process that excluded women, African-Americans, and Native Americans, in order for the Constitution to maintain its legitimacy it must be capable of giving voice to more recent and more democratic expressions of popular will.
These views thus see living constitutionalism as less a claim about the content of law itself than one about who authors it. Thus, popular constitutionalists counsel judicial deference and responsiveness to public opinion, while Ackerman encourages judges to read certain texts (whether statutes or cases) that have been ratified by constitutional politics in the right sort of way.
Ronald Dworkin’s “moral reading” of the constitution is far closer to the traditional common-law theory. For Dworkin, the Constitution must be able to adapt through case-by-case adjudication to respond to changing conditions.It is thus “content-sensitive” (in philosophical jargon) in a way that the Wilsonian view is and Ackerman’s theory is not. Judges engage in “justificatory ascent” in order to properly discern those principles of political morality (embodied in the Constitution) that best “fit and justify” the relevant sources. Judges then apply those principles to the current case.
Dworkin’s approach seems vulnerable to the same skeptical worries that plague the Wilsonian view. Are moral principles part of the fixture of the world in the way that physical laws (allegedly) are? If not, why trust them? Dworkin’s answer to such questions is controversial, but the gist is that he dismisses such “meta-ethical” worries as “external” threats. Moral arguments can only be met by other moral arguments.
In my view, Balkin’sLiving Originalismcan be seen as an effort to combine these two approaches (and render them both consistent with originalism). Like Ackerman and the popular constitutionalists, Balkin treats the Constitution’s adaptability as important for reasons of democratic legitimacy—enabling it to respond to social movements and political mobilizations. Yet Balkin endorses a method of interpretation that is essentially Dworkinian (what Balkin calls the “method of text and principle”). I have somequestionsabout whether these approaches can be combined in this way, but I leave that issue aside.
What about David Strauss’s version ofLiving Constitutionalism?His approach is indeed an effort to explain and justify constitutional law on the common-law model. And he seems to gesture towards something like the Wilsonian view when he explains that the common law prizes the judicial attitudes of “humility and cautious empiricism.” But when it comes to describing how judges actually decide cases, Strauss’s picture sometimes seems to be a conventional, positivist one in which the precedents are mostly clear and, where they are not, courts simply resort to “things like fairness and social policy.”
It seems to me that Strauss’s account is on the right track. Perhaps he is reluctant to embrace the Wilsonian view for the reasons stated above. But in the remainder of this post I want to suggest that the Wilsonian view can be revised in a way that renders it both more plausible and more radical than typically recognized.
The general spirit of Wilson’s approach can be maintained, with some modification, in a way that is responsive to the objections raised above.Let me first explain and defend the kind of reasoning it involves in general (first objection). Then I will take up the question of whether it fits the constitutional context.
Recall that Wilson’s core idea is that when making practical decisions of the sort judges make, one may have intuitions about proper outcomes and that those intuitions are often reliable guides to decisionmaking. Like a scientist, the decision maker relies on experience, but it is experience in a wider sense—one that includes sensory perceptionandemotional or intuitive reactions.
It seems undeniable that most people have such moral reactions and that they pervasively rely on them in their personal lives.Moreover, theorists use them to develop moral and political theories, sometimes through a process of “reflective equilibrium” (a process that was itself first articulated to justify induction in the scientific realm). And they take those theories to becorrect.
At the same time, though, most of us recognize that our intuitive responses to phenomena are largely determined by our social environment, which may make us suspicious of them. The cause for suspicion is only heightened when we realize how much our own reactions and attitudes can change over time. If our intuitions aren’t trustworthy, then neither are the theories we base on them.
This produces a dilemma: We often are convinced that our own moral intuitions and theories properly pick out and evaluate the morally relevant facts. But we also know that our intuitions and theories would be otherwise were our social conditions different.
Dworkin offered one response to this dilemma. He considered it an illusion and the questions that give rise to it “bogus” ones. Our moral views do not depend for their standing on any quasi-perceptual faculty that could be distorted. They stand on their own feet. All we can do is to engage in first-order, moral argument with each other.
But there’s another approach. One could instead face the dilemma squarely and try to reconcile its two horns. To do so, one would infer from one’s substantive moral judgments that theprocesswhich led to your having those judgments was an epistemically healthy one. Perhaps it’s because you listened to people you’d never heard, read a book on some topic—or simply watched an 8:46 minute video of a brutal murder. Whatever the series of events, the process resulted in you “seeing” something in a different way—a clearer way. You’ve learned from experience.
When we make the judgment that some historical process has improved society-wide moral views about how to treat each other (or animals or the planet), we conclude that the process produced “progress.” That conclusion dependsin parton an historical judgment about the epistemic value of the process: We conclude that our current attitude is the product of free and open discussion, debate, and discovery of new facts, rather than something produced through intimidation, oppression, or mass hysteria.
Note that this method of reasoning does not assume social progress necessarily occurs with the passage of time.That would drain the concept of all meaning. Indeed, the opposite is true: It is precisely because progress cannotbe guaranteed that the kind of self-reflection envisioned is necessary. The task is to reconcile one’ssubstantivemoral convictions with one’s judgments about the nature of theprocessthat likely produced those convictions.
This may sound like a strange way to reason, but it’s quite familiar in other contexts. To confirm an experimental result, a scientist must ensure that it fits with her scientific theoryandthat the experiment was run correctly and not corrupted in some way. In weighing a witness’s testimony, the juror must assess the plausibility of the testimony itselfandthe sources of bias the other party’s lawyer identified on cross that could be distorting that testimony.
Does such reasoning have any role to play in constitutional adjudication? Some evidence that it does lies in the fact that it describes, better than most other forms of living constitutionalism, how the Supreme Court itself treats constitutional change.
The Court does not generally talk of “constitutional moments” or “ratifying elections.” It usually does not purport to be relying on its own “moral reading” of the constitution.It does not say, “the precedents aren’t clear, so look to fairness and policy.”
What it does do—at least in some areas—is talk about the need for constitutional doctrine to respond to changed circumstances—even when the change involved is one of the “understanding” or “perception” of the relevant facts.
Consider, in this light, the Court’s most explicit (and controversial) discussions of the nature of constitutional change inPlanned Parenthood v. Casey(1992). In defending its decision to upholdRoe, the Court explained that it did so on the ground that there had not been a change in the “understanding of the facts” related to abortion sinceRoein the way that there had been a change with respect to segregation betweenPlessyandBrown.
Implicit in the joint opinion’s analysis was the assumption not only that theBrownCourt interpreted the equal-protection clause correctly, but also that the change in the “understanding of the facts” was aprogressiveone. Society—and, therefore, the Court—hadlearnedfrom experience (which included the witnessing of what racist ideology had wrought in Germany).
SoPlessywas “wrong the day it was decided,” but it was wrong primarily because the Court had misunderstood thefacts(i.e., the social meaning of segregation), not the relevant constitutional principles. One day the same might be true ofRoe, the Court seemed to allow, but not yet—at least not in 1992.
In other words, the Court explained the Constitution’s ability to adapt to changing circumstances not by reference todemocratic legitimacy(as Ackerman and popular constitutionalists do), nor even by direct reference to the constitutional principles of political morality themselves. Instead, it explained the need to revise constitutional interpretations—or not to do so—by reference tosocial progress.
This view has both conservative and radical implications.It is conservative because the organic metaphor it trades off implies some degree of social consensus. There must be something approximating “society” that can “live” and adapt by responding to changed circumstances.After all, there is alwayspartof the society that has long understood the relevant facts all too well.
But it is also potentially radical because it looks to our history—ourwholehistory, not just the founding—with the recognition that history is always open to question, doubt, and reinterpretation. To quote a formerSupreme Court Justice, there are “no resolutions immune to rethinking when the significance of old facts may have changed in the changing world.”
Both aspects of this kind of living constitutionalism have been on full display in recent days. If there is ever a time that seems to be simultaneously demanding more societal unityandradical change in light of the significance of old facts, that time is now.
The approach I’ve just described is far from novel. Its roots lie in American pragmatism and in its subsequent development in the postwar legal-process school. The running theme throughout, which owes more to Dewey and James than to Holmes, is that society is always in transition, always in a state of “becoming”—and that any effort to understand what society is becoming requires an inquiry that is at once factual and evaluative, historical and moral, procedural and substantive.
As we’ve seen, though, the essential logic of the approach goes all the way back to the founding generation.
Which brings us back to originalism. Some have argued that the “official story” of our legal system has it that all our law must be traced back to the founding. The inductive approach I’ve just described has such a pedigree, as do the constitutional doctrines it has yielded. Those doctrines fit naturally with originalism because they are conceptualized as changing applications of constitutional principles in light of new facts—or newunderstandingsof facts.
We might even go further. It’s hard to make sense of the idea of “progress” or, for that matter, a “living constitution,” if we do not have some relative constant against which to compare it. Perhaps that constant is our “official story.”
If so, then we have a response to the objection I raised above but have so far ignored: What justifies judges in using this method of reasoning to engage in judicial review?
The answer: It is our law, and judges take an oath to support it.
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