I've been thinking about
Dahlia Lithwick's challenge to adherents of the "living Constitution" to put up or shut up. So here goes.
Lithwick raises two separate but closely related questions: (1) whether there is anything principled to say in favor of the living Constitution, as opposed to originalism, and (2) if so, why don't adherents/proponents speak up in favor of it, more often.
The answer to the second question is, I think, much more straightforward than that to the first, so I'll start there. The "living Constitution" has become more of a shibboleth for the Right than an actual term adherents to the view actually use; indeed, with the exception of Justice Brennan, I'm not sure that the term has really been used that much by those on the Left or even by conservative adherents of the view. Without getting into theories of interpretation, I think it's safe to say that the term "living Constitution" covers a great number of particular theories, so proponents of particular approaches don't use a term that's broader than what they are pushing. Even if the Constitution continues to develop in meaning, how it develops is another question, and reasonable people can disagree on that. For example, just how democratic should we interpret the Constitution today? The Framers were not democrats, but republicans. And so on. Plus, my sense is that most people, including most judges, don't stick to a consistent theory or approach to questions of constitutional interpretation. Originalism might make sense to them in some areas, but in other areas, other theories--plain meaning, even some kind of "living" doctrinal development--make more sense, to most people, most of the time. For example, I think that arguing for an "original understanding" of the place of the administrative state in our system makes no sense at all, because there would be nothing to talk about. Does that mean that the administrative state is unconstitutional? Hmm. There might be some
constitution in exile types who would argue so, but even Justice Scalia doesn't go there.
So the reasons that there aren't ringing defenses of a "living Constitution" are (a) most of the view's alleged adherents hold views that they wouldn't describe in those terms (just as, for example, they wouldn't describe themselves as "soft on crime"); and (b) that most people don't worry themselves with a single, all-encompassing theory of constitutional (or statutory) interpretation. Instead, most people are something akin to what Rawls calls
intuitionists, meaning that, in this kind of reasoning, they tend to go with intuitions rather than fully fleshed out, articulated reasons.
Is there anything principled to say in favor of the "living Constitution"? Yes, but it will take me awhile to get there.
First, let me start by saying that the Constitution does not come with a set of second-order instructions on how we should interpret it. Indeed, all theories of constitutional interpretation are themselves
extra-constitutional. Some of the Framers, including James Madison, were reluctant to publish their notes on the convention debates because they didn't want their views to dominate later thinking on the meaning of the text. So, my first point is that
there's no reason, a priori, to privilege originalism.
With that said, however, we run smack into the counter-majoritarian difficulty. Most of the time, when we're talking about this stuff, we're talking about cases in which the Court strikes down laws that have either local/state or national majoritarian support. The question then is whether the Court is justified in doing so, based on the Constitution. The originalists' best argument is that, without the support of something in the Constitution itself, the Court cannot legitimately override majority wishes. If the Court cannot rely on something other than their own policy preferences to strike down these majoritarian laws, then the Court should defer to the systems of self-government recognized in the Constitution. (Note that I say "systems," because the states get to play by very different rules than the federal government, at least from an originalist understanding.) But then the originalists import an important assumption--they assume that the only thing "in the Constitution" that the Court could rely on would be the original meaning. In other words, they assume that the only thing that could be "in" the Constitution that would justify overriding majority wishes is something closely resembling "the will of the legislators," i.e., those who drafted and then ratified the Constitution.
But, again, nothing in the Constitution says this. Not in so many words, not even by allusion. Indeed, the power of the Court (and lower courts) to actually override laws is not found in the Constitution. All we get is that the courts get "the judicial power," an incredibly difficult term to define. (If you don't believe me, try to define it. And do so in a way that is consistent with the existence of Article I courts. But that's for another post.)
So, in short, originalism suffers from the problem that its key move is itself extra-constitutional. But that's not to say that the adherents of the dead-hand Constitution don't have a pretty good argument with the counter-majoritarian difficulty. (BTW, my conservative readers can throw in "judicial tyranny" for counter-majoritarian difficulty, if they like.)
Second, there is a case to be made that, if we are willing to grant judicial review, then the Constitution probably means more than it says on issues outside of Article III as well as more than it says in Article III. It seems to me that, if Article III means that the courts have the power to strike down unconstitutional laws, then other parts of the Constitution imply similar, additional limits on the majoritarian branches of government, beyond what's explicitly stated there.
How much more? I don't know. And neither did James Madison. Or John Marshall. Or Earl Warren.
Here we can bring the republican-democratic self-government theme back in. The Framers established a system of self-government. But in doing so, they made sure that the "self" that governs is not always a small-d democratic majority. Think the Electoral College and the Senate. Both are important institutions in the Madisonian design, but neither is majoritarian. No one would argue, though, that the Framers didn't intend for the winner of the Electoral College vote to be president, even if some other candidate won a majority of the popular vote. No one would argue that the laws enacted by the Senate are unconstitutional simply because they reflect the will of a minority of the population, at least part of the time.
Is the Supreme Court that different? It's not a democratic institution, but . . . the Framers didn't establish a small-d, democratic constitution. They created a republic (I'm not a Bircher, really), in which self-government by "the People" often involved decisions being made by small numbers of individuals who might not necessarily reflect majoritarian wishes.
Another way of saying this is that originalism errs in privileging small-d democratic decision-making over all other forms of decision-making, with the sole exception of clear constitutional prohibitions. The Constitution actually establishes a range of decision-making procedures, from those in which a minority can make decisions to those requiring a supermajority.
With that said, one could still object that nothing says that five justices on the Court are empowered to impose a different decision than a small-d democratic majority. Exactly.
If you want to go all the way, here, I think you have to throw out judicial review. If you want to keep judicial review, then you have to accept that there is more to the Constitution than what can be gleaned from its bare text.
Again, how much more? That depends on context and the Court's membership, which depends on the political process. That justices are nominated by the president and confirmed by the Senate guarantees that the Court never strays too far from the small-d democratic majority, for too long. For example, there's no doubting that the country moved to the Right following 1968. Thus, the Court moved to the Right, and the meaning of the Constitution moved to the Right, as well. Did it move
all the way back to a pre-Warren Court position? No. But it did move. The Court moved to the Left after 1937. Why? Because FDR won a second term, and then the Democrats managed to control the federal government into the 1950s. Did the Constitution move "all the way to the Left"? No. But its meaning shifted as the composition of the Court
and the issue environment shifted in a way that benefited liberal positions on the size and scope of government. Never forget that the growth of the administrative state happened roughly at the same constitutional moment as the growth of the national security state, largely because of the Second World War. If the Great Depression had not been followed by WWII, the American administrative state would be much smaller today.
So, in a nutshell, here's the principled argument for a "living Constitution." The Framers did not set up a government wholly sufficient for every eventuality. They couldn't do that. So, what they did was establish a self-governing system (containing within itself constituent self-governing systems) that could adapt to its surroundings based on a wide range of decision-making processes. One of those, it turns out, was judicial review, whether they knew that or not. As a self-governing system, the republic must be able to adapt to changing circumstances, and the Supreme Court, among other entities, has the power to make decisions based on those changed circumstances. This "living" is simply the process of adapting to changing circumstances, and nothing says that the Court is any different from other parts of the system.
Does that mean that the Court is always right? Of course not. But even if one disagrees with particular adaptations to changing circumstances, one's disagreements are with those particular adaptations and not with the ability and need to adapt, per se.
This is an over-long post. If I have time later, I'll write another post on why the dead-hand Constitution view is just silly.
