Two days ago, I argued—and only somewhat provocatively—that the notion of a “living Constitution” must be dead and forgotten, for all the press it gets anymore. While you can find an article a day singing the praises of “originalism” or “strict construction”—interpretive theories that privilege the wishes of the framers over the preferences of contemporary judges—there isn’t really anyone out there telling the other side of the story: that a flexible, evolving Constitution might be necessary and appropriate.
I wondered if it was a problem of language or confidence or conviction. Having read through literally hundreds of almost universally thoughtful and intelligent e-mails, I want to change my position: The living Constitution isn’t dead. It just needs a better agent.
The feedback didn’t always answer directly why the idea of a living Constitution has been left on the dusty roadside of the progressive movement. Most readers chose to answer the more normative question: Should the Constitution evolve or stay fixed? And overwhelmingly, you argued that the Constitution is obviously alive because it must be—how else to explain the civil rights amendments or Brown v. Board of Education? Many readers ask why originalists don’t come out and claim that Brown was wrongly decided. As my fellow countryman Kenneth Jerrett pithily observes: “We do not insist that our medicine, our technology, or even our entertainment, all remain in an obsolete state; why would we demand that the law be given such treatment? It seems absurd to suggest that we can change the speed limit to reflect improved technology but we cannot interpret the constitution to reflect improvements in society.”
Your mail offered a wealth of defenses for the doctrine, by any name. Lawyers and nonlawyers overwhelmingly argued that the Constitution is alive and here’s why:
It’s Alive Because I Can See it Breathing!
Many, many of you observed that the Constitution is alive simply because our laws have changed: “To believe otherwise, is to believe that African-Americans still count as only 3/5ths of a person,” says David Berestka. The very fact that it’s been amended at all proves it’s alive, observes Patrick Vail. (Although several others write in to suggest that it should only be “alive” to the extent that it may be amended in the first place.)
It’s Alive: It’s Just Sleeping
So says Greg Hafer: “No, the living Constitution is not dead. It might be taking a nap while the current (but temporary) political environment demonstrates hostility, but, as political climates change over time, it will likely get out of bed again. Just like people do, living documents need time to rest and recuperate after extended periods of activity.”
It’s Alive: It’s Just Entered the Witness Protection Program
Several readers suggest that just as liberals are now “progressives,” the living Constitution is now simply called something else. Mostly for its own protection. Earl Pollock points to Justice Stephen Breyer’s new term—”active liberty.” James Haugh offers his term: “creative judicial legislation.” Notes Joe Mueller: “The Supreme Court’s recent decisions show the Constitution is very much ‘alive’—even if the Court does not expressly state this. Decisions like Lawrence v. Texas cannot be reconciled with an originalist understanding of the Constitution. It matters not whether the Court prefaces its holdings by explicitly endorsing a Living Constitution theory—the key point is that the holdings themselves depend on the Constitution being alive.”
It’s So Alive We Needn’t Even Defend It
Notes Stephen M. Griffin: “The idea of the living Constitution is not only alive and well but perceived as just a matter of common sense. So conservatives are indeed going uphill here.” And reader Art Gambill contends “that engaging in this debate is to give the Right its victory, hands down.”
It’s Alive: It’s Just Kind of Indefensible
Reader Mitchell Park says that the living Constitution theory cannot be persuasively explained because, “The originalist can point to ratification as giving social consensus for the text of the Constitution, but the non-interpretivist, unless she is an unlikely adherent to natural law theory, cannot easily explain to the public where ‘new’ rights are coming from.” Matt Barr goes one further and says it’s essentially indefensible: “No one steps to the plate for the ‘living Constitution’ concept because the clearest, simplest, most obvious from the text defense of the concept isn’t what they mean. And what they do mean requires them to explain how it is that the Constitution says something that the Constitution doesn’t say. And that makes for some dicey moments.” Andrew McLennan asks that we try to articulate an actual principle for the sometimes untethered decisions we make: “Much as I think that Griswold vs. Connecticut was very much the right decision, all the poking around in the penumbras is really pretty embarrassing. In order to make sense, a living Constitution view has to admit at some level that there are occasions (possibly quite rare, and to be approached with great caution) when the Supreme Court should root its decisions in its own views about policy. I’ve never seen an articulation of living Constitution jurisprudence that proudly announces a clear standard for when that is appropriate, or decisions that are forthright about it.”
The Framers Thought It Was Alive
A nice point, made frequently in the Fray and summarized nicely here by Michael Liroff: “The most obvious criticism of originalism and defense of a ‘Living’ Constitution is the position that the original intent of the Founding Fathers was that the Constitution be ‘living.’ “
If It Were Truly Dead We’d Need No Judges
Readers made this point over and over, but here’s Stephen Spear: “If there is one and only one ‘correct’ interpretation of when a law is constitutional, then there’s really no need for a court to engage in constitutional review.”If It’s Dead, I Don’t Recall Signing It
John Ehrenfeld muses: “One aspect of this ‘controversy’ that I rarely hear mentioned is that we the people living today never signed onto this Constitution. We inherited it at birth.”
Brennan Lives, Too
A thought about the need for sometimes extreme meddling by the court by Ted Niblock: “I don’t know how many times I have had to remind people that we didn’t make this stuff up to annoy Justice Scalia, people were getting lynched for trying to vote! Minorities and women (who were discriminated against even while hovering at around half the population) were being systematically kept from the key freedoms and liberties that the Constitution was designed to protect, and no other part of the system was going to change that.”
Several readers draw a parallel between a Constitution etched in stone, and a Bible etched in stone. Christopher Schaeffer asks: “Do you hear the echo of a religious debate in this conversation? Is the Bible the un-interpretable, literal Word of God, or is it part of a tradition of revelation that requires us to think again in every age about what things like ‘Honor thy Mother and Father’ really mean?” Says Russell Simon: “If we were to outlaw usury, as the Bible suggests, the world economy would immediately collapse.”
The Third Way
Many of you agreed that the fundamental problem here is the uncompromising rhetoric on both sides. A suggestion from Dan Deacon: “It is probably true that the Brennan view, in its pure form, shows an unacceptable hubris. A completely untethered judiciary, throwing aside legislative enactments and enacting its own views, is something to be scorned. At the same time, however, originalism fails in many important ways, not the least of which is its failure to ground some of our most deeply held beliefs about the Constitution. Liberals are right to shy away from the extremes of the ‘living Constitution,’ but they are wrong to subsequently join the push for originalism. What is needed is an integrated approach to judging, one that takes into account text, common-sense beliefs about political morality, legal history, social science data, and other tools as appropriate. Judging should be viewed as what it is, namely, a mix of creation and interpretation, integration and imagination.”
The New Agent
Not too many of you had suggestions for how to respond to the assault from the right. Jonathan Stein, citing Larry Kramer, suggests that “The Left should respond by insisting that the court is not creating rights, but simply protecting rights that society as a whole has created.” And Brian Gygi: “How to sell a living constitution to Mister and Mrs. J. A. Citizen? Just show them a set of medical procedures (or really almost any document) from 1789 and ask them if they would like to still live under those rules, or ones that maybe, just maybe changed with the times.”
To be sure, some of the staunchest defenders of the term “living Constitution” are not huge fans. Here’s Bruce Allardice: “The ‘living Constitution,’ precisely because it has nothing to do with the actual Constitution, gives judges a virtual blank check to legislate. That is power. Raw power. Incredible power. Of course judges will be tempted to use, and abuse, that power. Who wouldn’t?” And a few of you rejected the distinction I made between activist judges and adherents of a living Constitution. So, let’s hear it from the right side of the spectrum now: Why should we unplug the Constitution? Go beyond the crazy monkey judges and answer the questions posited above: Do you think Brown v. Board was wrongly decided? Which framers—and which ideas of which framers—are we supposed to be enshrining here? What role is left for judges under this regime?
Your answers coming soon.
Readers’ names will be used unless they specify otherwise.