Alive and Kicking

Why no one truly believes in a dead Constitution.

We are all living constitutionalists now. But only some of us are willing to admit it.

The notion of a Constitution that evolves in response to changing conditions didn’t start with the Warren Court of the 1960s; it began at the founding itself. The framers expected that their language, not their intentions, would control future generations. They created, in John Marshall’s words, a “constitution, intended to endure for ages to come, and consequently, to be adapted to the various crises of human affairs.”

The specific metaphor of a living, evolving Constitution arose in the 1920s to explain how a broad view of federal power that came with World War I (and later, the New Deal) was consistent with the American constitutional tradition. The Constitution’s words, Justice Oliver Wendell Holmes Jr. wrote in 1920, “called into life a being” whose “development … could not have been foreseen completely by the most gifted of its begetters.” Hence we must interpret our Constitution “in the light of our whole experience and not merely in that of what was said a hundred years ago.”

Holmes was right: The living Constitution is central to the American constitutional tradition, so central that even its loudest critics actually believe in it. Many Americans fail to realize how much of our current law and institutions are inconsistent with the original expectations of the founding generation. A host of federal laws securing the environment, protecting workers and consumers—even central aspects of Social Security—go beyond the original understanding of federal power, not to mention most federal civil rights laws that protect women, racial and religious minorities, and the disabled from private discrimination. Independent federal agencies like the Federal Reserve Board, the Federal Trade Commission, and the Federal Communications Commission would all be unconstitutional under the original understanding of the Constitution. Presidential authority would be vastly curtailed—including all the powers that the Bush administration regularly touts. Indeed, most of the Bush administration’s policy goals—from No Child Left Behind to national tort reform—would be beyond federal power.

Conversely, a vast number of civil-liberties guarantees we now expect from our Constitution have no basis in the original understanding. If you reject the living Constitution, you also reject constitutional guarantees of equality for women, not to mention Brown v. Board of Education and Loving v. Virginia, which struck down laws banning interracial marriage. Liberals and conservatives alike would be discomfited. The original understanding cannot explain why the Constitution would limit race-conscious affirmative action by the federal government, nor does it justify the current scope of executive power.

Even the Supreme Court’s two professed originalists, Justices Antonin Scalia and Clarence Thomas, believe in the living Constitution. Scalia’s concurrence in Raich v. Ashcroft—this term’s medicinal-marijuana case—demonstrates that he long ago signed on to the idea of a flexible and broad national power that came with the New Deal. And Thomas argues for First Amendment protections far broader in scope than the framers would have dreamed of. Both Justices joined the majority in Bush v. Gore, which relied on Warren Court precedents securing voting rights under the 14th Amendment. There was just one tiny originalist problem with that logic: The framers and ratifiers of the 14th Amendment didn’t think it applied to voting.

Nobody, and I mean nobody, whether Democrat or Republican, really wants to live under the Constitution according to the original understanding once they truly understand what that entails. Calls for a return to the framers’ understandings are a political slogan, not a serious theory of constitutional decision-making.

In fact, the contemporary movement for originalism began as a conservative political slogan used to attack the Warren Court’s decisions on race and criminal procedure. It mutated from a concern with the original intentions of the framers, to the intentions of the ratifiers, to how the public would have understood and applied the Constitution’s words at the time they were adopted.

Today’s originalism is hauled out to attack decisions that judges and politicians don’t like. But when it comes to decisions they do like, or would be embarrassed to disavow, the same judges and politicians quickly change the subject. In practice contemporary originalists pick and choose when they will demand fidelity to original understanding. Sometimes they even mangle the history to get to results they like.

Originalists make two standard objections to the idea of a living Constitution. The first is that fidelity to law and a written Constitution requires fidelity to the original understanding. Anything else is not legal interpretation and is per se illegitimate. But a vast number of existing statutes and constitutional doctrines are inconsistent with the original understanding. Why are any of them law?

Some originalists argue that we should respect non-originalist precedents only if lots of people have relied on them. This doesn’t explain why those precedents are legitimate interpretations according to the theory; indeed, it suggests that legitimacy comes from public acceptance of the Supreme Court’s decisions, not from fidelity to original understanding. Moreover, this strategy allows originalists to pick and choose which rulings to keep, based on their judgments of when reliance is real or justified. So, strict scrutiny for federal affirmative action stays, but the right of privacy goes. We’ll keep presidential power on steroids, thank you, but jettison the Endangered Species Act.

But there’s a more important problem here: Non-originalist decisions that guarantee race and sex equality, that protect free speech and the rights of criminal defendants, and that give Congress power to protect the environment and secure equal civil rights are not unfortunate errors that we are just stuck with because of “reliance.” They are some of our country’s proudest achievements. There’s something deeply wrong with a theory of constitutional interpretation that treats some of the key civil rights decisions of the 20th century as mistakes that we are stuck with. For if decisions like Brown, Loving, Craig v. Boren, and Griswold v. Connecticut are mistakes, we should read them as narrowly as possible and overturn them at the first opportunity. But that’s not how Americans regard these decisions. They are evidence of our gradual progress as a nation. They are what make us a country conceived in liberty and dedicated to the proposition that all people are created equal.

The great irony is that living constitutionalism rests on much firmer jurisprudential foundations. Originalists are right that the Constitution is binding law, but they confuse the constitutional text—which is binding—with original understanding and original intentions, which are not. A living Constitution requires that judges faithfully apply the constitutional text, given the meanings the words had when they were first enacted, applying those words to today’s circumstances. Original meaning does not mean original expected application. For example, the Constitution bans cruel and unusual punishments. But the application of the concepts of “cruel and unusual” must be that of our own day, not 1791. Living constitutionalists draw upon precedent, structure, and the country’s history to flesh out the meaning of the text. They properly regard all of these as legitimate sources of interpretation. In fact, most people who call themselves originalists agree; even they don’t regard original understanding as controlling in all cases.

Because the basic jurisprudential claim that original understanding is the only legitimate method of interpretation is overstated, originalists usually make a second, more pragmatic argument: A living Constitution offers insufficient constraints on judicial power. The irony of this charge is that in practice originalism doesn’t provide any greater constraint. As we’ve seen, originalist judges pick and choose when to invoke original understanding and when to rely on existing precedents they like. Justices Scalia and Thomas, for example, haven’t acknowledged in their opinions that the Congress that passed the 14th Amendment also engaged in affirmative action for blacks; both have pushed hard for ever-greater protection of commercial speech without any evidence of the original understandings of 1791. If we want examples of judges just making stuff up to satisfy their personal predilections, so-called originalist judges offer plenty of examples.

Originalists are right: Constraining judges is important. But originalists are looking in the wrong place. Lower courts are strongly constrained by previous precedent. Constraints on the Supreme Court come from two sources—the professional legal culture and constitutional structure.

Legal culture demands that arguments depend on the familiar categories of text, history, precedent, and structure. These modalities allow considerable leeway, but they also genuinely constrain. Even though the Supreme Court chooses the most controversial cases, many, if not most, of its decisions are unanimous or include both liberals and conservatives in the majority.

The second, and more important, background constraint on the Supreme Court comes from the constitutional structures of American government. Because the court is a multimember body, centrist judges in each generation, like Lewis Powell or Sandra Day O’Connor, determine the path of doctrine, especially in the most controversial areas. In addition, new Supreme Court appointments tend to respond to the vector sum of the political forces at play at the time of confirmation. In fact, political scientists have shown repeatedly that the Supreme Court never strays too far too long from the center of the national political coalition, and when it does, new appointments tend to push it back in line. The Supreme Court held out against Franklin Roosevelt’s New Deal for a few years but eventually gave in. The New Deal settlement, which Justice Scalia himself believes in, came from overwhelming public sentiment in the ‘20s and ‘30s that the Constitution had to be interpreted in light of the needs of the time; that ours was a living Constitution.

Since the nation began, critics of the Supreme Court have argued that judges are about to take over the country and rule by fiat. It hasn’t happened yet. What critics don’t recognize is this: Checks and balances built into the system guarantee that the court rarely opposes the national political coalition for long, and it usually cooperates with it. It’s a good bet that people who complain the loudest about the court being countermajoritarian represent at most a regional majority, not a national one. People in the political center usually get pretty much what they want.

And that brings us to the real secret of why we have a living Constitution. In the long run, the Supreme Court has helped secure greater protection for civil rights and civil liberties not because judges are smarter or nobler, but because the American people have demanded it. When social movements like the civil rights movement or the feminist movement convince the center of the country that their claims are just, the court usually comes around. Sometimes it gets ahead of the center of public opinion, and sometimes it’s a bit behind. But in the long run it reflects the national mood about the basic rights Americans believe they deserve. The great engine of constitutional evolution has not been judges who think they know better than the American people. It has been the evolving views of the American people themselves about what rights and liberties they regard as most important to them.

Rather than a set of shackles designed by long-dead slave-owners, the framers bequeathed to us a Constitution that could adapt to the needs and aspirations of each succeeding generation. Their faith in the possibilities of the future, and our enterprise in realizing that future, have made us the great and free nation we are today.