I may be opening a can of worms, but I think the conversation that will go on in the comments (between stalwarts Adam, Nephtuli and LWY – though, they would all be on the same side) would be interesting, so I am putting it out there.
Adam posed “[a] challenge: Noyam, I don’t think there is any intellectually honest justification for the so-called “living constitution” method of constitutional interpretation (and other similar methods by different names), except to call it what it is: Changing the rules in the middle of the game. I encourage you to try to convince me otherwise.”
Like I said, I think this will be ultimately fruitless, as this is one of those things that people just don’t change their opinion on. It’s too basic and core, so to speak, that people just won’t hear arguments to the contrary. Nevertheless, Adam asked, so I’ll oblige. You may agree or disagree, but I think the following is, at the very least, “intellectually honest.”
What follows (whole text here, samplings below) is one argument in favor of a living constitution. It was written on September 6, 1789, by Thomas Jefferson, in a letter to James Madison.
The question Whether one generation of men has a right to bind another, seems never to have been started either on this or our side of the water. Yet it is a question of such consequences as not only to merit decision, but place also, among the fundamental principles of every government.
Yup, that about sums up the question. Summing up the answer?
On similar ground it may be proved that no society can make a perpetual constitution, or even a perpetual law. The earth belongs always to the living generation. They may manage it then, and what proceeds from it, as they please, during their usufruct. They are masters too of their own persons, and consequently may govern them as they please. But persons and property make the sum of the objects of government. The constitution and the laws of their predecessors extinguished them, in their natural course, with those whose will gave them being.
Obviously, Thomas Jefferson goes into much greater detail. But that’s the basis of the argument. The framers have no right to bind me with their written law. Each succeeding generation, by accepting the Constitution, essentially renews it. And they renew it in the way that fits the country in their day, and with the understanding of the words and language in their day, not those of the defunct and dead framers (using a defunct and dead dialect of our language).
The Noy G Show 
Oy, where to begin.
Of course a constitution binds the next generation. That’s the whole point. But if there are certain parts of it that people don’t like, there’s always the amendment process.
The main problem with the “Living Constitution” is that it places enormous power in the hands of the judiciary. Until we start electing the member of the Judicial branch, I don’t want them to have so much power.
That’s the beauty of originalism- when applied properly, it acts as a limitation on judicial power.
Noyam, that’s what amendments are for. The Originalist position doesn’t preclude interpreting the Constitution in light of new issues that arise (i.e. abortion) it just aplies that way of thinking to the new issues. Also, you must admit that on some level the Constitution definitely does bind future generations. For example the Judiciary could not switch to a non-democratic government or allow a local government to violate someones protected rights – so it is binding on future generations. I believe what TJ was referring to was the right to amend the document.
“The framers have no right to bind me with their written law. Each succeeding generation, by accepting the Constitution, essentially renews it. ”
I’m not sure what process of renewal you are refering to. It is binding until it is amended. The Judiciary since Marbury decides how to apply it to a specific set of facts but the words are binding. I think even the more “activist” judges would agree that the document is binding, they just allow more slack for the judiciary to interpret.
I think this is a good argument, and I think it poses a bigger problem for Originalism than LWY realizes. The “Dead Hand of the Past” argument is probably the most often cited normative challenge to Originalism.
The problem with the “Living Constitution” argument, though, is that it presumes that no other normative basis for the Constitution exists besides for interpreting it according to contemporary moral norms. If someone could provide a legitimate moral reason why the Constitution should be binding, then Living Constitutionalism would lose its bite. But a number of originalists have provided that basis including libertarian Randy Barnett (the original meaning is most likely to lead to just outcomes), conservative Keith Whittington (the original meaning is dictated by popular sovereignty concerns), and uber-liberal Jack Balkin (we must abide by the Constitution because, although it started off imperfect it has moved in the right direction over the past 200 years).
But even if the Constitution should be reinterpreted by each generation, surely judges should not be making those decisions. If the validity of the Consitution in each generation is the moral correctness of its interpretation, why are judges most qualified to make those moral decisions? If constitution interpretation must be moral in nature, wouldn’t Congress (or any other elected branch) be best suited to make those interpretations? In what way are nine judges best suited to make those arguments?
LWY’s argument is also a strong challenge to Living Constitutionalism. Judges aren’t elected, so why should they be allowed to rule at all? If we believe that democracy is a moral preferable system of government, on what basis can the judges make any decision? It’s only because the Constitution is binding outside its interpretation that judges can interpret it at all. So there must be some normative basis for the Constitution before the judges get to do their job.
The Judiciary since Marbury decides how to apply it to a specific set of facts but the words are binding. I think even the more “activist” judges would agree that the document is binding, they just allow more slack for the judiciary to interpret.
I can’t speak for Noyam or TJ, but I believe this is wrong. The most prominent Living Constitutionalists do not believe there is a moral basis for the Founders’ Constitution to bind us. Why should the Constitutuion, a document signed and ratified before women, blacks and many groups were allowed the vote, bind us in 2007?
There are answers, but it is a very legitimate question.
Nephtuli, I think what you’re saying is that it has to be a medium b/w these two theories. I happen to believe that it must be a blend of pure Originalist interpretation and that of very Activist judges. Over the history of the US, I believe this blend has been borne out. Even if the individual judges were extreme on one side of this debate they were counterbalanced by other justices on the other side and what we have seen is a living constitution that is deeply rooted in the drafter’s intent . The amendments have also ensured that the document be kept current.
As for the Judiciary being the ultimate arbitor of all Constitutional questions, certainly many (especially Jefferson) did not like the outcome of Marbury vs. Madison. But if you think about the lack of speed with which Congress accomplishes (or doesn’t accomplish) anything it is good to have an arbitor that is above the political fray and that can make quick decisive decisions in such important cases. If you look at American history, for the most part the Court has gotten the decisions “right” even if it took a few years to do so (Dred Scott being the obvious “mistake” that was ultimately corrected). The Court has certainly allowed the Constitution to evolve to reflect prevailing opinions in America. It’s far from perfect but it works.
Noyam: Where is that from? And what was the context? And can I look up the complete essay/letter?
Nephtuli,
Living Constitutionalists believe the document should be read (and interpreted) through the prism of today’s society and its prevailing values – not that the Constitution is no longer binding whatsoever.
LWY – And Jefferson’s whole point is that of course it doesn’t.
I agree with you on the limits of judicial power, but I don’t think the problem is as pronounced as you. In the context of judicial review, the Court will be reviewing statutes that Congress has enacted. The process is the same, its just that the Court is now saying that this law is constitutional based on our understanding of the Constitution, today.
Rob – That’s not what amendments are for. Amendments are for changing the constitution, creating or eliminating things. This is different. This is understanding, for instance, what the Second Amendment means in today’s language and what people have in mind today, as opposed to in 1789 (when guns and militias were drastically different).
In the original post, I wasn’t referring to a specific method of renewal, just that each generation’s acceptance of the Constitution (ie: not scrapping it and re-drafting it) is conditioned upon that generation’s understanding and intent in the text.
And the only reason, as you mention, that the Court has allowed it evolve, is because there has been a mix of judicial philosophies that have shaped Constitutional Jurisprudence. That, in and of itself, isn’t an argument in favor of either particular method of interpretation.
Nephtuli is right (at least in his assertion about what I was trying to say). Rob, the reason Living Constitutionalists (LCs) believe that the document should be read and interpreted with today’s understanding is precisely because the understanding and intent from 1789 is not binding. One is the practice, the other is the underlying philosophy. They are intertwined.
Adam – There’s a link in the post to the whole text of the letter, and the introduction tells you that it’s a letter from Thomas Jefferson to James Madison. With that reading comprehension, how did you do well on the LSAT? (Oh, that’s right, you had a great instructor!)
Nephtuli – I’m glad to see you being even-handed about this. I think what you’re saying has merit, but I’m not sure if LCs think that it’s because there’s no other, or (as I think) it just the best way. Certianly, as you point out, there are other methods and they have positive outcomes. As a balance, though, I think the LC method is the best.
Regarding the Court not being the best place for it, I agree, but I think the issue isn’t as drastic as you think. Remember, this would be in the context of reviewing a statute that Congress has passed. Congress will essentially be saying that it’s belief is that this law fits with our understanding of the Constitution. The Court would be determining if that was right. Not legislating from the bench, as it were, just evaluating differently.
Finally, I think your criticism of the court being unelected applies to both methods of analysis. Sure, Originalists say that they are applying the original intent. But they are applying what they’re best guess to the original intent is, and very often that’s colored by their own agenda. And there’s a flaw in Originalism that’s not present in LC: when the original intent is wrong (eg: civil rights) or unascertainable. In those cases, even originalist judges have to expand things. I don’t like a method that can’t be universally applied.
Rob,
I’m an originalist. I was just pointing out that Noyam’s concern was a bigger deal than most originalists believe.
I happen to believe that it must be a blend of pure Originalist interpretation and that of very Activist judges. Over the history of the US, I believe this blend has been borne out. Even if the individual judges were extreme on one side of this debate they were counterbalanced by other justices on the other side and what we have seen is a living constitution that is deeply rooted in the drafter’s intent . The amendments have also ensured that the document be kept current.
It seems like you’re arguing that we need a balance between conservatism and liberalism on the Court in order to allow the Constitution to be updated, but to make sure it isn’t stretched too far. This view is probably anathema to many originalists or living constitutionalists, because it combines two methodologies that are incompatible.
But if you think about the lack of speed with which Congress accomplishes (or doesn’t accomplish) anything it is good to have an arbitor that is above the political fray and that can make quick decisive decisions in such important cases.
That’s an excellent case for granting the President supremacy in constitutional interpretation.
If you look at American history, for the most part the Court has gotten the decisions “right” even if it took a few years to do so (Dred Scott being the obvious “mistake” that was ultimately corrected).
That’s a highly debatable statement. Evangelicals would tell you that creating a right of privacy is a disaster, Libertarians believe that the Court’s Commerce Clause jurisprudence has had a devastating effect on liberty, and Feminists would say that the Court’s unwillingness to subject gender classifications to strict scrutiny harms women tremendously.
The Court has certainly allowed the Constitution to evolve to reflect prevailing opinions in America. It’s far from perfect but it works.
You’re probably right overall, although there are some decisions that are outside of the mainstream. Nevertheless there are still problems with this approach, namely requiring that all states follow more or less the same rules. Even though Roe plus Casey is right around the views of the average American, we’d be better off in such a diverse country allowing some states to protect all abortions and some states to protect none.
Living Constitutionalists believe the document should be read (and interpreted) through the prism of today’s society and its prevailing values – not that the Constitution is no longer binding whatsoever.
I should have been more clear. Living Constitutionalists believe the Constitution is binding only because it is interpreted in a way that is morally acceptable in our time. The Constitution’s legitimacy is based only on the results it generates.
I’m generalizing and oversimplifying of course, but that’s the basic theme.
Nephtuli – I’m glad to see you being even-handed about this. I think what you’re saying has merit, but I’m not sure if LCs think that it’s because there’s no other, or (as I think) it just the best way. Certianly, as you point out, there are other methods and they have positive outcomes. As a balance, though, I think the LC method is the best.
Are you making a pragmatic or normative argument? LC might lead to the best outcomes, but that says nothing about its normative basis. The way I understood your characterization of Jefferson’s argument was that the Constitution is not binding because it lacks moral legitimacy unless it’s interpreted according to today’s mores. Talking about outcomes is more pragmatic. I’m just curious which way you’re going here.
Regarding the Court not being the best place for it, I agree, but I think the issue isn’t as drastic as you think. Remember, this would be in the context of reviewing a statute that Congress has passed. Congress will essentially be saying that it’s belief is that this law fits with our understanding of the Constitution. The Court would be determining if that was right. Not legislating from the bench, as it were, just evaluating differently.
Yes, but the Court gets the final say. So I’m sure there’s a difference.
Finally, I think your criticism of the court being unelected applies to both methods of analysis. Sure, Originalists say that they are applying the original intent. But they are applying what they’re best guess to the original intent is, and very often that’s colored by their own agenda.
True, but the difference is that judges are more qualified to figure out original meaning than they are the proper mores of society. Judges spend years in law school and practice learning how to interpret the plain meaning of a text and determining the meaning of the text in a different time is not that far removed from that exercise. But what makes judges more qualified than Congress (or anyone for that matter) to determine what society believes is moral or what they should believe is moral?
And I’d be the last person to disagree with your claim that originalists are biased. Everyone is biased. But Originalism is not a poorly disguised version of conservativism as there are a number of liberal or libertarian originalists (Balkin, Amar, Barnett are just a small number).
One purpose of Originalism is to limit judicial discretion by forcing the judge to tether his opinion to something other than their own beliefs. A judge who decides that the Constitution doesn’t protect individual gun ownership must show that the 2nd Amendment did not do so in 1791. What in LC limits judicial discretion this way?
And there’s a flaw in Originalism that’s not present in LC: when the original intent is wrong (eg: civil rights) or unascertainable. In those cases, even originalist judges have to expand things. I don’t like a method that can’t be universally applied.
Originalists have developed a number of ways of dealing with underdeterminancy, vagueness and ambiguity, but you are right that original meaning originalism has its flaws.
However, how is LC a method? What exactly is the judge doing? It’s easy to point out problems with Originalism because we know what it is. But what exactly is LC?
The pragmatic sounding argument was merely the pragmatist in me emerging in reponse to your remarks about moral reasons for an old constitution being binding, because they themselves seem result-oriented, instead of addressing the issue of binding-ness a priori.
You are right that LC doesn’t limit judges in the same way.
Here’s a chicken/egg problem: the constitution is set up (with lifetime judicial appointment, etc.) to be a somewhat lasting document, so there are certain aspects (I will admit) that lend itself more to an originalist approach. But the problem is, for someone philosophically aligned with Thomas Jefferson, that the intent to make the constutition lasting itself isn’t lasting or binding.
So yes, judicial elections, or some better method of informing the judiciary what the societal norms are at any given moment would certainly help. But nobody’s amending the constitution in that way.
In terms of LC being a method, you are right: it’s a philosophy that guides the jurist in making decisions, and less of a method. I should have been more clear when I wrote “I don’t like a method that can’t be universally applied.” I meant philosophically speaking.
“And the only reason, as you mention, that the Court has allowed it evolve, is because there has been a mix of judicial philosophies that have shaped Constitutional Jurisprudence. That, in and of itself, isn’t an argument in favor of either particular method of interpretation.”
And I wasn’t making an argument for one or the other just noting how these extreme opinions (while not being able to jive with one another as Nephtuli pointed out) have borne out an interesting mix in terms of the history of jurisprudence in the US. This mix (in my opinion) is far healthier than if either method of interpretation had been used exclusively.
“reason Living Constitutionalists (LCs) believe that the document should be read and interpreted with today’s understanding is precisely because the understanding and intent from 1789 is not binding.”
That is very different than saying the document itself is not binding which Nephtuli implied and has now clarified.
“It seems like you’re arguing that we need a balance between conservatism and liberalism on the Court in order to allow the Constitution to be updated, but to make sure it isn’t stretched too far. This view is probably anathema to many originalists or living constitutionalists, because it combines two methodologies that are incompatible.”
This is exactly what I am saying and as I noted earlier in this comment, while they are incompatable with one another they have had the net effect of allowing “the Constitution to be updated, but to make sure it isn’t stretched too far.” I wasn’t arguing for one method of interpreting over the other. In fact I am very much torn on this issue and think that it is a tough call. From a purely non-legal perspective (i.e. what I think is best for the US not necessarily what the justices are legally mandated to do) I’m not convinced any one justice has to use one or the other method exclusively which makes me at least open to the LC approach.
“That’s an excellent case for granting the President supremacy in constitutional interpretation.”
I am not saying speed is the only factor but it is one. Giving this right to the President would have many other negatives that far outweigh the speed factor while the judiciary (as I noted earlier) has done a pretty good job over the past 200+ years (while not being a perfect solution).
“That’s a highly debatable statement. Evangelicals would tell you that creating a right of privacy is a disaster, Libertarians believe that the Court’s Commerce Clause jurisprudence has had a devastating effect on liberty, and Feminists would say that the Court’s unwillingness to subject gender classifications to strict scrutiny harms women tremendously. ”
Agreed but all of these people have extreme beliefs at least on the one issue you highlight (not that there’s anything wrong with that). I am looking at the Court from a somewhat objective POV when saying on a whole the Court has done a pretty good job – not that I personally (or anyone else) agrees with every outcome.
“I should have been more clear. Living Constitutionalists believe the Constitution is binding only because it is interpreted in a way that is morally acceptable in our time. ”
Thanks for clarifying. I agree with this definition of LC’s.
Noyam: Far be it from me to argue with Thomas Jefferson. I would just make a few points though.
(1) Jefferson seems to concede that his view was not the accepted view of the time.
Turn this subject in your mind, my Dear Sir, and particularly as to the power of contracting debts, and develope it with that perspicuity and cogent logic which is so peculiarly yours. Your station in the councils of our country gives you an opportunity of producing it to public consideration, of forcing it into discussion. At first blush it may be rallied as a theoretical speculation; but examination will prove it to be solid and salutary. It would furnish matter for a fine preamble to our first law for appropriating the public revenue; and it will exclude, at the threshold of our new government the contagious and ruinous errors of this quarter of the globe, which have armed despots with means not sanctioned by nature for binding in chains their fellow-men.
[You probably won’t understand the significance of that paragraph unless you read it in context.]
If indeed the notion of a living constitution was TJ’s view, but not the accepted view of the time, then it could be argued (especially by Originalists) that the intent of the voters was to bind each successive generation to the constitution, leaving a mechanism for amendment or “repeal;” and thus it is so.
(2) Q: What’s the basic Originalist argument? A: That the Constitution has an Amendment process, and each day that the new generation chooses not to Amend the Constitution is in fact a reacceptance of it (Kimu V’Kiblu?). The laws remain the same as they were the previous day, and the day before that, going back for generations.
Jefferson addresses this theory head-on (as bloggers like to call it, this is the “money quote”): It may be said that the succeeding generation exercising in fact the power of repeal, this leaves them as free as if the constitution or law had been expressly limited to 19. years only. In the first place, this objection admits the right, in proposing an equivalent. But the power of repeal is not an equivalent. It might be indeed if every form of government were so perfectly contrived that the will of the majority could always be obtained fairly and without impediment. But this is true of no form. The people cannot assemble themselves; their representation is unequal and vicious. Various checks are opposed to every legislative proposition. Factions get possession of the public councils. Bribery corrupts them. Personal interests lead them astray from the general interests of their constituents; and other impediments arise so as to prove to every practical man that a law of limited duration is much more manageable than one which needs a repeal.
A scathing, yet truthful indictment of government, particularly at that time. Notwithstanding ample government reforms, some of those problems still exist. Some, however, do not. Let’s look at two hot issues – gun control and abortion.
(A) “The people cannot assemble themselves.” No longer the case, particularly if you include the internet as a means of assembly. But even if you don’t, advocates from both sides of each of those issues have no problems assembling themselves.
(B) “Their representation is unequal and vicious.” This one is half-true today, at least on those particular issues. Their representation is equal, although it clearly can still be vicious (of course, I’m never 100% sure if I’m using the word in the same way that TJ meant it).
(C) “Various checks are opposed to every legislative proposition.” I’m assuming TJ means that procedural hurdles are tough to overcome? If so, this is still true today.
(D) “Factions get possession of the public councils.” I believe that TJ means that partisan advocates are in control of the media. This is true on an outlet-specific basis, but there are so many perspectives out there that the media as a whole portrays the full spectrum of ideologies. If he means that factions get possession of the legislatures, then the same answer holds. There is no shortage of publicity for pro-choice or pro-life groups, nor for pro-gun or gun-control advocates.
(E) “Bribery corrupts them.” Yes, we have a scandal now and then, but for vastly the most part bribery is not nearly the same issue as it was in the late-18th century.
(F) “Personal interests lead them astray from the general interests of their constituents.” Recall that, at that time, senators were selected by the governors, there was very little transparency in government, and congressmen would vote their checkbook. This is not the same as today’s congressmen having a “personal interest” in getting reelected. It means that congressmen would have personal business interests in something, and would steer the country towards what was best personally (usually financially) for themselves.
And so, I don’t think that the hurdles today are as onerous as TJ envisioned. To be sure, it is certainly harder to pass a Constitutional Amendment than it is to pass a law; and passing a law is pretty hard, too (mostly because of the procedural aspects and the fact that a minority can block passage). I therefore acknowledge that some of TJ’s reasons for wanting a “living Constitution” are valid, though I disagree with his solution, and argue, with my having the advantage of hindsight, that judicial activism leads to more problems than it solves. It would be better to have a consistent legal code that was predictable.
The problem I have, Noyam, is that the Constitution is not a list of general principals. It is a list of specific rules. Nothing in the Constitution is written generically in a way that would indicate that it is meant to guide, not to bind (so-to-speak). Rights and obligations are specifically assigned, and there is even a paragraph that assigns any unlisted right to a particular party. So, when you say…
That’s not what amendments are for. Amendments are for changing the constitution, creating or eliminating things. This is different. This is understanding, for instance, what the Second Amendment means in today’s language and what people have in mind today, as opposed to in 1789 (when guns and militias were drastically different).”
…I have to respectfully disagree. I think that by “interpreting” the words a certain way, you are essentially amending the Constitution while circumventing the Amendment process. Clearly, the Constitution favors the principle of going through a formal amendment process, as evidenced by the fact that it delineates that process.
As an extension of that point, I want to address the possibility of abuse. There is a reason that the Constitution requires a supermajority to approve and ratify an Amendment: It’s because the Constitution must be able to survive the vote of a simple majority; it is the basic function of a constitution to protect the rights of the minority from being trampled by the majority. This protection is circumvented by living constitutionalists. By allowing the Constitution to change simply by the “interpretation” of five judges, you give an enormous amount of power to a simple majority. Suppose evangelicals increase their influence and are able to elect an evangelical president and enough senators. A few key appointments to the Supreme Court later, and there might be a new “interpretation” of separation of church and state, and this would essentially be an end-around past the Amendment process. The Constitution purposely requires a supermajority so as to protect the minority from these sorts of abuses of power, and although this sometimes means that rights that most Americans want (such as Abortion) wouldn’t have the votes to be added as an Amendment, it has also protected countless minorities. A Constitution that can change at the will of a simple majority (or one whose meaning can change at the modern interpretation of five judges) is hardly a bulwark against oppression.
I obviously lost track of my italics. sorry.
[Ed. Note: I fixed your tags.]
Noyam,
So just to be clear, you’re making both a pragmatic and moral argument? Could you lay out the pragmatic argument more clearly?
On your chicken-egg problem: that wouldn’t be a problem for originalists because most originalists today focus on original meaning or understanding and not intent. And LCs wouldn’t care because original intent isn’t an important issue.
Could you explain how LC is anything more than “the Constitution means what I want it to mean?”
So yes, judicial elections, or some better method of informing the judiciary what the societal norms are at any given moment would certainly help. But nobody’s amending the constitution in that way.
Who needs amendments when we can just reinterpret it that way? (I kid, I kid). It’s true that no one is calling for such an amendment, but a LC should then oppose judicial supremacy and support equality among the branches in constitutional interpretation.
Agreed but all of these people have extreme beliefs at least on the one issue you highlight (not that there’s anything wrong with that). I am looking at the Court from a somewhat objective POV when saying on a whole the Court has done a pretty good job – not that I personally (or anyone else) agrees with every outcome.
I basically agree. This is a pragmatic argument for a balance which is fine.
The problem I have, Noyam, is that the Constitution is not a list of general principals. It is a list of specific rules. Nothing in the Constitution is written generically in a way that would indicate that it is meant to guide, not to bind (so-to-speak).
This isn’t really true. Certainly the Constitution intends to bind but many of the Clauses are open-ended and general principles rather than rules. “Equal protection of the laws” and “due process” are principles and not rules.
Adam – I think you’re letting the imagination run wild with what I think LC can do. I’ll get to that in a second.
Nephtuli – I wasn’t making a pragmatic argument. It sounded to me like the arguments you presented as moral bases for an originalist thinking were ex post result-oriented, so my answer may have sounded pragmatic in response.
To both of you, and Rob:
First of all, I posted this simply to answer Adam’s call for a intellectually honest defense of the philosophy of a living constitution. I think we can all agree that I’ve done that.
Second of all, my own personal opinion is that there are flaws to both Originalism and LC (as we’ve done a fairly good job of identifying). I have no problem with an essentially originalist system, but my ideal system would recognize when societal norms and understandings have shifted in such a dramatic sense from the 18th century, so as to allow at least the slightest wiggle room and flexibility, and allow the constitution to adapt.
For instance, the principles of free speech are essentially unchanged. Whether they are applied to newspapers or blogs doesn’t matter, the “original” principles matter. The same applies to the establishment clause. Even a Jeffersonian wouldn’t allow the Establishment Clause to be eviscerated. The principles that underlie it are unchanged.
This is not the case with reproductive technology. Of course the constitution doesn’t include a right to have an abortion, having an abortion wasn’t even an idea when the constitution was ratified. Ideas like that require an updated thinking. And if that means expanding rights that may not have existed or been clearly enumerated (like the Court tried to do in Roe), then I’m OK with that (Roe did a bad job of that, but the idea is something I’m OK with).
And I’m OK with having the power to make critical decisions like this rest in a small group of the smartest jurists we have in the country.
I never really made any arguments for a normative basis for originalism; I did two things: I challenged LCs on their insistence that judges be the ones to determine society’s morality and I pointed out that LC is based on the controversial assumption that the Constitution is only binding based on how it is interpreted.
I think the latter point is more crucial. If originalists offer a normative basis for accepting original meaning originalism, then LC goes out the window. It has no justification of its own and only serves as an ideology because it perceives the others to be lacking. I suppose supporters could offer pragmatic arguments in its favor, but LC would have a much more difficult time fighting that battle.
I agree that you offered a legitimate defense of LC. No question about that. Originalists (including Justice Scalia it seems) are often woefully ignorant of the philosophical issues involved in the originalist/LC debate.
I don’t know if you’ve read about Jack Balkin’s version of originalism, but he believes originalism and LC are basically on the same page and that the original meaning of the 14th Amendment actually defends the right to an abortion. His theory allows for change within the originalist framework and works better than plain old LC, which just allows the judge to decide to “update” whenever he chooses.
I’d prefer that over a judge deciding that society “should” support abortion despite the fact that the vast majority do not (as was the case in 1973) and forcing his view of morality on the rest of us. Sure these judges are brilliant. But so are many other people. If the issue at hand is moral and involves either determining the views of the average American or deciding what that view should be, why judges? What proof do we have that judges get moral questions correct more often than philosophers or scientists? If LC is primarily based on the absence of a moral basis for the Constitution, it must be able to provide a moral basis for why judges should be making moral decisions.
Another problem with your theory is that you have no principled way to criticize judges who disagree with your views. Let’s say the SCOTUS decided that the Constitution considers a fetus a person deserving of life and bans all abortions. That’s a moral view widely held in the US even today. On what independent criteria can you call that decision wrong?
Oh btw, awesome Heroes tonight and I’m really excited about next week. Too bad it’ll be the last Heroes for a long, long time.
I pointed out that LC is based on the controversial assumption that the Constitution is only binding based on how it is interpreted.
I think the latter point is more crucial. If originalists offer a normative basis for accepting original meaning originalism, then LC goes out the window. It has no justification of its own and only serves as an ideology because it perceives the others to be lacking.
I’m not sure that’s accurate. The assumption (at least as I understand it) isn’t that the constitution is only binding based on it’s interpretation, but that the constitution as ratified in 1789 isn’t binding at all, because of Jefferson’s argument (which I adhere to). Jefferson, given today’s mortality tables, might change his number a bit, but the fact is he (and I) still would support a term limit on the consitution, and new one at the expiration of each previous one. Obivously, drafting a new constitution every 20 or so isn’t feasible. So, what then? Well, in my own personal philosophy, each generation accepts the document, but with the understanding and meaning that the words carry in their day.
I disagree that the only basis for LC is the lack of a basis for Originalism. I think the argument for LC stands on it’s own legs, and has it’s own basis (that which you called the “Dead Hand of the Past”).
“Adam – I think you’re letting the imagination run wild with what I think LC can do”
The problem is that some “activist” judges also let their imaginations run wild with what they think LC can do. There have been some wild decisions-especially in the lower courts.
“If originalists offer a normative basis for accepting original meaning originalism, then LC goes out the window. It has no justification of its own and only serves as an ideology because it perceives the others to be lacking.”
I think this is spot on in terms of my own feelings. I would add that there needs to be a blend where even “originalists” exercise some flexibility (applying current values) in terms of how the Constitution is applied . I think if you look at justices like Kennedy and O’conor (and the like), this mix is what they try/tried to accomplish. It may not appeal to a pure theorist (in that the two doctrines on their face are opposed to one another) but it makes for a good jurist in my opinion.
I’m not sure that’s accurate. The assumption (at least as I understand it) isn’t that the constitution is only binding based on it’s interpretation, but that the constitution as ratified in 1789 isn’t binding at all, because of Jefferson’s argument (which I adhere to).
If I understand you correctly, you’re arguing that the semantic meaning of the text is not binding. For me this argument is very problematic. I believe that the most correct (or at least the best) meaning of a text is its plain meaning at the time of its promulgation (or ratification if you’d like). A text can have a meaning independent of its author’s intent, and that meaning is called Clause Meaning. That is basically Larry Solum’s Semantic Originalism in a nutshell.
So if the Constitution semantically means what it meant in 1791 then your argument (if I understand it correctly) cannot follow. Either the Constitution itself lacks a normative basis and is granted that basis solely based on interpretations that accord with modern visions of morality or the Constitution is normatively sound and therefore its meaning is the original meaning in 1791. The only way to salvage your argument is to disagree and claim that the semantic meaning of the text is not the original meaning. Are you making that argument?
Jefferson, given today’s mortality tables, might change his number a bit, but the fact is he (and I) still would support a term limit on the consitution, and new one at the expiration of each previous one. Obivously, drafting a new constitution every 20 or so isn’t feasible. So, what then? Well, in my own personal philosophy, each generation accepts the document, but with the understanding and meaning that the words carry in their day.
Is it the Constitution that isn’t binding from generation to generation or is it the meaning of the Constitution that isn’t binding? The first part of the paragraph implied that the meaning itself isn’t binding but the Constitution itself is. Now it seems you’re saying the Constitution itself isn’t initially binding, but only becomes binding because it is understood according to its modern understanding (i.e., interpreted in accordance with modern moral norms).
Am I misunderstanding you?
I disagree that the only basis for LC is the lack of a basis for Originalism. I think the argument for LC stands on it’s own legs, and has it’s own basis (that which you called the “Dead Hand of the Past”).
The “Dead Hand of the Past” challenge (DHP) is not a justification for LC but rather an argument against originalism. DHP makes LC the only viable option to make the Constitution binding because otherwise there’s no reason why the Constitution should be binding,
Originalism believes that meaning of the text at the time of its ratification is binding (which obviously assumes the Constitution itself is binding). DHP argues that the Constitution cannot bind us because there’s no normative reason to be bound by a document we did not assent to. In other words originalism, which is supposed to provide a normative basis for the Constitution, fails. So they fall back onto LC, which is the only way to make the Constitution binding.
If DHP can be successfully rebutted, LC no longer has any justification. A number of prominent originalists have provided such a justification, so the Constitution is binding and LC is without basis. Obviously if you disagree that originalists have successfully deflected DHP, then you’ll still support LC. But LC is incapable of providing its own justification; it’s merely a default position.
I would add that there needs to be a blend where even “originalists” exercise some flexibility (applying current values) in terms of how the Constitution is applied . I think if you look at justices like Kennedy and O’conor (and the like), this mix is what they try/tried to accomplish. It may not appeal to a pure theorist (in that the two doctrines on their face are opposed to one another) but it makes for a good jurist in my opinion.
I wouldn’t say either Kennedy or O’Connor were Originalists. Even Rehnquist probably wasn’t an originalist.
I think you might like Balkin’s originalism as well. He requires looking at the concepts and principles in the text, but allows each generation to interpret what they mean. So the text disallows cruel punishments and cruel means what it meant in 1791 (just like Domestic Violence does not mean wife abuse), but each generation gets to determine what qualifies as cruel. So updating is required.
The only way to salvage your argument is to disagree and claim that the semantic meaning of the text is not the original meaning. Are you making that argument?
I think I’m not presenting my basic argument well. Let me try again.
The Constitution itself, in all respects, is not binding on subsequent generations. What follows stems from two issues:
1) Then, according to my theory, we have no governing document; and
2) How do we still govern based on the constitution, if it has no validity?
I go, myself, from here to my next point: because there is no constitution from generation to generation, each generation that continues to accept it and govern based on it’s rules is essentially re-ratifying, impliedly so.
From there, I go in an originalist direction: the constitution is to be interpreted according to the plain meaning of the words, how they were understood at the time of their ratification (which, in this model, is with each successive generation, which I admit is an amorphous concept).
By the way, where this differs from (and I hate to bring this up, but I think it’s illustrative) religion, is that the Torah is binding on successive generations, because the Torah isn’t subject to the intent of the ratifiers, but of the drafter, which we presume is unchanging with each successive generation. (Which is not the case with rabbinic law, btw.)
“I wouldn’t say either Kennedy or O’Connor were Originalists. Even Rehnquist probably wasn’t an originalist. ”
That’s my point, they don’t limit themselves to either method of interpretation.
Ok, I think I got your argument. The Constitution of 1791 is no longer valid. Each “generation” implicitly ratifies a new constitution by following its dictates and the new constitution just happens to have the same words as the original one of 1791. So our generation’s constitution has the same text, but the plain meaning of that text is based on modern parlance.
This argument responds to my first point, but leaves my second point untouched. If originalists could provide a reason why the Constitution of 1791 is binding, then there would be no need to reratify the Constitution in every generation.
I have a few problems with your theory, though:
1) In what sense can we say the same constitution is being reratified? If the ratification process is solely by virtue of the conduct of the people seemingly following its dictates, then perhaps we are ratifying an unwritten constitution that differs in content from the one in 1791. Sure there are some similarities, but there are many differences as well (no one can seriously argue that the word “commerce” even today means Congress can regulate anything). The plain meaning of the text even today would contradict major aspects of constitutional doctrine.
2) If we assume this generation’s constitution has the same text as the 1791 one, what happens when the text only makes sense based on the original meaning? What does Domestic Violence mean in our constitution?
3) Your solution doesn’t really solve the moral problem. One aspect of the problem is the idea that we should not be bound by the Constitution of the past; but another problem is why you or I should be bound by even today’s constitution. I didn’t agree to a prohibition against medical pot, so what is the source of Congress’ authority to enforce that law (Congress’ power is derived from the Commerce Clause)? I never agreed to the Commerce Clause.
LC’s answer this challenge by claiming that the interpretation of the Constitution is proper morally, so I am obligated to do what’s moral. Some originalist theories also answer this challenge. How does your theory respond to this problem?
This argument responds to my first point, but leaves my second point untouched. If originalists could provide a reason why the Constitution of 1791 is binding, then there would be no need to reratify the Constitution in every generation.
Not really, I just don’t accept that LC is a gap filler, that only applies in the absence of a reason why originalism should.
What does Domestic Violence mean in our constitution
Note that “domestic” isn’t capitalized, so it doesn’t mean what “Domestic Violence” means in the vernacular, and at least means Violence occuring domestically. That’s not so problematic for me.
another problem is why you or I should be bound by even today’s constitution. I didn’t agree to a prohibition against medical pot, so what is the source of Congress’ authority to enforce that law
I don’t go that far, and believe that living in America binds you to the social contract that Americans have enacted, which is our Constitution. The living leadership and populace of America can bind themselves and those that live here. Jefferson’s issue isn’t at play.
Not really, I just don’t accept that LC is a gap filler, that only applies in the absence of a reason why originalism should.
Why not? You haven’t offered a justification for LC that doesn’t hinge on the Constitution’s lack of normative basis.
Note that “domestic” isn’t capitalized, so it doesn’t mean what “Domestic Violence” means in the vernacular, and at least means Violence occuring domestically. That’s not so problematic for me.
There are other examples but let’s leave this aside for the time being.
I don’t go that far, and believe that living in America binds you to the social contract that Americans have enacted, which is our Constitution. The living leadership and populace of America can bind themselves and those that live here. Jefferson’s issue isn’t at play.
That is debatable, but it’s also probably best not to get into that argument right now.