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Can Living Constitutionalism be Defended?

By Jack M. Balkin

My title is inspired by reading through the interesting symposium on Jack?s ?method of text and principle? in the latest issue of Constitutional Commentary (and further reflection on Solum?s ?Semantic Originalism?). Everyone seems to be running away from living constitutionalism! So can living constitutionalism (LC) be restated in a way to show it is defensible, despite Jack?s arguments? I think so, but what follows may strike you as an outlier version. For instance, I have never found ?dead hand? arguments appealing and I think Jack?s arguments are well taken on this score. As long as you accept the Constitution as enforceable law, the dead hand governs legitimately. I do agree strongly with the common LC argument that the Constitution is practically impossible to amend.

What I have to say assumes that the method of text and principle requires both elements to be founded on original meaning, although not original expectation. In other words, if a principle does not have a pedigree in historical evidence from the time of the adoption of the text, it is not a principle to which we owe fidelity and is also illegitimate in constitutional interpretation. So we can?t invent principles post-text, we have to content ourselves with the class of principles that existed at the time the text was adopted (although it is not necessary that the framers specifically thought of them, endorsed them, etc.). I think Jack?s account of the principles behind the fourteenth amendment supports this, as he highlights the principles against class and caste legislation. These are principles rooted in the thought of the generation that adopted the Reconstruction amendments.

I also assume principles founded in 1789 original meaning can later be repudiated or, perhaps, fall into disuse because they are inconsistent with how the text has been amended. So it is conventional wisdom that the principles Justice Taney used in Dred Scott to deny citizenship to blacks were textually repudiated in the fourteenth amendment. And sometimes it is said that the effect of the Civil War was to repudiate the doctrines (ultimately founded on the principles of state sovereignty and constitution as compact) of nullification, interposition, and secession. This means the current set of constitutional principles is not the same as the set that existed in 1789. Just as the text has been altered, principles have changed.

At the same time, we should not assume that because the text has been changed, it is necessarily the case that relevant prior principles have been altered. This is part of what is going on in Slaughterhouse, an often-used example of departure from original meaning. Like many scholars, I agree the Court went too far in making the privileges or immunities clause a dead letter. Why did it do this? The Court thought that federalism, an important constitutional principle with an impeccable pedigree in original meaning, was implicated by the claim that states could be restrained by rights with respect to regulatory legislation thought desirable. The Court went too far in depriving the clause of meaning, but this does not imply there was no principle (or set of principles) concerning federalism grounded in original meaning. Research by many historians has shown that despite that impact of the Civil War, Reconstruction-era Americans remained firmly wedded to principles of federalism they correctly associated with the founding generation.

Now consider what would happen if there were a raft of principles grounded in original meaning that were inconsistent with legislation needed to address a crisis. Like after the Civil War, amendments would be appropriate. But further suppose that amendments were practically impossible. Now what? Of course, this is a description of what happened during the New Deal. Tremendous changes in government power, but no amendments. It is thus important for any theory of fidelity to account for what happened during the New Deal. Here is where LC comes in and I think what follows is a widespread understanding of LC at least with respect to questions of government power and structure (I?m leaving rights aside). LC is a theory that explains how the Constitution adjusted in a world where amendments were not practical rather than a theory that asserts we don?t have to be faithful to its underlying principles. On this understanding, reliance on contemporary meaning (really meaning mediated by historical tradition) was unavoidable, not desirable or undesirable, faithful or faithless.


What were the principles firmly grounded in original meaning that nearly sank the New Deal? Here are some examples: (1) no class legislation, meaning certain economic regulatory measures could not be enacted; (2) individuals and corporations had vested property rights that could not be violated absent compelling reasons; (3) legislation could not have redistribution of property as its primary object; (4) states retained sovereignty and were co-equals in the federal system; (5) the role of the federal government must be limited ? ?limited government.? You will notice that point #1 agrees with Jack?s interpretation of the fourteenth amendment. It?s true one version of the class legislation principle might disfavor laws that disadvantage a particular group like women. But it also disfavors laws that disadvantage employers, or, for that matter, give special regulatory advantages to any group. The class legislation principle is somewhat inconsistent with what we now call the ?interest group state,? various regulatory schemes that both benefit (with subsidies) and burden (with regulations) all sorts of groups. In law school I thought that these principles were unjustified holdovers from the Lochner era, invented by the Court to hold back the regulatory tide. However, their pedigree in the thought of the founding generation as mediated by subsequent generations, is confirmed by substantial research by many historians. It?s true the 1787 framers had no expectations about industrial capitalism and labor unions. But they did adhere to important principles concerned with the rights of private property and the proper objects of limited government.

Why couldn?t there be amendments to alter these principles and the text they supported? This requires a long argument that I set forth in my 1996 book American Constitutionalism. I?ll confine myself to a few points. First, many New Dealers (including for awhile FDR) agreed at first that amendments were necessary. Most were aware that the New Deal was a departure from constitutional principles previously adhered to. But they found themselves up against serious practical difficulties. Agreement on language was hard to come by. Any amendments might be interpreted unfavorably by a hostile judiciary. The supermajority requirements of Article V were daunting when one looked at the political situation state by state. And so on. As people know, FDR eventually decided that the justices were the problem, not the Constitution. But for theories based in fidelity, what matters is what the best historical understanding shows about the meaning of text and principle in relation to the New Deal. And that understanding is basically inconsistent with the constitutionality of the New Deal.

So the New Deal had a fidelity/legitimacy problem that couldn?t be solved through amendments. How did they solve it? Bruce Ackerman says transformative opinions, de facto constitutional amendments. I put it this way ? constitutional meaning was democratized. The people had a chance to agree with those loudly registering constitutional objections to the New Deal and they just didn?t see it that way ? they approved it in multiple elections over decades. This is one reason the concern with fidelity strikes me as a bit late to the game. Fidelity would seem to require it to be easy to amend the Constitution through Article V. That way, it could be kept up to date. But it?s not easy, and there?s plenty of evidence it has only become more difficult as politics has changed and the institutional context has ?thickened?, as political scientists like to say. To put it another way, the New Deal shows the limits of theories that try to understand questions of constitutional legitimacy in terms of legal fidelity. This twentieth century experience shows that what matters is legitimacy in a broad democratic sense. True enough, solving legal problems in a jerry-built political way can cause serious difficulties for legal and constitutional theory, maybe for constitutional law itself. But noticing this doesn?t make the practical problem go away.

You may think I?m ignoring the way the Court solved the problem in cases like Darby and Wickard. The Court used Marshall?s opinions in Gibbons and McCulloch to validate New Deal measures. First, notice a minor problem ? the Court did not investigate original meaning, it assumed that Marshall got it right. But the real difficulty, as many historians have confirmed, is that the entirety of what Marshall said in these cases did not back up the reasoning of Justices Stone and Jackson. In addition, nothing that Marshall said repudiated the many other principles noted above that the New Deal violated. Don?t worry, I?m not about to urge you to follow Justice Thomas and Richard Epstein through the doors of the Cato Institute. Remember, from the standpoint of fidelity theory what matters is not what the Court said but whether they got it right. I wouldn?t say the Court propounded a myth ? just engaged in some standard law-office history assisted by selective quotation. Nothing unusual about that, but also nothing that satisfies the criteria of theories that demand fidelity.

This analysis suggests that theories of fidelity have a hidden assumption ? that the Constitution can be updated through amendment if original meaning, understood as text and principle, runs out. My theory of constitutional change starts by critically examining this assumption and finds it wanting. Hence my resistance to fidelity theories. What about the newly popular ?out? of constitutional construction? I make short work of this idea in my forthcoming article ?Rebooting Originalism? because if fidelity theorists are serious about adhering to that value, the outcome of a construction cannot violate original meaning. And because there were plenty of principles violated by the New Deal, construction can?t maneuver us around that particular fidelity problem.

So what is LC? If we factor out the versions that even Justices Sutherland and Rehnquist would have agreed to (such as amendments can change the document fundamentally and new circumstances will always generate new precedents), it is a practical response to a world in which constitutional stability is so highly valued that we don?t want to make amendments even when they are clearly called for. While I would not call for an endorsement of Posnerian pragmatism in adjudication, Sunstein is basically right to emphasize that in assessing originalist claims, a dose of consequentialism is appropriate. True, new originalists have emphasized that they don?t want to overthrow the current order, just replace the planks as the ship needs repair. But the consequentialist point is not so much a refutation of proposed radical change as it is a reminder that the hard-won lessons of constitutionalism in the twentieth century show that fidelity and rule of law values are not the only values in play.

By the way, and just to make this post a bit longer, I?m happy to sign up for an effort to make Article V amendment easier and so restore a certain balance to a situation where, in effect, an enormous amount of constitutional change has been forced off-text. But such ideas are not popular. It?s possible we are paying a price for our devotion to stability. There may in fact be a few examples of policies that are running into trouble because of persistent constitutional objections. The chief example I have in mind are environmental laws, especially those that relate to preservation of natural resources like endangered species. As noted by Richard Lazarus in a recent book, there is mounting evidence that the Court?s standing and commerce clause decisions hostile to environmental regulation are, in effect, properly hostile ? that is, the Constitution really does not underwrite the sort of regulations that environmentalists think desirable. The problem is that environmentalists are really not interested in regulating commerce (or even the effects of commerce), but, well, doing something that promotes the environment per se. This may be a good example of how the de facto moratorium on amendments is hurting policy.

Full post as published by Balkinization on May 20, 2008 (boomark / email).