Academic

Griffin on Hard Core Living Constitutionalism

By Lawrence Solum

Stephen Griffin has a post entitled Hard Core Living Constitutionalism on Balkinization.  Here is a taste:

Hard core living constitutionalism means the Constitution and constitutional change should be described, explained, interpreted, and justified in a fully historicized way. Properly understood, living constitutionalism is a full context sport. Let?s take interpretation, since in the DC gun case oral argument we had an outstanding example of undead constitutionalism, the kind that doesn?t live but talks. When interpreting the text or a principle, concept or institution (such as federalism, separation of powers, sovereignty) we first ask whether the context in which that phrase or principle is interpreted has changed since 1787 (or when adopted). Among other points, this means asking whether the asserted state purpose existed in the eighteenth century. This is especially relevant in the case of gun control because the change in circumstances has been so dramatic. In 1787, cities were not the complex urban areas they are now and professional police forces did not exist. The urgency present during my lifetime about crime control was not evident. Any approach that ignores this change in context will inherently undervalue the state purpose behind the legislation and privilege what we would now call a libertarian theory of the state.

And:

Context matters not just because the Constitution is vague in some respects, but also because it is short. It was deliberately not an attempt to settle a vast array of policy questions in the manner of our state constitutions. By and large, it leaves questions of policy for politicians. But contexts for policy change. Unless we want to keep having constitutional debates set in an eighteenth-century policy context, we must consider a role for changing circumstances in constitutional interpretation. Changing circumstances include subsequent amendments, precedents, and key constitutional events, the sum and substance of a constitutional tradition that connects us with the past but is not derived from it exclusively.

Read this post!

I have a questionf for Griffin: What do we do when context changes in ways that make the "core meaning" of the constitutional text normatively unattractive?  Heller isn't a really good test case because the constitutional text is vague--even if we resolved the individual collective rights question in favor of Heller, the scope of "the right to bear arms" is vague.

Are hard core living constitutionalists willing to give judges and other officials the power to engage in "amending constructions" that effectively nullify some consitutional provisions or give them meanings that are inconsistent with the conventional semantic meaning of the text?

Full post as published by Legal Theory Blog on April 01, 2008 (boomark / email).