Academic

Two Versions of Living Constitutionalism

By Lawrence Solum

Stephen Griffin has a post on Balkinization entitled Can Living Constituitonalism?

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.

And Jack Balkin replies:

[P]rinciples underlying the constitutional text, as constitutional constructions, do not have to "have a pedigree in historical evidence from the time of the adoption of the text." That is, as long as original (semantic) meaning is preserved, new principles may be associated with the Constitution over time if they are constructions that the text can bear.

The reason is simple: Arguments from structural principles may invoke principles that become clear only after the government has been in operation for some time. Structural principles may be derived from original expectations about the way the Constitution would work, but they also stem from the way the Constitution actually does work in practice over the years. If we said that new principles (which are constitutional constructions) can never be recognized, we couldn't explain much of our current practices of structural argument. These principles have to be consistent with the original meaning of the text, but they do not have to have been intended by anyone at the time the text was adopted.

Two (very brief) comments.

First, there is a undertheorized and murky divide among living constitutionalists about the relationship of living constitutionalism to the hard core of the constitutional text.  Compatabilists, like Jack Balkin, limit the scope of living constitutionalism to constutitional construction and demand fidelity to the semantic meaning of text.  Other living constitutionalists may affirm incompatabilism, and believe the constitution has a soft core--that the meaning of the text can be changed for consequentialist (or other reasons).  Not unsurprisingly, incompatabilits are relunctant to directly state the thesis that courts or other officials have power to change the meaning of the constitution, and are therefore likely to state their position in a manner that elides the distinction between interpretation (the recognition and discovery of linguistic meaning or semantic content) and construction (paradigmantically, line drawing where the semantic content is vague).

Second, Balkin's reply points to a key issue for contemporary originalists--what should originalists say about constitutional construction.  Contemporary "New Originalists" (including Balkin, Barnett, and Whittington) have suggested that constituitonal construction is not determined by original meaning: indeed, one might say that construction takes the stage when interpretation (and hence original meaning) makes its exit.  Balkin suggests that construction is guided by principle, and he now endorses the view that such principles need not be rooted in historical views about the purposes or functions of constitutional provisiosn.  Barnett argues that construction must be guided by a theory of constitutional legitimacy that emphasizes justice.  Whittington emphasizes the role of politics.

But one can imagine a different kind of originalism that attempts to tie constitutional construction more directly to historical materials.  Balkin's earlier work was in this vein--until recently he emphasized what we might call "original principles."  Some originalists might attempt to revive "original intentions" (or "original purposes") as guides for constitutional construction--although there are substantial (and well-known) problems for this strategy.

Read Balkin & Griffith.

My take on these issues can be found in Semantic Originalism and a summary in found in A Reader's Guide to Semantic Originalism and a Reply to Professor Griffin.

Full post as published by Legal Theory Blog on May 21, 2008 (boomark / email).