Legal Commentary

Eric goes right to the heart of the matter when he asks why we should have a system of constitutional interpretation that reflects changes in popular opinion produced by long term popular mobilizations. He asks: If constitutional change responds to political mobilizations, social movement activism, presidential appointments strategies, and shifts in popular opinion, what is the purpose of having constitutional courts in the first place? Why not just get courts out of the business of holding anything unconstitutional and exercise judicial restraint in almost every case? Why not just have a purely majoritarian democracy?

To answer this question, let's take a look at Eric's account of the system I described. First, Eric says, the effect of partisan entrenchment is "conservative (in the temporal sense)" because Justices reflect the views of political coalitions that put them in office when they were appointed. (And that means, on a multimember court, that a variety of different positions, strewn across time, are represented.) Partisan entrenchment in the judiciary may prevent drastic changes in governance, or as Eric puts it, it may promote "smooth policy variance over time." Second, the system I've described "enhances the degree of supermajoritarianism that already exists in our heavily supermajoritarian system" because laws not only have to pass Congress and the President (or the state legislature and the Governor) but also the scrutiny of a court whose members were appointed by people at different times with very different political views. Third, this process "produces a heavy orientation toward maintaining the status quo, and will cause problems in particular when public opinion changes more rapidly than the average justice's term." Put somewhat differently, if the vector sum of political forces changes swiftly on a constitutional issue, the courts will tend hold back and resist the views of the day until the change in constitutional culture proves lasting, because it will take time for new judges to replace older ones. (There is an additional point that Eric did not mention: because the federal courts are appointed by the national political process, they will tend to keep regional majorities close to the views of the national political coalition. That is to say, they are not so much counter-majoritarian as nationalist.)

It's worth noting what Eric has just described (and what he largely objects to): He is describing basic features of constitutionalism generally. Constitutionalism channels and disciplines present day majorities through supermajoritarian rules that they cannot easily change overnight (but can change eventually); this prevents drastic changes in governance and keeps temporary majorities from altering or subverting the constitutional values of more temporally extended supermajorities. In essence, what Eric finds inefficient and unnecessary is constitutionalism that interferes with simple majoritarianism, which is to say, he is opposed to most forms of constitutionalism. Most forms, but not all, because in other work Eric has offered an important exception to his generally skeptical approach: he wants constitutions to restrain democratic decisionmaking that undermines what he calls "political competition," that is laws and practices that interfere with the ability of different political elites and political parties to compete for voters, but not any other rights. Indeed, as long as we effectively protect political competition by other means, we don't really need constitutional rights guarantees at all.

Understood in this way, Eric is not objecting to my account of living constitutionalism because it is politically responsive. He is objecting to it because it is constitutionalism, i.e., because it restrains majorities, because it is not politically responsive enough. His concerns are quite different from Dahlia's. Dahlia wants to make sure that courts are not simply on a frolic and detour, and that they aren't simply mouthpieces for the views of contemporary majorities. That is to say, Dahlia's problem is the opposite of Eric's. She likes constitutionalism (and judicial review) just fine. She's not an originalist by any means, but she likes the rule of law values that originalism promises (even if it can't always deliver).

The version of living constitutionalism I've sketched out in my previous posts sits squarely between the two of them, and that is why they are objecting to it, albeit from opposite directions. Dahlia thinks there's too much democratic politics in my account, and not enough legal restraint. Eric thinks its an inefficient way to do democratic politics.

In general, living constitutionalism of the sort I've described allows social and political mobilizations, working over long periods of time, to shift the interpretation and application of abstract clauses and open ended features of the Constitution. But for the most part it has not altered the "hard wired" features of the Constitutional text. (To the extent the latter has happened, it is really quite exceptional, and, I think, quite wrong). This approach is faithful to the Constitution's original meaning but not necessarily the original expected application of the text. Long term changes in constitutional culture can move us from Plessy v. Ferguson to Brown v. Board of Education, but they won't allow a 34 year old President, or three Houses of Congress, or a simple majority of one House to overturn a Presidential veto. While Article V amendment is necessary for changing these hardwired features of the Constitution, the interpretation, implementation, and application of vague and abstract clauses like "equal protection" can and does change through sustained political mobilization.

To me it is not at all surprising that fights between so called originalist and living constitutionalist approaches almost never concern the hard wired features of the Constitution; they almost always concern the Constitution's abstract guarantees and its silences. Most living constitutionalists assume that the hard wired features of the Constitution are binding even though they were created a long time ago. That is to say, they do not object to the dead hand of the past with respect to those features; their concern is primarily the construction and interpretation of those clauses and features that use the language of general principles and standards. They argue that we are not bound by how the generation of 1791 or 1868 would have applied the text. I think they are right about that. It is our job to interpret the text in our own time.

Under this model of living constitutionalism, successive generations may not reject the Constitution's text and principles, but they may decide how best to honor, implement, and apply them through constitutional constructions and doctrinal implementations. We can reject Plessy v. Ferguson, which is simply one generation's attempt at implementing the Constitution, but not the words of the equal protection clause.

This model produces a system of judicial interpretation that is responsive to democratic politics in the long run but not directly controlled by it in the short run. It preserves constitutional law's relative autonomy from politics in the short run while making it responsive to constitutional politics in the long run.

It also involves a system of judicial review but not a system of judicial supremacy. This distinction is crucial: Courts act as a stabilizing force, and hold officials (and especially executive officials) accountable to law, but they never have the last word. The purpose of judicial review in this model is to represent and protect (in as legally principled a way as possible) the constitutional values of temporally extended majorities, and to prevent quick and drastic changes in those constitutional values unless there has been extended and sustained support for change that is reflected in long term changes in constitutional culture.

Moreover, in this model judges do not have to do anything special or out of the ordinary to participate in the process of living constitutionalism. They don't have to be politicians or moral theorists or divinities like Dworkin's Hercules or philosopher kings. They don't have to be smarter, or wiser, or more moral or more farsighted than anyone else. All they have to do, once they get appointed, is to try to decide the cases according to law, in the best way they can. If they just go about doing their jobs, they will, in spite of themselves, participate in the gradual translation of changing constitutional politics into constitutional law. Meanwhile the job of people like me, and Dahlia, and Eric, and everyone else, is to criticize how they interpret the law and to try to persuade other people, and them, that our interpretations of the Constitution are the best ones and that they should agree with us.

As many of you know, I regard myself as both an originalist and a living constitutionalist. For me originalism requires fidelity to original meaning of the text and the principles that underlie the text, but not fidelity to the original expected application. So the model of living constitutionalism I've described here is largely consistent with my originalist views about constitutional interpretation. Lest I be misunderstood, this does not mean that I agree with every decision the Court has every offered on the merits? for I do not? but that the broad outlines of change in American constitutional history are consistent with this general approach to interpretation, even if I think that many cases were wrongly decided. (Indeed, I regard this as a strength of my approach: it can make sense of what our nation has actually done in practice and what our constitutional traditional actually has produced.). I argue that the implementation and application of vague and abstract clauses is not fixed by what the adopting generation expected, but rather can change over time in response to long term changes in public opinion and sustained mobilizations in democratic politics.

You can now see the answer to the question that Eric and Dahlia posed: Why do we have judicial review at all if it is subject to democratic forces in the long term? Why is a flexible constitutionalism in which the interpretation of abstract clauses (but not the hard wired features) can change slowly over time better than a system of pure majoritarianism without constitutional constraints? The answer is that this variety of living constitutionalism still provides the valuable goods of constitutionalism, but in a way at once more flexible and, I would argue, more admirable than, say, Justice Scalia's model of originalism, which ties original meaning closely to original expected application. It is more admirable because it can make sense of the great achievements of American constitutionalism during the past two centuries that Scalia's model must treat as mistakes, mistakes that we retain only because people have come to rely on them. In my account of living constitutionalism, the reason why the Court protects women from sex discrimination is because of a sustained social movement for women's rights that changed people's views about what equality and equal protection required. In Scalia's model the Court protects women's rights today because activist judges wrongfully imposed their idiosyncratic values into the Constitution and now it's too late to change this dreadful mistake.

My account of living constitutionalism maintains the benefits of constitutionalism generally while allowing adjustments in interpretation over time in the face of sustained democratic mobilization. This makes it superior to Scalia's version of originalism, which he must continually leaven with exceptions for all those "mistakes," It also makes it superior to Eric's preference for pure majoritarianism, which loses out on the benefits of having a constitutional system that guarantees basic rights and limits on government. And it makes the most sense of our system of judicial review, which is not (and never has been) a system of judicial supremacy.

Dahlia reprinted a very interesting e-mail by Richard Shragger of U. Va., who argues that my account of living constitutionalism is too externalist and descriptive. This is an important criticism, which I will discuss in my next post on this topic.

But let me leave you with this point, which I will also develop in my next post. I think that people misunderstand what a theory of living constitutionalism has to do in order to be successful. Most people assume that living constitutionalism is a theory about how to interpret the Constitution in a particular case; it is a sort of mirror image to what they think originalism is. In their view originalism is a theory directed to judges about what judges have to do to be faithful to the Constitution. Therefore living constitutionalism must be the same kind of theory. It must also be directed to judges and it must explain to judges how to decide particular cases. That is why Justice Scalia regularly makes fun of living constitutionalism. As he likes to say, it takes a theory to beat a theory, and living constitutionalism doesn't have one.

I think this is incorrect. Living constitutionalism is primarily a theory about what makes the process that produces changing interpretations of the Constitution legitimate. It is not primarily a theory that offers advice to judges about how to decide particular cases, for the general sort of advice it offers? keep up with the times, and adapt to changing conditions? is probably unnecessary in any event. More about this point in my next post.

Full post as published by Balkinization on March 27, 2008 (boomark / email).