Balkinization: What Is Living Constitutionalism?, Part II

What Is Living Constitutionalism?, Part II

In the last set of posts, I've been explaining my views about living constitutionalism. I've argued that living constitutionalism is a process of change through which constitutional doctrine responds to social and political mobilizations and long term changes in popular opinion about what the Constitution means.

Richard Schragger objects that my account is merely descriptive and external– it is simply "a description of how political/historical forces shape courts and other institutions of government." This can't be living constitutionalism because it doesn't answer the question of "What does the Constitution require?" and the question "whether the Court is actually engaged in making law." Schragger wants what he calls an internal account, an account that argues that "that the Constitution is law, that law has content, and that legal doctrine has to be justified by an actual theory or account of the Constitution, the rights it contains, and how those rights apply through time."

I agree with Richard that a theory of living constitutionalism must be both normative and internal. I disagree with his assumption that my account is merely descriptive or purely external.

Individuals and Systems

We can talk about our constitutional system descriptively-- how it works-- or normatively-- for example, how it must work to be democratically legitimate.

Second, we can talk about it from the perspective of an outside observer who does not participate in it, or from the perspective of a participant invested in the future of the system who regards its directives as binding on him or her. And within the class of participants, we can look at it from the perspective of a judge, a legal official, or a citizen.

Third, and most important, we can focus our normative judgments on how the system operates as a whole or on what individuals in a system should do within the system. Sometimes we focus on individual behavior, but sometimes we think the proper focus is on the system of the design as a whole. Suppose for example, that we want to design an efficient market. We ask how its design and incentives produce certain types of results, and if it does not, we redesign the market and shape the incentives. We do not spend very much time giving advice to people in the market about how to behave so as to produce efficiency; rather we assume that efficiency arises from the sum of their interactions, and not from each of them following our advice about how to behave. In fact, it may be a mistake to focus primarily on advising individual people about how to behave in the market, although educating people about costs and benefits, might be a good idea; so too much be educational campaigns to shape people's values and preferences. Another example of a focus on systems is our Constitution's separation of powers. It tries to preserve republican government by balancing contrasting interests, under the assumption, as Madison put it, that enlightened statesmen (the sort who would respond to good advice) will not always be at the helm.

When Richard says that my discussion is not "internal," what I think he really means is that I am not giving advice to judges about how to decide cases so that the constitutional system as a whole is legitimate. He is right about that. I don't think that's the most important point of focus in understanding the legitimacy of constitutional change. I will have something to say about this later on, but I do not think that giving advice to judges is the primary goal of a theory of living constitutionalism.

The more fruitful normative question is not what specific interpretive theory judges should adopt to ensure legitimacy, but whether the system of constitutional change the country has developed over time is legitimate. That is, is the system of constitutional decisionmaking legitimate taken as a whole? Does it serve the larger purposes of constitutionalism, democracy, and the rule of law?

"Living constitutionalism" cannot be simply a theory of how individual judges should decide cases– although obviously people can offer that sort of advice as well. It must be an account of why changes in constitutional doctrine over time– which largely occur outside of Article V amendment and are not in the control of any single person, much less any single judge– are legitimate. It has to be an account of why these changes can simultaneously serve rule of law and democratic values.

Advice to Judges or Theory of Legitimacy?

As I noted previously, I think people misunderstand what a theory of living constitutionalism has to do in order to be successful. They think it has to be a theory that tells judges-- "here's how to decide cases that come before you. Do this and don't do that."

Why do people think this? Possibly it is because they think that originalism is just such a theory, and so they assume that living constitutionalism must be its mirror opposite. They are wrong about living constitutionalism. They are also wrong about originalism.

Originalism offers advice to judges about how to decide cases because it is also a theory of what makes the constitutional system (and the institution of judicial review) legitimate. It argues that fidelity to the Constitution is necessary for democratic legitimacy. There are several theories for why that is so, but perhaps the most familiar version is that the Constitution was created through an act of popular sovereignty and therefore we must preserve the meaning of the Constitution over time in order to preserve the legitimacy of the original act. Hence judges must adhere to original meaning. If they do so, then they will do their part to maintain the system's legitimacy.

This theory closely connects what makes the constitutional system legitimate with advice to individual judges about how to decide particular cases. But living constitutionalism may not work the same way. It concerns how the system as a whole works over long periods of time: why the cumulative processes that produce changing interpretations of the Constituition over time are legitimate. It may not be advice directed to individual judges, or, if it is, it must be far more than that.

That's what I'm trying to explain. My approach is thoroughly normative, and it is also internalist, because I offer it from the perspective of someone in the system who wants to know what makes the system legitimate to them and to their fellow citizens.

Why do I emphasize focusing on how the constitutional system actually changes? The answer is simple: Ought implies can. We cannot expect actors to do what is not possible for them to do. That means that a causal account of the system is necessary precursor to any normative account of constitutional legitimacy. Sadly, much normative constitutional theory seems to ignore this crucial question. It assumes that if we just give judges the correct advice, and they follow this advice, the system as a whole will produce legitimate results. It does not stop to ask whether anyone could or would actually take the advice being offered or if individuals took it, whether the constitutional system as a whole would respond in the right way.

The work of a multimember court is not going to correspond to any coherent theory of advice directed at one individual. The cases will go all over the place: they will not correspond to any consistent methodology.

This does not mean that normative criticisms of judges and their decisions are useless or irrelevant to constitutional legitimacy. My point is that arguments about good judging and correct constitutional interpretation aren't external to the system of constitutional change. They are part of the process through which change occurs. The clash of opposed views about what the Constitution means and the clash of opposed positions about the authority of different actors in the system drives the system forward. When people argue with each other and try to persuade each other, they are helping to shape the constitutional culture in which citizens live and in which judges hear and decide cases. When lawyers argue before courts, they are trying to persuade judges to rule their way. Not only is normative argument about the Constitution not futile, it is a central element of what makes a living Constitution live. Arguments about what the Constitution means and who has the authority to say what it means are crucial because they persuade the actors in the system to think differently. This produces new judicial appointments and can shape the views of judges who are already on the bench. Normative arguments about what the Constitution means occur in mobilization, in political campaigns, in debates about judicial selection, and in litigation campaigns. They are the stuff of constitutional culture and the drivers of constitutional change.

"Keeping up with the Times"?

Understood as an account of the processes of constitutional decisionmaking, living constitutionalism makes a great deal of sense. It also has the advantage of making sense of the actual history of our nation. However, understood as a doctrine for correct judging, "living constitutionalism" is an undertheorized concept. The claim that the Constitution must "keep up with the times" and "reflect changing values" is substantively empty unless you give an account of how and why it does these things and how doing so maintains its legitimacy. After all, there are many possible ways that one can "keep up with the times" and "reflect changing values."

Aiming this injunction at individual judges is largely misdirected. If you say that individual judges have a duty to "keep up with the times" or "reflect changing values" you haven't really said much. And to me, at least, it is by no means clear why individual judges have any such obligation or responsibility to "keep up with the times" or "reflect changing values" instead of doing what they are supposed to do, which is interpreting and applying the law the best they see it. And even if judges had such a responsibility, whose interpretation of "changing times" and whose version of "changing values" should they look to? To my interpretation or to yours? Should they look to the values of contemporary liberals or contemporary conservatives, because, I assure you, both sets of values are constantly changing, and both of them are doing their very best to keep up with the times. You can "keep up with the times" as a liberal or as a conservative, as a secular person or as a religious person, as a technophile or as a technophobe. You just do so in different ways. You can respond to changing times by changing your values, or you can respond to changing times by maintaining your values in the face of trials. The latter is what civil libertarians argue for all the time, and there are many living constitutionalists among their number.

Instead, a theory of living constitutionalism must explain why certain features of the Constitution may change while others must remain the same. And it must explain why those features that change do so in a way that preserves the values of constitutionalism, the rule of law, and democratic authority. To do this you need both normative and descriptive accounts of law and politics, because you first have to understand how the system changes. To be a living constitutionalist, you have to understand why the Constitution lives, not just advise it to shape up and live right.

Do Judges Do Law or Politics?

Schragger objects that my account "doesn't answer the question of whether the Court is actually engaged in making law." I disagree. It should be obvious from my account that the Court makes law all the time. Courts must think and act and in terms of legal forms and practices; they must make legal arguments and write legal opinions. Their job is not to do politics, but to do law. Nothing in what I have said suggests that judges should do anything but make law. They should be faithful to text and principle, and use the various modalities of argument-- text, structure, history, precedent, prudence, and ethos-- to decide the cases before them. They will disagree among themselves, often heatedly, but that by itself does not make the process of change illegitimate. Rather, this process of disagreement about the law over time– and the mutual recognition of opposing positions– is crucial to the legitimacy of change in the constitutional system.

Through doing law (not politics), successive generations of judges, working in tandem (and in opposition with each other), inevitably translate changes in constitutional politics into constitutional law. They do so because new judges replace older ones, and because the judges who hear cases and decide them are influenced and shaped by the constitutional culture that they live in. This culture includes not only professional norms of what is "off the wall" and "on the wall legally," but also popular notions of constitutional values which influence professional judgements. That is, living constitutionalism is an account of a process for producing change that preserves legitimacy in a democratic society and allows judges to continue being judges.

A theory of living constitutionalism can't just be a theory of the content of the Constitution because, if it is truly living, that content will change over time. And it can't be just a theory of how individual judges should behave, because in a multimember body whose members are appointed at different times and under different circumstances, the work product of judges may keep within the mainstream of legal culture, but it will probably not match any consistent academic theory of good judging. Rather, living constitutionalism is a successful theory if it shows how systemic change occurs in a way that preserves rule of law values, maintains the benefits of constitutional government, and is roughly responsive to democratic politics.

It is no accident, I think that public opinion polls repeatedly show higher confidence for the Supreme Court than for the other two branches of government, even as people regularly hurl attacks at the Court for particular decisions. Americans want their Supreme Court and the lower federal courts to do two things: to act like courts, who decide cases according to law, and to be responsive to larger trends in public values. By and large the federal courts do this, and that is the long term source of their legitimacy in the eyes of the public.

The Importance of Constitutional Dissent

One consequence of my account is that some individuals within the constitutional system will not always like what judges do, because the system will produce constitutional changes that they do not agree with. People, and especially liberals, often associate "living constitutionalism" instinctively with whatever is progressive, but I think that is incorrect. A constitution that grows and changes in response to social and political mobilizations is as likely to move to the right as to the left. Indeed, it has moved in many different directions in our nation's history.

The conservative dominance of the last forty years is an example of the process of living constitutionalism at work, even though many of its proponents have fought under the banner of originalism. There is no contradiction here. Appeals to the values of the framers or founders are a pretty standard way that people call for a restoration to proper principles. That is to say, appeals to origins are a pretty standard way that people justify constitutional change outside of Article V (and change within it too). I think it was Quentin Skinner who once said (or perhaps he was quoting someone else) that every revolution sends its troops marching backwards into battle. That is, they use the tropes of return and restoration to promote what is actually change. The conservative originalism of the past several decades has been an attempt to replace a more liberal constitutionalism with a more conservative one. In many ways it has succeeded. That is also an example of the processes of a living constitution, although not one many liberals like.

But, you might respond, suppose that I am a liberal and these forces have produced constitutional doctrines with which I disagree. Why should I recognize the legitimacy of this process? You should recognize it because it is the same process by which liberal constitutionalism made its contributions to our constitutional tradition. This is the point I made in my discussion with Dahlia. She doesn't like what she thinks the Heller Court is going to do. She is not in all that different a position than critics of the Warren Court.

I don't like some of the decisions of the courts. I think that some cases like United States Morrison (which struck down the Violence Against Women Act) are bad law. There are others that I really despise. But I must accept them as law while working to change them over time through processes of legal persuasion in the courts and political mobilization outside the courts. I can argue that these decisions are bad interpretations of the law, and work to distinguish them or overrule them, just as people who disagree with me can work to limit or overturn decisions that they do not like, such as Roe v. Wade or Lawrence v. Texas. Faced with a deeply unjust decision, Dred Scott v. Sanford, Abraham Lincoln once said that Dred Scott was law, and should be respected until it is altered or overturned, but "we mean to do what we can to have the Court decide the other way." Here Lincoln articulated the basic premise of a living Constitution as a process. The Supreme Court's decisions deserve respect as positive law, but not respect as proper interpretations of the Constitution, unless, in fact, they are the right interpretations. People can and should work to overturn decisions that are false to the Constitution's spirit, and to its text and its principles, through political mobilizations, through the appointments process and through legal arguments directed at judges and legal officials.

Liberal and Conservative Living Constitutionalism

Liberals like myself must recognize that in a conservative era, the positive constitutional law of a living Constitution will become more conservative. That is also how the Constitution "keeps up with the times" and "reflects changing values." I must accept these decisions as law, but I need not accept them as correct. Living constitutionalism means that I can always dissent during "dark times" when my views are in the minority. I can try to persuade other people that my views are correct and work for the restoration or the redemption of constitutional values. Through this agonistic process of mobilizations and countermobilizations of groups seeking the restoration and redemption of Constitutional values the Constitution maintains its public acceptability. As my colleague Reva Siegel has pointed out, both sides must appeal to common values and common political goods in order to persuade the public that their views are correct. In the process, they acknowledge and incorporate aspects of each others' views. Contemporary liberal claims about the Constitution have been shaped by the conservative constitutional culture of our era, just as today's conservative constitutionalism reacted to and absorbed important features of the more liberal constitutional culture that preceded it.

What I have said will sound strange to many people, including many liberals, who have worked on the assumption that a theory of living constitutionalism must have two basic features: First, it must look like a mirror image of what they imagine originalism to be: a theory that offers advice to judges about how to do their jobs correctly and decide individual cases. (In fact, as noted above, originalism is also a theory of the legitimacy of the political system.) Second, it must lead to generally progressive results. I think neither assumption is correct. There are versions of living constitutionalism that offer substantive advice about how to decide cases, like John Hart Ely's process protection theory, or Ronald Dworkin's moral reading of the Constitution, or Stephen Breyer's theory of active liberty, or heck, even my own theory of text and principle. But a theory of living constitutionalism needs more. It needs a theory of legitimate change in a system that is ultimately not controlled by individual judges but by the interaction of different parts of the political system. It is, if you will, a structural argument about the nature of the constitutional system. And what could be more internalist than a good old fashioned structural argument?

To those who know something of my earlier work, these conclusions will not be all that surprising. Previously I argued that original meaning originalism, correctly understood, is not necessarily conservative in its implications. Now I'm arguing that living constitutionalism, correctly understood, is not necessarily progressive either. A lot of theories experience ideological drift; it's my job to show you how the river runs.

Posted 6:00 AM by JB [link]

Comments:

Can't your position on the Living Constitution be described in three words: "Evolution NOT Revolution"?

# posted by

damonk : 9:01 AM

PARTICLE PHYSICISTS AND THE “BIG BANG” COMPARED TO CONSTITUTIONAL SCHOLARS AND ORIGINALISM

While particle physicists are of the view that the Universe continues to expand, they continue to look back light years to the “Big Bang” for its origins. Meanwhile constitutional scholars seem to split into two ranks, one group looking back to 1787-9 for variations of originalism of the Constitution while the other group focuses upon a living Constitution. Physicists look back and forward with the benefit of the scientific method and lots of expensive research to address the past measured in light years, the present and the future. Particle physics has underway an expensive research program in Europe with the Hadron Accelerator to learn more about the past, present and the future. (A dyslexic might wonder why so many millions are being invested at a time when Viagra works well, subject to certain side effects some may consider unfortunate.) If only constitutional scholars could avail themselves of the scientific method, perhaps they could better define constitutional issues we face.

I am not suggesting that the Constitution and its Amendments are the equivalent of the “Big Bang,” but it continues to be explosive. If fact, many are up in arms currently over the Second Amendment. Perhaps the Heller decision may be constitutional law’s “Big Bang.” But one thing that is clear is that the Constitution (like the Universe) is expanding despite, or because of, the battles between the originalists and the living constitutionalists.

# posted by

Shag from Brookline : 10:49 AM

I just have to say that this series of posts is brilliant. They're why I read this blog.

# posted by

Mark Field : 11:37 AM

Shag wrote:
A dyslexic might wonder why so many millions are being invested at a time when Viagra works well, subject to certain side effects some may consider unfortunate.

Because its the Hadron Accelerator, not the Hadron Fixer...

# posted by

bitswapper : 11:47 AM

Doesn't Viagra accelerate ... ? Not that there's anything wrong with that.

# posted by

Shag from Brookline : 1:27 PM

And here's a definitive takedown of the view (expressed in the last couple of comments threads on this issue) that the conservative Supreme Court justices are neutrally applying originalist principles, by Cass Sunstein, who knows a lot more than most of us on these comment threads do:

http://blogs.tnr.com/tnr/blogs/open_university/archive/2008/03/23/clarence-thomas-is-not-mr-constitution.aspx#comments

# posted by

Dilan : 5:58 PM

Could I raise a specific question about your abortion article? I agree with your take on originalism (though I'm not so sure that equal protection is a better way to get at abortion rights than substantive due process), but assuming that abortion bans violate some constitutional right, how should a judge decide whether protecting fetal life, viable or not, is a compelling state interest without ultimately just drawing on whatever view he has of the value of fetal life? Is there any value-neutral way to tease that out? The Constitution certainly doesn't give any guidance; it's clear enough that fetuses aren't constitutional persons, but the state has perfectly legitimate, even compelling, interests in protecting all sorts of organisms that aren't persons. (Indeed, some of your arguments for fetuses not being constitutional persons could be applied to infants; for example, infants can't incriminate themselves any more than fetuses can.)

# posted by

tray : 7:54 PM

I sometimes wonder if you think Article V a dead letter; There doesn't seem to be much recognition that you can change the Constitution by actually changing the text to say what you want it to mean.

# posted by

Brett : 2:28 PM

Dear tray:

It's a great point, and I've tried to address it in two places. One is in my edited collection, What Roe v. Wade Should Have Said, and in the follow up article to the piece you mention, called Original Meaning and Constitutional Redemption, which you can get on SSRN.

# posted by

JB : 11:13 PM

Well, I looked over your argument very briefly, but my response to the first point you make would be that you're holding compelling interests to an unduly high standard, or at least, one that I don't think is typical of how the Court applies strict scrutiny. (Maybe it's a fine standard that the Court should adopt, but that's another matter.) Take diversity in Grutter. A compelling state interest, we're told. But in a hypothetical world where every minority applicant had a LSAT below 156, there wouldn't be very much diversity going on at Michigan Law. A compelling state interest would bow to LSAT scores. (In fairness, Scalia made much light of the majority on this point, so maybe this is the mistake that proves the rule.) Mediocre LSAT scores aren't exactly comparable to the kinds of exceptions abortion bans have, like the health of the mother, rape, or incest. Remedying the effects of racial discrimination in contracting is another compelling interest the Court has identified, if only anyone could ever prove a history of said discrimination. Would we question how compelling the asserted interest really was if the set-aside plans that came to the Court said that you didn't have to do business with a minority subcontractor if his bid was four times higher than the next lowest bid or if he violated arcane federal contracting rules? I strongly doubt it. Compelling interests don't have to take precedence over all other interests to be compelling. Of course, they can't be taken too lightly or we will have reason to doubt the state's sincerity, but the state's allowed to balance them with the pursuit of other objectives.

# posted by

tray : 4:01 AM