The "Living" Original Constitution:

The notion of a "Living" Constitution is often directed as a charge against out of control "liberal" activist judges. However, some jurists embrace the term "living" as properly descriptive of constitutional interpretation -- most prominently, Jack Balkin. Recently Sandefur responded to Balkin's embrace of a "Living Constitution."

Sandefur asked "[A]re we going to be faithful to the actual text of the Constitution, or are we going to alter the public understanding, or even manipulate that understanding, so as to accomplish ends that some people consider politically desirable?" Interestingly, although Balkin did not (as far as I know) respond to Sandefur's criticism, Balkin has responded to another "originalist," Akhil Amar, who like Sandefur, endorses an "original understanding" that radically differs from the originalism of thinkers like Robert Bork (the archetypical "conservative" Original Intent jurist).

Balkin notes the difference between his "living" Constitution and the "originalism" of thinkers like Amar (and presumably Sandefur, Randy Barnett, and others) may be more semantical than substantive. Indeed, both Barnett and Sandefur as "originalists" have endorsed the Lawrence outcome. And the Robert Bork types of originalists use that case as a hallmark for the "living Constitution" of "activist" judges (in other words, if you endorse Lawrence then you endorse "judicial activism" and a "living constitution" regardless of how you label yourself).

Many "originalists" of the conservative bent (Scalia) stress the text of the Constitution as the ultimate authority. Balkin doesn't disagree (and neither do I). However, there is remarkably little law written in the actual text of the Constitution. And many provisions of the Constitution are written in such broad generalities that they potentially apply to an almost infinite number of specific factual scenarios. So when a court is charged with applying a specific factual case to a broadly worded constitutional text, it inevitably will have to formulate doctrine -- words and rules not found in the text -- to "fill in the gaps."

This is why the remark we hear coming from some "conservative" originalists (forgive me, I mean not to smear all or even most conservative judicial thinkers, like John Roberts. I just don't know what label to give members of the idiot right like Mark Levin), "the Constitution doesn't say that" is just a stupid retort. For instance, the 14th Amendment never uses the word "race," although we know that race was one of the central concerns of that Amendment. A doctrine formulated from the Amendment is "government cannot discriminate on the basis of race...." But, "the Constitution doesn't say that!" It simply says, "Nor shall any State deny to any person within its jurisdiction the equal protection of the laws."

Kermit Roosevelt, guest blogging at Balkin's site, gives a textbook example of the impotence of the critique, "the Constitution doesn't say that." Directing his comments at "conservative originalist" Mark Levin:

Levin says, for instance, that Plessy v. Ferguson is activist because it upheld a state law (racially segregating rail cars) that violated the plain text of the Constitution, and that Eisenstadt v. Baird is equally activist, because it struck down a state law (denying contraceptives to single people) even though the text of the Constitution doesn't say that married and single people must be treated the same. The text in each case is the Equal Protection Clause, which prohibits states from denying "the equal protection of the laws." It doesn't say anything about marriage, but in fact it doesn't say anything about race, either. The plain text simply doesn't tell you very much about what kinds of discrimination are prohibited. You need some kind of theory for that, and Levin doesn't have one.

More importantly, Balkin explains how his jurisprudence is compatible with "original meaning" originalism and not "original intent" (or a better term would be "original expectation") originalism.

Now look at Akhil's reading of Brown v. Board of Education. For Akhil, the key question is not whether the framers of the Fourteenth Amendment thought that segregation of schools and other facilities was constitutional. What counts are the *principles* enunciated by the constitutional text....I can sign on to the idea that the purpose of the Fourteenth Amendment was to secure equality before the law for all citizens, and in particular between blacks and whites. I also agree with Akhil that the framers of the Fourteenth Amendment who thought that this principle of equal citizenship was consistent with segregated facilities were incorrect, and that we are not bound by their expectations about how the text would be applied in practice. Do we have a disagreement yet?

In other words, what isn't dispositive is how the Framers expected the principles to apply in specific circumstances. For instance, in adopting the 14th, the framers could ask "are we illegalizing segregated schools and bans of interracial marriages and striking down sodomy laws?" Arguably the answer to all of the questions is No. Original meaning doesn't ask the politicians who drafted the words how they expected those words to apply. Nor does original meaning try to ask "the people" as a whole who ratified the words how they expected those words to apply. Rather original meaning asks what "the people" would understand those words to mean in a dictionary definitional sense.

This is important. Let's focus on the Declaration of Independence. The words state "All men are created equal." The original intent of the Framers might ask, "how did Jefferson, Adams and Franklin, understand and expect those words to apply?" Did they, for instance, think blacks are covered under the norm? If we asked instead, how did "the people" expect those words to apply, arguably we get an outcome that is far more illiberal than asking the Framers that question. Jefferson et al. because they were more reflective than the average Joe of the Founding, arguably did think that blacks had rights under the Declaration and were thus very troubled by the institution of slavery. Your average Joe of the Founding thought "all men are created equal" meant "all white Protestant Males" were created equal. But again, regardless of how the average Joe expected the words to apply, the Declaration doesn't say that. It makes no distinction between blacks and whites. Original meaning would instead ask what did those words generally mean in a dictionary sense. For instance, "All" meant "every"; "men" arguably meant "mankind" (which term would include women with men) or "human beings," and "equal" meant, not "equal in abilities" but rather equal in deserving certain basic rights which governments are in the business of securing. So as a matter of logic, we would ask not, "did the Framers or the people" think that blacks and women had equal rights under the Declaration. The answer is arguably "NO"; but rather, "are blacks and women human beings?" And the answer to that is most certainly yes. Thus blacks and women by nature are entitled to "equal rights."

I think Balkin's sentiment here parallels my analysis of the Declaration:

That's because focusing on the original meaning of the text requires that we focus...in the context of what the words chosen by the framers and adopters are trying to convey. So Akhil would argue that the purpose of the Fourteenth Amendment is to secure civil equality before the law for all citizens, and the purpose of the due process and equal protection clauses is to extend basic rights to persons who are not citizens. Again, this seems right to me. Original meaning requires a focus on underlying principles which are to be derived from a study of the historical record. History counts. It also allows (or even requires) supplementation by structural principles. And finally, it also allows the interpreter to reason from past precedents if they are reasonable ways of fleshing out the meaning of the constitutional text and the principles that underlie the text. Those precedents need not be consistent with the original expected application of the text if they better articulate the larger purposes of the Constitution.

Moreover, note that Akhil's method requires that sometimes you must read the purposes behind the text at a fairly high level of generality. Akhil's view is that the sex equality cases in the 1970's are correct because the Fourteenth Amendment's guarantee of civil equality, together with the Nineteenth Amendment's guarantee of suffrage secured equal rights for women. That is so despite the fact that there is evidence that the framers of the Fourteenth Amendment did not wish to disturb the coverture rules which effectively denied married women almost all of their civil rights, and the Nineteenth Amendment applies to voting, not to coverture. To reach this conclusion Akhil must construe the principle of equal citizenship and the principles behind the text of the Nineteenth Amendment at a fairly high level of abstraction; even if the framers thought the coverture rules were perfectly constitutional in 1868 such rules would be unconstitutional today. Again, I have no problem with this line of reasoning. But if one is willing to read constitutional texts in that (in my view enlightened) way, the differences between people who call themselves "originalists" like Akhil and people like me who believe in a Living Constitution start to vanish.

To be sure, there are plenty of people who consider themselves originalists, like Justices Scalia and Thomas, who would reject reading the Fourteenth Amendment at that level of generality, arguing instead that we are bound by the expected application of the text at the time of its adoption. Akhil, I believe, rejects that view. Does that mean that he is not an originalist? He would strongly disagree.

One final note, my definition of "Living" Constitution or "Activist Judges" -- the only one that I think makes coherent sense -- is blatantly disregarding the text of the Constitution. If for instance, a court were to say, "the President can be any age" that would be activist. Or to use a more real example of "cutting out" parts of the Constitution (on both the left and the right): The leftists who argue that the Second Amendment means nothing. And Robert Bork who wants to cut out the 9th Amendment and the Privileges or Immunities Clause of the 14th.

As Balkin would note, the "text" of the Constitution supports outcomes that are commonly associated with the "Living" Constitution. For instance, our free speech norm that comes from the First Amendment. The Amendment says "Congress shall make no law...abridging the freedom of speech." And constitutional doctrine has interpreted that as "government can't censor." The text makes no distinction between different types of speech. An original meaning inquiry might ask "what is speech?" and I think a proper answer would be "words and pictures." This would include newspaper articles, cartoons, movies, the radio, TV, the Internet, etc. So the question of whether for instance, hard core pornography is protected "speech" doesn't turn on "did the Framers expect this to be protected?" but rather, "is pornography speech?" and to that we would ask, "is pornography words and pictures?" and the answer is YES. The text of the Constitution makes no distinction whatsoever between the words and pictures found in say "CSPAN" or those found on "the Spice Channel." So the notion that pornography is protected speech is entirely supported by the text of the Constitution.