Sunday, September 25, 2005

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 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.


Simon said...

Just to clarify - both Scalia and Bork have gone to great pains (see A Matter of Interpretation and The Tempting of America; I don't have them to hand to give page cites) to explain why their jurisprudence not only is original meaning, rather than original intent, but why original intent is incoherent and absurd.

Of course, I don't think Balkin's jurisprudence is compatible with the original intent OR the original meaning, and I find it telling that he wasted most of his recent Slate article attacking a straw man of original intent. He has, as Bork once put it, demolished a theory that is not only indefensible but undefended, much to the bemusement of the onlooking originalists. But Balkin is an extremely smart guy, and so I'm sure he knows the difference, which leaves only the conclusion that his goal is to conflate original intent with originalism more generally in the minds of readers who don't know the difference, in order to make criticisms stick that would otherwise have no traction. Clever, but disingenuous.

I actually agree with you in castigating Bork's willingness to erase the ninth amendment and the P&I clause of the fourteenth (the widely-maligned, and invariably misunderstood or misrepresented "ink blot" comment in TToA). I for one (Hugo Black for two, IIRC) buy into incorporation via the priveleges or immunities clause. But one thing I would note is that it troubles me when people suggest not only that the ninth amendment means something (I agree it does), that it is very important (I agree that it is), but that it therefore MUST protect unenumerated rights (which is a ludicrous non sequiter), and any person or interpretation that does not so hold must therefore be holding that the ninth amendment is meaningless (which is an even MORE ludicrous non sequitur). In my view, the ninth and tenth amendment have very important functions in spelling out the scope of the bill of rights and the federal government, but this does not mean that the ninth creates a pool of Federally justiciable rights, any more than the due process clause creates a right to free contract. There are some pretty good theories which try to incorporate unenumerated rights into originalist methodology; see e.g. J.D. Droddy, ORIGINALIST JUSTIFICATION AND THE METHODOLOGY OF UNENUMERATED RIGHTS, 1999 L. REV. M.S.U.-D.C.L. 809. But while they make interesting reading, I'm not convinced. That doesn't mean I agree with Bork, it doesn't mean that the amendment means nothing, it just means that the Framers may have had more pressing concerns on their minds than the creation of a constitional right to whatever the kids are into these days.

Anonymous said...

Your understanding of "Original Meaning" seems to carry a very similar problem with a common approach to "Original Intent". The definitions require looking at particular expression of meaning or definition. Words carry common dictionary definitions, but your approach goes far beyond the dictionary definition (as it must).
You define speech as "words and pictures". This is certainly not the dictionary definition, and I doubt that it would have been the common understanding of the word in the 18th century. To define "speech" as something other than "oral communication" it is then necessary to consider the understandings of particular Framers or writers of the period.
Any Originalist consideration of pornography has to answer Hugo Black's simple claim that there pictures are not speech. Certainly they are not an "oral communication" and more broadly, they do not seem to fulfull the same purposes as oral communication (i.e. conveying information and ideas). (Of course, a First Amendment analysis must also consider whether those pictures are protected as the product of the "Press", which may also demand more complex analysis than simply looking at dictionary definitions.)
In speaking a "dictionary definitions", it is probably necessary to recognize that the term may be metaphorical since lexicography was in its early stages when the U.S. Constitution was drafted.

Chris said...

Excellent points. I have an article including a version of a number of the same ideas using the philosophy of language to distinguish meaning from application, and advocating a half-dead, half-living Constitution. Please let me know what you think.

Clayton said...

You observe that: "For instance, the 14th Amendment never uses the word 'race,' although we know that race was one of the central concerns of that Amendment."

This is a valid criticism of a textualist interpretive model, but not of an originalist model. We know what the objective of the 14th Amendment was from the debates about it in Congress. We know that the goal was to prevent the former Confederate states from denying the rights of blacks, and to a much less extent, of carpetbaggers and scalawags.

In any case, there is no evidence that the equal protection clause was intended to protect the class to which you seem intent on applying it. I dare you to find me a single example of anyone, when the 14th Amendment was under debate, arguing either for or against it on the grounds that it would force repeal of the many existing laws against homosexuality.

The strongest analogy that I can draw would be to argue (as I have seen liberals argue) that the 13th Amendment prohibits the draft, because military conscription is involuntary servitude. From a textualist standpoint, this is true. But the Union had used military conscription during the Civil War, and there is simply no evidence that anyone who supported or opposed the 13th Amendment thought that "involuntary servitude" included what was generally recognized as a male citizen's duty to perform military service.

Jonathan said...

"I dare you to find me a single example of anyone, when the 14th Amendment was under debate, arguing either for or against it on the grounds that it would force repeal of the many existing laws against homosexuality."

One of the larger points of my post was that the assumption under which you operate -- that the framers or ratifiers had to consciously "realize" that the adoption of general provision X (the 14th Amendment) meant that specific practices Y (sodomy laws or whatever) were now unconstitutional -- is not the *only* legitimate way to interpret the Constitution. I think Balkin refers to this as "Original Expectation Originalism," (his exact words: "arguing instead that we are bound by the expected application of the text at the time of its adoption") a form of originalism which not only do I reject, but that Balkin has proven is not consistently supported by such defenders of originalism as Bork, Scalia (and even you Clayton).

For instance, whereas we can argue about Brown and Original Expectation, we cannot do so about Loving. As I have written here, not only were the framers of the 14th Amendment not aware that they were outlawing state bans on interracial marriage, but the Amendment was ratified by the states upon the specific reliance on words of the framers that they were NOT outlawing such bans.

You could reply then, but the Framers were, as a more general matter, concerned with racial equality; but you have then just moved up a level in the analysis to a more general level of abstraction. Why stop at that level? I'll concede that the Framers of the 14th had race (and to a lesser extent religion) in mind and sexual orientation completely out of mind; but they also had gender completely out of mind as well (an issue Balkin deals with in his post). To get to the point where the 14th Amendment's "Equal Protection" of the laws protects gender or sexual orientation, you must move up an additional step on the ladder to an even higher level of abstraction. But we are still applying the general principles of equality and non-discrimination embodied in the 14th Amendment.

If we have to throw out the gay rights decisions (Romer, Lawrence) as being inconsistent with originalism, we also certainly have to throw out gender decisions of the 1970s and we should probably throw out Loving as well. Would you do that Clayton?

Jonathan said...


Thanks, I'll check it out.

Jonathan said...

Okay Anonymous. Let's say that we conclude that only "oral communication" and not "pictures" is "speech." What if someone makes or sells a tape of readings of the Penthouse Forum, graphically describing what goes on in pornographic movies.

If that's "speech," the neither the text of the Constitution, nor the general definition of "speech" as "oral communication" distinguishes between that and any other type of oral communication that we would expect to be protected.

Jonathan said...

Simon: I know both Bork and Scalia have stated they don't defend "Original Intent," that, to use Bork's example, if a secret letter from George Washington were uncovered demonstrating that he thought a provision of the Constitution meant Y, when it really doesn't seem to say that at all, it would prove nothing.

However, both Bork and Scalia do seem to defend what Balkin refers to as "Original Expectation Originalism" where we look to the collective of Framers and Ratifiers and only narrowly apply the specific expected application of the text at the time of its adoption. Balkin, I think, has aptly demonstrated this theory to be both untenable and also not consistently defended by Scalia and Bork as well (you'd have to go to someone like Raoul Berger for that).

Scalia does have an interesting theory: that where the text is broad and general and even if the Framers & Ratifiers didn't understand the text to protect that specific right, if the right is nonetheless, "deeply rooted in this Nation’s history and tradition,” it can become a constitutional right.

Now, this is an interesting theory (it's good that he has one) and it is no less valid than any other. But, keep in mind, the text of the Constitution doesn't mandate this theory. Therefore, Scalia's theory is just one legitimate modality operating along side of others.

What bothers me about Scalia, Bork, Clayton, et al. is when they argue that their theories represent "the actual Constitution" to use Bork's words and are somehow more legitimate, when they aren't.

Daniel said...

Jonathan said...

Okay Anonymous. Let's say that we conclude that only "oral communication" and not "pictures" is "speech." What if someone makes or sells a tape of readings of the Penthouse Forum, graphically describing what goes on in pornographic movies.

I respond:

I include only "oral communication" because I am trying to apply a fairly strict definition of 'what the words mean.' The generally understood definition of "speech" is "oral communication" and I think that was true in the 18th Century.

Addressing your example, using my definition (or the somewhat more expansive example I used), I would have to respond that the oral (or recorded) explicit description of the pornographic pictures is speech but the pictures themselves are not.

I like your challenge because this is obviously somewhat paradoxical. My first defense is that any principled approach will create some distinctions without a real difference.

But if the somewhat expanded (and less strictly literal definition of speech is used), I think a sensible distinction can be reached. That is, "speech" may be understood, in its Constitutionally protected meaning, as oral communication or another communication meant o serve the same purpose, which is to communicate information or ideas, and I should also add emotions, feelings, expressions. The is consistent with the fairly established Constitutional definition of obscenity. If pornography serves a literary, artistic, political, or scientific purpose, (that is, if it serves the same essential function as speech), then it is not obscene and it is protected.

If the pornography does not serve any of these purposes, that is, if it conveys nothing but sexual stimulation, then it is not so much "speech" as a sex toy. There is much to be said against prohibiting such pictures, but I find the Constitutional argument to be weak.

My broadening of the definition of speech still leaves room for paradoxical results. Certainly you could tell me a story that has no meaningful purpose or value except sexual stimulation. This is certainly "speech" by any accepted definition so should be protected. Similarly, printed words, although not literally "speech" are, in effect, the same thing, so entitled to the same protection. I distinguish the pictures simply because they do not fit any generally understood definition of speech, nor do they fit a close analogy to speech. I realize that my claim with respect to the analogy is very subjective.

My purpose in addressing the law of obscenity was not to defend prohibition. It was to point out the difficulty of "original meaning," which I find very close to "strict construction." I think the approach is reasonable, but leaves the danger of finding our own meanings or definitions where we want them. Outside of a discussion of the First Amendment, who would define "speech" as words and pictures?

Once we begin approaching the Constitutional text, we immediately start expanding definitions. To some extent, this is essential. I doubt that any of the Framers would have approved of a strict, unyielding literalism. But this necessary expansion is also the path to a free-wheeling approach in which Constitutional law is a matter of discerning the personal preferences of five out of nine Justices.

In the context of pornography, in the abstract, it makes more sense to me to use a fairly literal definition of speech (which I have not researched but I think was intended) but use a fairly expansive definition of the "Press". After all, when the Framers referred to the Press, they meant the printing press, which was available to pampleteers (individuals or groups of individuals) as well as newspapers. The printing press is readily analogous to any modern device which prints text and pictures.

I think we make a mistake in applying the freedom of the Press to the New York Times, but not to me with my printer, my neighbor with his photocopier, you with your blog, or Penthouse with its printing machines. The 18th Century press was free-wheeling enough to include similar situations to all of these. We define them as speech because we sense that they should be entitled to broacd protection, but our understanding of the Press is far narrower than the 18th Century understanding. If we used athe "original meaning", then it would have limited relevance whether we used a broad or narrow definition of speech.

The only place where I would see a need for more than a very literal definition of speech is in the protection of communications directed to a small number of people (since it would not be a "Press" function). But this should be contained within the slightly broadened definition, since most such communications are serving the same essential function as "speech". Perhaps the only gap would be pictures which are taken not for circulation; leaving the silly result that the same pictures could be protected if Penthouse (or I) circulated 100,000 copies, but not if I took them to keep at home. Or maybe, since the 18th Century press included woodcuts (I think), the photo printer should be included as similar (or the analogous digital image).

Daniel said...

Excellent blog, by the way. I came to this post via Volokh, but have explored some of the other, very interesting, posts.

Jonathan said...


Thanks and excellent comment.