Interpreting Old Paper and New Feelings
Earlier today I participated in a debate on constitutional interpretation at my law school. What seems like long ago now, my friend Josh Rohrscheib and I once debated jurisprudence in the Daily Illini. In that article, I adopted the Ira Carmen position of essentially converting the judge’s role into that of a functional social scientist. Our own Lawrence Solum has a great description of Originalism, with a good summary of where the academic literature currently stands on it. I am going to invite the other three participants in the debate to contribute their thoughts to this post (Ken Logsdon, Jake Briskman, and Omar Jafri). Logsdon presented the pro-Originalist position, while I presented the rebuttal to Living Constitutionalism, which I have pasted below. I cannot defend Originalism, because I do not genuinely adhere to it, but I can attack the moral aristocracy created by Living Constitutionalism, which is what I do in the polemic that I delivered:
The problem with Living Constitutionalism isn’t so much with its fair and moderate reading of the Constitution, it is more so with its admittedly rare tendency to produce results which do not comport with the evolving standards of the community. This debate largely comes down less to that of interpretation and more to that of how we view the role of the judiciary in our democratic structure of governance. Living Constitutionalism is useless at its best and vile at its worst. It’s useless because mechanisms exist to channel and convert the evolving sentiments of the public into law. It’s vile because of the license it grants to a few justices to undermine democratic legitimacy by determining the scope of rights and of federalism. In 1987, Supreme Court Justice Thurgood Marshall delivered a lecture, “The Constitution: A Living Document,” in which he argued that the Constitution must be interpreted in light of the moral, political, and cultural standards of the epoch, which is essentially what is argued for here today. The question though is who gets to be the barometer of the contemporary moral, political and cultural standards? Our opponents propose that barometer be the justices in some cases, rather than the people themselves as expressed through their legislators. It’s a curious concept that a justice would be able to better divine the moral and political attitudes of an electorate than the statesmen elected to gauge that very subject. Rights are something we all enjoy that are so fundamental to who we are as a society that we have decided to remove them from the table of debate and to not allow democratic consideration of them. So I can see three basic mechanisms by which a citizenry can express its preferences for expanding into new avenues of constitutional rights and the balance of federalism: 1) What Ken has laid out through the PI Clause, which would maintain democratic legitimacy, 2) The usual legislative process, which is equipped with great fact finding tools that the judiciary is not equipped with, and 3) the Amendment process. Liberals should fear living constitutionalism as well.
Just as liberals like Hugo Black and Yale’s Akhil Amar can be Originalists, so too can conservatives forge new rights under the mask of living constitutionalism. When justices begin pulling rights down from the fleecy golden Platonic clouds (paraphrasing Carmen), it makes it possible for rights to collide. These Platonic pipelines to the ethereal truth begin running into each other. Suppose that you have Justice Alito come along and say I think that moral philosophy and my gauge of the evolving standards of the community tell me that all potential fathers should have an equal say in the abortion decision. 50/50. Suddenly we have contradictory positions based upon the same jurisprudence, and so rather than trying to persuade us to adopt living constitutionalism, you should be doing the opposite, you should be urging us to stick with Originalism, you don’t want us having that kind of power, trust me…just as we don’t want you having that kind of power either. It’s all well and good when living constitutionalism is employed by someone on your side, but it becomes pernicious and poisonous when someone who does not agree with you begins to employ it, which of course, under your framework, they would be free to do. Just think of Scalia’s smirking glee.
Rehnquist’s Living Constitutionalism article in the Harvard Law Review quotes Lincoln eloquently summarizing the frustrations of the electorate after Dred Scott, “[T]he candid citizen must confess that if the policy of the government, upon vital questions affecting the whole people, is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made, in ordinary litigation between parties in personal actions, the people will have ceased to be their own rulers, having to that extent practically resigned their government into the hands of that eminent tribunal.” The harm that CJ Taney inflicted upon the court’s reputation and judicial legitimacy took about a generation to repair, according to Rehnquist. Judicial decisions which usurp the democratic function have the effect of generally lowering the credibility of all subsequent Court decisions, after all, credibility is the force of the judiciary.
Probably the best analogy to Roe is Lochner. The right to contract is analogous to the right to privacy. The Social Darwinism and economic libertarianism of the day was thought by the justices to be the prevailing and evolving standard of the community. In his famous dissent, Holmes said, “The Fourteenth Amendment does not enact Mr. Herbert Spencer’s Social Statics. Some of these laws embody convictions or prejudices which judges are likely to share. Some may not. A constitution is not intended to embody a particular economic theory, whether of paternalism and the organic relation of the citizen to the state or of laissez faire. It is made for people of fundamentally differing views, and the accident of our finding certain opinions natural and familiar or novel and even shocking ought not to conclude our judgment upon the question whether statutes embodying them conflict with the Constitution of the United States. I think that the word liberty in the Fourteenth Amendment is perverted when it is held to prevent the natural outcome of a dominant opinion, unless it can be said that a rational and fair man necessarily would admit that the statute proposed would infringe fundamental principles as they have been understood by the traditions of our people and our law.” Lochner was an awful decision and a prime example of living constitutionalism employed by people liberals would disdain: economic libertarians. Holmes was saying that the Constitution defines the rules the game, the peculiar political philosophies of abortion or economics or biology are questions that ought only be answered by the legislatures. The Constitution does not purport and cannot sufficiently answer those political questions even when divined and decoded by the most eminent Platonic philosophers. Many living constitutionalists wish to disown Roe by labeling it as living constitutionalism misapplied or misunderstood, many pro-choicers admit that it is a bad decision. But you cannot disown Roe, without disowning living constitutionalism, you have to accept the good with the bad. When you grant that broad sweep of authority you fling open the flood gates to poorly wrought decisions.
Looking forward to inevitable Constitutional issues…biology and politics. The state should be able to stop a woman from giving birth to a zebra in the future, or to stop super human children from being born, which will absolutely be possible in our lifetime, ehh I’m not sure about the zebra, but the Einstein+Michael Jordan child is reasonable. It is a small constitutional step from Roe to a future justice saying, “A woman has the right of privacy to do what she wants with her body regarding biological manipulations of a fetus.” Of course, such engineering would have enormous effects on society at large and would not just affect the woman and her privacy. When you expand the breath of rights guaranteed us you risk building a foundation for future rights that may disquiet and discomfort you.
This is not to say that Originalists cannot disagree. During “the court’s 2003-2004 term, Scalia and Thomas voted together in only 73 percent of cases, and six other pairs of justices agreed with each other more often than Thomas and Scalia did.” The key however is that is narrows the band of discretion allowed a justice, which if you view the band of discretion as straddling the line of the best outcome, then reducing the variance will tend to produce results closer to the best outcome a greater percentage of the time.
The Judiciary is a bastion of unwavering law. The legislature is a bastion of wavering law. If liberals were happy with the legislative outcomes of this country, they would have no use for living constitutionalism. Living Constitutionalism is an expression of liberal legislative frustration. Frustration that the rest of the country doesn’t envision the same vast panoply of rights. Living Constitutionalism states that sometimes the democratic process breaks down and is incapable of properly guiding the country, which is ultimately a theory that states “these people don’t know what’s best for them and so the educated elite need to dictate it to them because they will eventually, in 20 years perhaps, realize that it’s best for them.” The problem is, that they could be wrong about the proper moral and social avenue for America. When you grant a justice the authority but not the fact finding tools to act as a legislature, it seems to me that you unnecessarily encroach on the legislative territory. I beg for examples as to when this encroachment would be necessary given the Originalist framework we have proposed.
Comment by Brian on 11 April 2008 at 10:19 pm:
Billy,
Great post. It’s interesting to see you flirting with Originalism here, though it also seems that you haven’t totally converted, seeing as how you quoted Holmes as opposed to, say, Scalia.
Obviously there’s a lot to argue about in this debate, but one thing I’d like to say is in response to this sentence, which is a central point in your entire argument:
“When you grant that broad sweep of authority you fling open the flood gates to poorly wrought decisions.”
I don’t actually disagree with that in any real way. “Broad sweep of authority” and “fling open the flood gates” are, I think, rhetorical exaggerations, but whatever, the central point is still correct. Your example of Lochner is a good one. One of the major differences between Originalists and Living Constitutionalists, I think, is the degree of danger we see in these “poorly wrought decisions” and the ability to correct them.
Lochner was clearly a bad decision. You might be able to convince me that Roe was too. But these decisions, despite being made by the Supreme Court, are still not permanently set in stone. They cannot be overturned by a majority of a legislature, true, and therefore judges do need to narrow their scope of analysis to some degree. But justices to the Supreme Court are replaced, and if there is enough of a need for a decision to be overturned, it will be, or will be limited to its facts or in some other way hollowed out by a subsequent decision. The beauty of Living Constitutionalism is that it makes this process of revision and evolution easier, rather than forcing the mode of analysis to be set in stone by the entrenched values of the 18th century.
So, yes, Living Constitutionalism will produce some bad decisions. But in a world that embraces Living Constitutionalism, the negative consequences of bad decisions are more easily blunted than in a world that embraces Originalism.
I would also argue that Living Constitutionalism produces fewer bad decisions than Originalism in the first place, but I’m gonna go to bed now and can maybe pick that argument up later.
Comment by Billy Joe Mills on 12 April 2008 at 7:55 am:
Brian,
Thanks for the comment. I understand what you’re saying, and I do have great sympathy to the flexibility of living constitutionalism. But I am persuaded by the fact that it is difficult to think of cases that deal with politically divisive issues that the courts are better equipped than the legislature to handle. Brown v. Board, it is sometimes argued, would have been impossible under an Originalist framework, but it boggles me that a fair reading of the Reconstruction amendments would produce any results besides Brown.
Responding to your argument
Dred Scott took a huge bloody war to overturn it, Plessy took 58 years to overturn, and Lochner took 32 years to overturn, which I hardly see as acceptable timelines for judicial self-correction. This country has existed for 232 years, that means that Plessy dominated 25% of our history and Lochner dominated 13.8% of our history. Roe, if you consider it a jurisprudential cancer, which I think it can be fairly called by both liberal and conservative scholars, has an indefinite life and dominates an undetermined share of our history. Perhaps my most original contribution, though I doubt it’s original at all, is the paragraph on the fears of future genetic engineering. Roe’s right to privacy created a great potential for collateral damage, by serving as a potential foundation for future rights that even liberals would considering revolting. Creating new rights is a dangerous alchemy.
Comment by Hanno on 12 April 2008 at 8:32 am:
While I agree with you that creating new absolute rights is a terrible idea – hell the American conception of unqualified, absolute rights is plain retarded – I’m not sure Originalism is a per se better way to go. You could argue for judicial restraint, separation of powers, limited judicial intervention, etc. The problem with originalism as I understand it is that it’s really a sort of imaginary reconstruction.
It tends to fall into two broad categories, original intent and original meaning. Original intent is total bullshit because there is no way we can divine the original motivations and intentions of forty six men. Original meaning faces similar problems. Of those forty six, thirteen left the convention early and didn’t sign and three refused to sign at all. So we’re really left with the intent of about thirty. Granted thirty people is a relatively small group, but can we ever get thirty people to agree to the precise definition of anything? I tend to think the document was left ambiguous to avoid conflict and for later interpretation. But going off of what we imagine 30 guys in 1787 intended or meant seems a bit strange.
Comment by Hanno on 12 April 2008 at 8:38 am:
As a couple of additional thoughts that I neglected in the original post. The original meaning of the words of the constitution would have guaranteed no rights to women. Even if we take into account the 19th Amendment, women wouldn’t by the text, be guaranteed any rights men are except the right to vote. All of those “men this men that” in 1787 would mean “men” not “women and men” not “women and men and persons of color.”
Comment by Brian on 12 April 2008 at 8:54 am:
Billy,
Neither Dred Scott nor Plessy were failures of Living Constitutionalism. They were just bad decisions. But it’s not like the justices in those decisions hinged their reasoning on the evolving norms of the community. Plessy, indeed, was an act of judicial restraint – legislatures had the ability to eliminate segregation if they wanted, they just didn’t do so until the Supreme Court said they had to. And while I’m not a historical expert, I’m highly suspicious of the claim that a fair reading of the original intent of the framers of the 14th Amendment was that they wanted to eliminate segregation by what they were doing.
In terms of examples of instances where the courts are better equipped than the legislatures, I would point first and foremost to the equal protection clause. The entire reason that clause exists is because we know that minority communities will often times be unfairly discriminated against. BUT, the original intent of the framers of that clause was to protect blacks. Should we not take into account the evolving standards of our community so that we can include women, gay people, etc.?
It also just seems to me that the original intent of the framers in many cases was to allow for flexibility of interpretation based on evolving norms. It would be silly to interpret “cruel and unusual punishment” or “due process” under 18th century standards, and I doubt the framers would have wanted us to do so.
Comment by Brian on 12 April 2008 at 9:00 am:
Also, while the equal protection clause is a more obvious and more commonly argued example of when Living Constitutionalism is important and useful, I would also argue that all of the criminal justice protections are good examples as well. We see every day how legislatures are incredibly bad at protecting the rights of suspected criminals for fear of looking soft on crime, soft on drugs, or soft on terror. Judges are often better able to ensure the protection of those rights, and evolving norms have to be taken into consideration because of the evolving nature of police practice and of crime.
Comment by Billy Joe Mills on 12 April 2008 at 9:15 am:
Brian,
What is to stop other mechanisms that are already in place, like the amendment process or the legislative process, from altering our conception of the Equal Protection Clause to cover women or sexual preferences? It would seem to me that you wish to import those political questions, namely the sexual preferences one, into the judiciary, which is more poorly equipped to handle that decision and is not a democratic institution, yet you wish for it to answer a democratic question. You know that I agree with you, I believe that sexual preferences SHOULD be covered by the Equal Protection Clause, but I would not seek to do so by shoving it down people’s throats by acting as a moral aristocrat, a.k.a. a judge. I would seek to amend the EPC either through the Article V amendment process or by getting Congress to pass a law which has the same effect. Your desire to create rights or to expand the EPC is a product of liberal frustration with the American populace, and less a cogent and coherent jurisprudence. What I’m saying is that liberals have sought to circumvent the usual political process and they disguise this circumvention in the cloth of “living constitutionalism.” We need a complete re-assessment of what is and what is not within the province of the judiciary.
Dred Scott is an example of living constitutionalism, Rehnquist lays out the argument in the Harvard Law Review article that I cited in the speech. It is the kind of LC decision that you hate, I’m sure, but you must accept it as a necessary risk in the collateral damage that ensues from opening the flood gates that I mentioned.
Hanno,
As I alluded to at the beginning of my post, I’m not really here to defend Originalism. I’m not a huge fan of it. My role in the debate and my goal here is to assault living constitutionalism.
I agreed with this statement, “You could argue for judicial restraint, separation of powers, limited judicial intervention, etc.” Those principles are built into what I would call the Carmen-Holmes-Frankfurter-Social Science jurisprudence…expounding that jurisprudence would take an entirely new post, which I may find time for someday.
Comment by Hanno on 12 April 2008 at 9:23 am:
Oh I know you aren’t promoting originalism, I was just critiquing it.
Comment by Matthew on 14 April 2008 at 2:45 pm:
I’m not one to normally participate in these kind of discussions. But because Billy’s my roommate and we’ve talked about this a lot I feel like I should chime in.
I’m not really a defender of the living constitution way of jurisprudence but I think there’s something to be said for it.
I think its important to realize that in a forming of a society, some individuals’ liberties will necessarily be curtailed. Most of these curtailed liberties we don’t even think to raise a fuss about because most of us can recognize they’re a necessary cost to living within a functioning society. However, when the founders of the US were forming this democracy, they recognized the undesirable elements of it, such as majoritarian rule. Thus, with the bill of rights, they listed liberties they felt should not be left to political will. Much of these were thought of from their experience with British rule. They also felt that they could not account for all of the liberties they enjoyed and what liberties may be endangered in the future. So they included the 9th amendment in the bill of rights.
I say all this to stress that the founding fathers included a bill of rights because they felt that these liberties were not political questions, but rather fundamental to being a human and should be protected against from government will.
I think the problem with finding a proper modern individual rights jurisprudence lies here: individual rights are meant to be apolitical. If protected individual rights are meant to be outside the hands of the political system, it leaves us no method for finding any other fundamental rights. It is easy for us to point to the Bill of Rights as the end all be all list of protected liberties because as originating documents they have a strong feel of justification. However, the founders explicitly stated that they could not account for all of the liberties and as we have come to realize today, it does not account for all the future liberties that we might hold dear.
I think an important theoretical question we have to answer to really parse out these debates of fundamental rights jurisprudence, is whether there are certain individual rights that are fundamental in a platonic sense, or if individual rights and the desire for these rights are at the whim of a society’s preferences.
Our founding fathers appear to have believed in the former. What that leaves us with is the dilemma of finding and protecting individual rights that act as a shield against the political process that is assumed to be detrimental against them. For this process, the judiciary seems the most apt, being that they are the least politically involved body and because constitutional interpretation and the enforcement/protection of individual rights is essentially legal endevours.
Concerns of whether a judiciary’s decisions on what our society values are justified are indeed big concerns. Who is this old person to say what I or the person next to me values. However, given that some of us and the founding fathers recognize that there are fundamental human rights that do not have a textual foundation in the constitution but are integral to a free society, and the fact that these rights are meant to be independent of the political system, it seems that judiciary is the best vehicle we have.
Anyway, what I think I’m trying to say is that the finding of fundamental rights is not supposed to be a political inquiry. They are meant to protect liberties that the political system may not come to protect by its own accord.
The pressing question then becomes whether you believe there is a realm of rights that it is outside the political sphere. If you do, you must find a process of finding them that accounts for how those liberties may be affected by changing times. I don’t see any other process besides a Supreme Court using living constitution jurisprudence that is better.
Billy, I’ve heard your thoughts on a jurisprudence based on social science and statistics which might turn out to be a great option, however, at first blush I don’t see the difference between a jurisprudence based on social science and the living constitution theory as it exists today.
On the other hand, if you don’t believe in a realm of rights outside of the political sphere, as I do, then the culling of fundamental rights by a judiciary doesn’t make sense and you effectively leave the rights and liberties of individuals in a society in the hands of the political system.
I justify my rejection of the living constitution on this premise. However, there are attendent undesirable stances that come with it. Most notably it would reject the decisions that serve as hallmarks of the civil rights progress we have enjoyed today. In defense of this opinion though, I would say that decisions such as Brown v. Board and other civil rights judicial decisions were more ceremonial than substantial and that they represent the success of a strong political movement more than they represent a constitutional achievement.