Alive and Kicking
Why no one truly believes in a dead Constitution.
We are all living constitutionalists now. But only some of us are willing to admit it.
The notion of a Constitution that evolves in response to changing conditions didn't start with the Warren Court of the 1960s; it began at the founding itself. The framers expected that their language, not their intentions, would control future generations. They created, in John Marshall's words, a "constitution, intended to endure for ages to come, and consequently, to be adapted to the various crises of human affairs."
The specific metaphor of a living, evolving Constitution arose in the 1920s to explain how a broad view of federal power that came with World War I (and later, the New Deal) was consistent with the American constitutional tradition. The Constitution's words, Justice Oliver Wendell Holmes Jr. wrote in 1920, "called into life a being" whose "development … could not have been foreseen completely by the most gifted of its begetters." Hence we must interpret our Constitution "in the light of our whole experience and not merely in that of what was said a hundred years ago."
Holmes was right: The living Constitution is central to the American constitutional tradition, so central that even its loudest critics actually believe in it. Many Americans fail to realize how much of our current law and institutions are inconsistent with the original expectations of the founding generation. A host of federal laws securing the environment, protecting workers and consumers—even central aspects of Social Security—go beyond the original understanding of federal power, not to mention most federal civil rights laws that protect women, racial and religious minorities, and the disabled from private discrimination. Independent federal agencies like the Federal Reserve Board, the Federal Trade Commission, and the Federal Communications Commission would all be unconstitutional under the original understanding of the Constitution. Presidential authority would be vastly curtailed—including all the powers that the Bush administration regularly touts. Indeed, most of the Bush administration's policy goals—from No Child Left Behind to national tort reform—would be beyond federal power.
Conversely, a vast number of civil-liberties guarantees we now expect from our Constitution have no basis in the original understanding. If you reject the living Constitution, you also reject constitutional guarantees of equality for women, not to mention Brown v. Board of Education and Loving v. Virginia, which struck down laws banning interracial marriage. Liberals and conservatives alike would be discomfited. The original understanding cannot explain why the Constitution would limit race-conscious affirmative action by the federal government, nor does it justify the current scope of executive power.
Even the Supreme Court's two professed originalists, Justices Antonin Scalia and Clarence Thomas, believe in the living Constitution. Scalia's concurrence in Raich v. Ashcroft—this term's medicinal-marijuana case—demonstrates that he long ago signed on to the idea of a flexible and broad national power that came with the New Deal. And Thomas argues for First Amendment protections far broader in scope than the framers would have dreamed of. Both Justices joined the majority in Bush v. Gore, which relied on Warren Court precedents securing voting rights under the 14th Amendment. There was just one tiny originalist problem with that logic: The framers and ratifiers of the 14th Amendment didn't think it applied to voting.
Nobody, and I mean nobody, whether Democrat or Republican, really wants to live under the Constitution according to the original understanding once they truly understand what that entails. Calls for a return to the framers' understandings are a political slogan, not a serious theory of constitutional decision-making.
In fact, the contemporary movement for originalism began as a conservative political slogan used to attack the Warren Court's decisions on race and criminal procedure. It mutated from a concern with the original intentions of the framers, to the intentions of the ratifiers, to how the public would have understood and applied the Constitution's words at the time they were adopted.
Today's originalism is hauled out to attack decisions that judges and politicians don't like. But when it comes to decisions they do like, or would be embarrassed to disavow, the same judges and politicians quickly change the subject. In practice contemporary originalists pick and choose when they will demand fidelity to original understanding. Sometimes they even mangle the history to get to results they like.
Originalists make two standard objections to the idea of a living Constitution. The first is that fidelity to law and a written Constitution requires fidelity to the original understanding. Anything else is not legal interpretation and is per se illegitimate. But a vast number of existing statutes and constitutional doctrines are inconsistent with the original understanding. Why are any of them law?
Some originalists argue that we should respect non-originalist precedents only if lots of people have relied on them. This doesn't explain why those precedents are legitimate interpretations according to the theory; indeed, it suggests that legitimacy comes from public acceptance of the Supreme Court's decisions, not from fidelity to original understanding. Moreover, this strategy allows originalists to pick and choose which rulings to keep, based on their judgments of when reliance is real or justified. So, strict scrutiny for federal affirmative action stays, but the right of privacy goes. We'll keep presidential power on steroids, thank you, but jettison the Endangered Species Act.
But there's a more important problem here: Non-originalist decisions that guarantee race and sex equality, that protect free speech and the rights of criminal defendants, and that give Congress power to protect the environment and secure equal civil rights are not unfortunate errors that we are just stuck with because of "reliance." They are some of our country's proudest achievements. There's something deeply wrong with a theory of constitutional interpretation that treats some of the key civil rights decisions of the 20th century as mistakes that we are stuck with. For if decisions like Brown, Loving, Craig v. Boren, and Griswold v. Connecticut are mistakes, we should read them as narrowly as possible and overturn them at the first opportunity. But that's not how Americans regard these decisions. They are evidence of our gradual progress as a nation. They are what make us a country conceived in liberty and dedicated to the proposition that all people are created equal.
The great irony is that living constitutionalism rests on much firmer jurisprudential foundations. Originalists are right that the Constitution is binding law, but they confuse the constitutional text—which is binding—with original understanding and original intentions, which are not. A living Constitution requires that judges faithfully apply the constitutional text, given the meanings the words had when they were first enacted, applying those words to today's circumstances. Original meaning does not mean original expected application. For example, the Constitution bans cruel and unusual punishments. But the application of the concepts of "cruel and unusual" must be that of our own day, not 1791. Living constitutionalists draw upon precedent, structure, and the country's history to flesh out the meaning of the text. They properly regard all of these as legitimate sources of interpretation. In fact, most people who call themselves originalists agree; even they don't regard original understanding as controlling in all cases.
Jack M. Balkin is Knight professor of constitutional law and the First Amendment at Yale Law School. His latest book is What Roe v. Wade Should Have Said.