What's a "living Constitution"?

The law, lawyers, and the court.
Aug. 23 2005 5:01 PM

Reasons To Go On Living

Does anyone believe in a "living Constitution" anymore?

All this talk of the Iraqi Constitution—or lack thereof—serves as a useful reminder that a country's constitution is only as useful as the tools that will be used to interpret it later. As the most recent "Justice Sunday" extravaganza illustrates, the majority of the nation seems now to be of the firm belief that there is only one way to view the U.S. Constitution: in the way the framers first intended. Maybe that's because they are hearing so few principled arguments making any other case.

To hear Tom DeLay and his cronies tell it, the only alternative to the interpretive theory of "Originalism" or "strict construction" is to have judges swinging like monkeys from the constitutional chandeliers, making up whatever they want, whenever they want. Here's Jonah Goldberg on the allure of a dead Constitution: "A 'living Constitution' denies us our voice in this regard because it basically holds that whatever decisions we make—including the 13th, 14th, and 15th Amendments—can be thrown out by any five dyspeptic justices on the Supreme Court. In other words, the justices who claim the Constitution is a wild card didn't take their oath to uphold and defend the Constitution in good faith because they couldn't know what they were swearing to."

Dahlia Lithwick Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate. Follow her on Twitter.

Goldberg goes on to quote Justice Antonin Scalia's dissent in the recent Ten Commandments cases: "What distinguishes the rule of law from the dictatorship of a shifting Supreme Court majority, is the absolutely indispensable requirement that judicial opinions be grounded in consistently applied principle. That is what prevents judges from ruling now this way, now that—thumbs up or thumbs down—as their personal preferences dictate."

And here is Todd Gaziano from the Heritage Foundation: "If judges can essentially do whatever they want in the guise of updating the [C]onstitution … making it real for today or choosing whatever silly phrase you want, then we might as well have a completely unwritten Constitution."

I wonder what proportion of Americans now believes that unleashing hoards of crazy liberal elite jurists upon the nation is the sum of the liberal project.

In a very thoughtful essay published last week in the American Prospect, Adele M. Stanargues, "Liberals have done virtually nothing to explain the Constitution to regular people in terms they understand." Before you call those sentiments classist or elitist, ask yourself when you last read a compelling defense of the "living Constitution" in your daily newspaper. And I don't mean a defense against the "activist judiciary" charge—these are not the same things. All too often these two criticisms are conflated, but it's certainly possible to imagine a "living Constitution" as interpreted by hands-off, minimalist judges.

A Nexis search for the words "living Constitution" turns up literally dozens of stories by conservatives bashing the premise into a hopeless pulp. But it's hard to find a creditable recent defense of the Constitution as something greater than the span of its own four corners. And I wonder why.

Is it because the words "living Constitution," like the words "feminist" or "liberal," have become wholly appropriated by the Rush Limbaughs of the world? Or is it something deeper—a sense on the part of serious liberal thinkers that Roe v. Wade, with its kabbalistic talk of constitutional penumbras and emanations, really is indefensible? Is it, as I have argued before, that we are all secretly afraid that Scalia is right? That a living Constitution is nothing more than a bunch of monkeys on chandeliers?

Many prominent liberal thinkers have retreated from William Brennan's soaring language about the need for a "living Constitution," because, I think, it embarrasses them. The idea that, as Brennan wrote, "It is arrogant to pretend that from our vantage we can gauge accurately the intent of the Framers on the application of principle to specific, contemporary questions," has been rebutted roundly with the notion that it's even more arrogant for nine unelected officials to gauge anything at all. Calls for minimalism or pragmatism or incrementalism are now in vogue for progressives. That has all the taste of penumbras and emanations, but only half the calories.

So, I turn to you, dear readers, smart thinkers, and posters of great wisdom in the Fray, to ask simply: Is the living Constitution dead? Are the critics correct—was it all just a great drunken binge of Brennan and Thurgood Marshall's? What is left in its place? Is there room for a Brennan-esque defense anymore? Or am I correct in guessing that Scalia is right this time? Send replies to livingcons@hotmail.com. The best of your answers will be coming soon to a Jurisprudence near you.

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