Lawrence B. Solum (Georgetown Law) has posted Living Constitutionalism is Junk on SSRN. Here is the abstract:
At the highest level of abstraction, constitutional theory is a contest between two theoretical families, originalism and living constitutionalism. In this Article, I clarify the conceptual structure of the debate and argue that those versions of living constitutionalism that are clearly distinct from originalism are either implausible or theoretically incoherent.
Following Mitch Berman's justly famous theoretical framework, I characterize living constitutionalist theories on two dimensions (hard versus soft, strong versus weak). Strong living constitutionalism is the view that the meaning (or more precisely "communicative content") of the constitutional text should never be considered in constitutional practice. Weak living constitutionalism is the view that communicative content should be considered on some occasions but that other factors (arguments of policy and principle, practicality, and other modalities should be considered as well in all cases. Hard living constitutionalism is the view that it is necessarily the case that the meaning of the constitution changes in response to changing circumstances and values. Hard living constitutionalism relies on conceptual arguments to show that for a practice to count as constitutionalism it must rely on multiple modalities of constitutional argument and hence that constitutional meaning cannot be fixed. Soft living constitutionalism accepts the conceptual possibility of originalism, but argues that there are normative reasons to prefer a system that authorizes judges and officials to override the constitutional text. This results in a two by two matrix: hard strong living constitutionalism, hard weak living constitutionalism, soft strong living constitutionalism, and soft weak living constitutionalism.
Following Berman, I demonstrate that hard forms of living constitutionalism are implausible. Although some living constitutionalists, notably Bobbitt, believe that that the nature of constitutional practice entails the conclusion that multiple modalities of constitutional argument are a necessary part of constitutional decision making, this argument commits a simple fallacy, conflating ought and is. Moreover, weak living constitutionalism is not distinct from originalism, since almost all originalists concede that other modalities of constitutional argument sometimes play some role in constitutional practice--for example, in the construction zone created by vague or open-textured constitutional language. This leaves only soft strong living constitutionalism, roughly the view that there are normative justifications for judicial review that does not even consider the consittutional text and hence a judicial power to override the clear meaning of the constitutional text (i.e., those provisions of the constitution that are unambiguous and provide bright lines). We can can designate this version of living constitutionalism as true living constitutionalism, marked by capital letters: "Living Constitutionalism."
Although Living Constitutionalism has proponents, on close inspection very few proponents even attempt to provide the kinds of normative arguments that would be required to defend the soft and strong version of their theory. One reason for the paucity of arguments is the transparency problem. A defense of Living Constitutionalism would require an explicit argument that the Supreme Court should completely ignore the constitutional text and that the Justices have the power to override the entire constitution--a proposition that is both wildly implausible on normative grounds and far outside the realm of political feasibility. Public acknowledgement of this position by a nominee for the Supreme Court would be the judicial suicide. Just as there is "junk science," the peddling of empirical propositions that cannot be defended using the methods of real science, so to there is "junk constitutional theory," the peddling of constitutional ideas that can only be defended by obscuring their real content. Living constitutionalism is junk.
As always, comments are welcome.