This is the first of a series of posts on the "great debate" between originalists and living constitutionalists. In this post, my aim is to frame the debate. These posts introduce ideas that I present in greater depth in a work-in-progress:
For a very short statement of the case for originalism, see:
In this post, we will look at the nature of the debate between originalists and living constitutionalists. Our focus will be on three questions:
- What is originalism?
- What is living constitutionalism?
- What are the main issues that divide originalists and living constitutionalists?
Post continues after the break!
What Is Originalism?
What is "originalism"? What is "living constitutionalism"? How should we draw the line between these two great theoretical traditions?
In prior work, I have argued that originalism is a family of constitutional theories organized around two core ideas, fixation and constraint. Almost all originalists agree with both the idea that the meaning of constitutional text is fixed at the time each provision is framed and ratified and the idea that this fixed original meaning should constrain constitutional practice. We can express these two ideas in a preliminary way as follows:
The Fixation Thesis: The original meaning of the constitutional text is fixed at the time each provision is framed and/or ratified.
The Constraint Principle: Constitutional practice, including the elaboration of constitutional doctrine and the decision of constitutional cases, should be constrained by the original meaning of the constitutional text. At a minimum, constraint requires that constitutional practice be consistent with original meaning (as specified below).
Note that these preliminary formulations use “original meaning,” but particular versions of originalism may substitute other expressions, such as “original intent,” “original methods,” or “original law.” Originalists agree on fixation and constraint, but they disagree on other questions. The most important area of disagreement concerns the nature of original meaning. Among the important variations are the following:
Public Meaning: The original meaning is the public meaning of the constitutional text.
Framers’ Intentions: The original meaning is provided by the framer’s intentions. Intentionalism has further variants, including forms that focus on purposive intentions and communicative intentions.
Ratifiers’ Understandings: The original meaning is given by the understandings of the ratifiers of each provision.
Original Methods: The original meaning is the meaning that would be given to the text by the original methods of constitutional interpretation and construction.
Original Law: Contemporary law is derived from the original positive law, including the rules of constitutional change authorized by that law.
Any particular version of originalist theory will combine fixation and constraint with an understanding of the nature of original meaning (or original law).
For the purposes of this series of posts, I will use Public Meaning Originalism as the representative of the originalist family of constitutional theories.
What Is Living Constitutionalism?
The phrase “living constitutionalism” seems to be derived from the title of a book by Howard Lee McBain, The Living Constitution, first published in 1927. This slim volume ranges across a variety of topics, and it was not intended as rigorous constitutional theory. The following passage illustrates McBain’s notion of a living constitution:
“A word”, says Mr. Justice Holmes, “is the skin of a living thought.” As applied to a living constitution the expression is particularly apt; for living skin is elastic, expansile, and is constantly being renewed. The constitution of the United States contains only about six thousand word; but millions of words have been written by the courts in elucidation of the ideas these few words encase.
An influential contemporary formulation of living constitutionalism was offered in 1986 by Justice William Brennan:
To remain faithful to the content of the Constitution, therefore, an approach to interpreting the text must account for the existence of the substantive value choices and must accept the ambiguity inherent in the effort to apply them to modern circumstances. The Framers discerned fundamental principles through struggles against particular malefactions of the Crown: the struggle shapes the particular contours of the articulated principles. But our acceptance of the fundamental principles has not and should not bind us to those precise, at times anachronistic, contours.
There are several different versions of living constitutionalism, and some of them may be compatible with some forms of originalism: an example of a compatibilist theory is Jack Balkin's "Living Originalism." For now, let's set that possibility to the side and focus on those versions of living constitutionalism that reject the Constraint Principle. Here is a list of the major approaches, some of which have variations:
Constitutional Pluralism: This is the view that law is a complex argumentative practice with plural forms of constitutional argument.
Constructive Interpretation: This is Dworkin’s theory, also called “law as integrity” or the “moral readings” theory.
Common Law Constitutionalism: This is the view that the content of constitutional law should be determined by a common-law process.
Popular Constitutionalism: This is the view that “We the People” can legitimately change the constitution through processes such as transformative appointments that do not formally amend the text.
Multiple Meanings: This is the view that the constitutional text has multiple linguistic meanings and that constitutional practice should choose between these meanings on a case by case basis.
Superlegislature: This is the view that the Supreme Court should act as an ongoing committee of constitutional revision with the power to adopt amending constructions of the constitutional text on the basis of the same kinds of reasons that would be admissible in a constitutional convention.
Thayerianism: This is a family of views that require courts to defer to Congress, with three variants:
Constrained Thayerianism is the view that courts should defer to Congress but that Congress itself should be constrained by the original meaning of the constitutional text.
Unconstrained Thayerianism is the view that courts should defer to Congress and that Congress should have the constitutional power to revise the constitutional text, either by adopting amending legislation or by creating implicit amendments through ordinary statutes.
Representation Reinforcement Thayerianism is the view that courts should defer to Congress except when judicial review is necessary to preserve democracy, including protection of discreet and insular minorities and protection of democratic processes.
Constitutional Antitheory: There are four views that are “antitheoretical” in the sense that they deny that constitutional practice should be guided by any normative theory, whether that theory be originalist or nonoriginalist:
Particularism is the view that constitutional practice should be guided by salient situation-specific normative considerations in particular constitutional situations.
Pragmatism is the similar view, associated with Judge Richard Posner (and in a different form with Daniel Farber and Suzanna Sherry) that constitutional decisions should be made pragmatically on the basis of various normative considerations.
Eclecticism is the view that different judges should embrace different approaches to constitutional interpretation and construction, and that even a single judge should adopt different approaches on different occasions.
Opportunism is the view that theoretical stances should be deployed strategically to achieve ideological or partisan goals.
Constitutional Rejectionism: These views reject the United States Constitution as an authoritative source of law.
Anticonstitutionalism is the view that written constitutions in general should play no role in constitutional practice.
Constitutional Replacement theories would allow the text of a normatively attractive replacement constitution to play a role in constitutional practice, but reject any constraining role for the current Constitution of the United States.
All of these forms of living constitutionalism reject the Constraint Principle, but otherwise, there are many substantial differences between them. How can we deal with this fact when we frame the debate between originalists and living constitutionalists. My proposal is that we deal with this complexity by adopting the method of pairwise comparison. In other words, we need to compare particular forms of originalism with specific versions of living constitutionalism. In this series of posts, I will be using Public Meaning Originalism as the representative form of originalism. I will then use two or three different versions of living constitutionalism for the purposes of pairwise comparison--depending on what issue is being addressed.
What are the Main Issues that Divide Originalists and Living Constitutionalists?
My sense is that there are six important issues that divide originalists and living constitutionalists. Of course, there are likely others as well, but having worked on this debate intensively for ten years, my sense of the state of play is that these six issues are the ones that are the heart of the debate.
- Issue One: Is the linguistic meaning (communicative content) of the constitutional text fixed at the time each provision was framed and ratified? Or does the meaning of the text change over time in response to semantic drift? Of the six issues, this one is perhaps the least important, but it continues to be debated.
- Issue Two: Should constitutional actors (e.g., the Supreme Court, President, Congress, etc.) be bound by the communicative content of the constitutional text? Or should they have a power to modify or override that meaning in response to changing circumstances and values?
- Issue Three: Is the original meaning of constitutional text sufficiently determinate to guide constitutional practice in a substantial range of issues? Or is the meaning either radically indeterminate or so underdeterminate that originalism would not meaningfully constrain constitutional practice?
- Issue Four: Can originalism provide a methodology that produces substantial intersubjective agreement on a sufficiently wide range of questions about the communicative content of the constitutional text? Or is it the case that the original meaning is epistemically inaccessible?
- Issue Five: Can judges implement originalism reliably and fairly? Or is it the case the judges are incompetent to investigate original meaning or so biased that they will be unable to act in compliance with original meaning--even if dispassionate scholars could do so? Another version of this issue: Is originalism a mask for ideological judging?
- Issue Six: Should we reject the project of the United States Constitution altogether? For example, should we abolish judicial review and adopt congressional supremacy (along the lines of parliamentary supremacy)? Another way of putting this question: should we simply retire the Constitution as a framework of government and treat the constitutional text as a symbol of national unity, like the flag or the Washington Monument?
In the posts that follow, I will address all of these issues, but my primary focus will be on the normative justifications for the Constraint Principle and hence on Issue Two.