This is the sixth of a series of posts on the "great debate" between originalists and living constitutionalists. In this post, my aim is to present the argument for the Constraint Principle on the basis of legitimacy. 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:
This post addresses the following questions:
- What is the concept of legitimacy?
- How does the idea of democratic legitimacy bear on the choice between originalism and living constitutionalism?
- Does constitutional eclecticism have a transparency problem?
- How does originalism relate to the idea of legitimate judicial role?
The other posts in this series so far are as follows:
The post continues after the break.
What is the concept of legitimacy?
Legitimacy is a complex concept. Legitimacy should be distinguished from justice or rightness. It is possible for a just law to lack legitimacy (because it was imposed by an unelected dictator). Likewise, a legitimate law (made by an elected legislature employing the proper procedures) might be unjust. We can think of legitimacy as a process value: that a law is legitimate is a reason to consider it authoritative, providing a pro tanto reason for action that stems from characteristics of the law other than the moral rightness of its substantive content.
No system of law can be perfectly just; because laws are made by imperfect processes, it is inevitable that even the most enlightened societies will have some unjust laws. Moreover, in pluralist society with different citizens who disagree about justice, it is inevitable that laws that are regarded as just by some citizens will be viewed as unjust by others. Sometimes these disagreements will run deep, with some citizens believing that a constitutional doctrine is fundamentally unjust, while others believe that the same rule is required for the society to meet the minimum requirements of justice. The controversy over a constitutional right to abortion may well be an example of this kind of fundamental disagreement.
Disagreements about injustice in a pluralist society provide an important reason for the concern with legitimacy. One of the aims of law is to provide settlement: given that we cannot agree on what the law should be, we need processes that produce law that can be accepted by reasonable citizens as legitimate, even as they continue to advocate for change on grounds of justice.
How does the idea of democratic legitimacy bear on the choice between originalism and living constitutionalism?
One of the most important sources of legitimacy for law is enactment through democratic processes. The democratic pedigree of the United States Constitution is imperfect. The ratification process for the constitutional provisions drafted in 1787 was radically democratic by the standards of the time, but looks very imperfect when judged by contemporary standards. For this reason, some critics of originalism argue that the Constitution is illegitimate.
On the other hand, living constitutionalism also has a legitimacy problem. If judges are authorized to violate the Constraint Principle and the Supreme Court is given the last word on questions of constitutional interpretation, the result is that five individuals have effective authority to adopt constitutional amendments--clearly a less democratic process than supermajoritarian constitutional amendment as authorized by Article V.
Democratic legitimacy is a scalar, not a binary. So the relevant question is whether originalism provides a greater degree of democratic legitimacy than does living constitutionalism. In particular, the immediate question is whether originalism with constraint is more democratic than Constitutional Eclecticism--the form of living constitutionalism that characterizes the status quo. Eclecticism is a particularly undemocratic form of constitutional decisionmaking. The outcomes of an eclectic process of constitutional adjudication are frequently a function of the unintended consequences of different judges employing different approaches to constitutional decisionmaking. Eclecticism permits the ideology and political preferences of individual justices to play a direct role in their votes in constitutional cases. Perhaps even more importantly, eclecticism is a very poor approach to guarding against political factors playing an indirect role; eclecticism provides almost no discipline to the process of constitutional decisionmaking.
For all of these reasons, democratic legitimacy provides a pro tanto reason for favoring originalism over the constitutional status quo.
Does constitutional eclecticism have a transparency problem?
The transparency argument is based in part on the observation that nonoriginalists are reluctant to frankly acknowledge that they have rejected the Constraint Principle; Constitutional Eclecticism is particularly pernicious in this regard. Eclecticism makes it appear that particular decisions are the function of principled reasoning, but the real action takes place outside of public view when eclectic judges pick and choose among the range of approaches available to them. If the opinion is based on precedent it appears that precedent drove the decisionmaking process, but the real action was behind the scenes when a precedent-based approach was chosen and an approach based on constitutional values (or some other method) was rejected.
Eclecticism is nontransparent for another reason. The opinions of the Supreme Court have not explicitly claimed a power to violate the Constraint Principle, and when the issue arises the Court almost always claims that its decision is allowed or compelled by the original meaning of the constitutional text. One suspects that individuals who wish to be nominated for the Supreme Court are well advised to avow their allegiance to the Constraint Principle (or something close to it) and to disavow the Supreme Court’s power to adopt amending constructions. The Constraint Principle can be affirmed publicly and transparently by constitutional actors, but denial of the Constraint Principle by constitutional actors is almost always done privately or expressed publicly in ways that obfuscate the fact that the Constraint Principle is being denied. It is widely assumed that political transparency is required for the legitimacy of law and that a secret decisionmaking procedure is illegitimate—except in special contexts where the need for secrecy is great (such as certain national security matters). Action on the basis of principles that cannot be made public lack an important form of legitimacy.
How does originalism relate to the idea of legitimate judicial role?
Living constitutionalism faces one additional legitimacy problem. The legitimacy of the power of judicial review rests on the notion that judges have a duty to follow the law. But living constitutionalists who reject the Constraint Principle have a conception of judicial review in which judges make the law. Of course, the rhetoric of living constitutionalism attempts to disguise this fact in various ways. For example, it is frequently argued judges are just engaging in "interpretation" and hence that their actions are actually consistent with the Constitution. But whenever the Constraint Principle is violated, judges cross the line from "interpretation" that is consistent with the text to something else, constitutional amendment that is disguised as constitutional fidelity.