Legal Theory Blog: Legal Theory Lexicon: Living Constitutionalism

Introduction

Constitutional discourse in both the academy and the public sphere has recently included quite a bit of talk about "originalism." But what about originalism's great historical rival, "living constitutionalism?" What is living constitutionalism and how is it different from originalism? A preliminary answer to that question can be offered in the form of a simple definition:

Living Constitutionalism: Living constitutionalism is the view that the legal content of constitutional doctrine does and should change in response to changing circumstances and values.

This entry in the Legal Theory Lexicon will examine the history of living constitutionalism, discuss the question as to how and whether it differs from originalism, and briefly explore some of the main forms of contemporary academic living constitutionalism. As always, the Lexicon provides a short introduction to a concept in legal theory for law students.

The History of 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.

In 1936, Charles Beard echoed McBain’s title in an essay published in the Annals of the American Academy of Political and Social Science. Beard wrote,

Since most of the words and phrases dealing with the powers and the limits of government are vague and must in practice be interpreted by human beings, it follows that the Constitution as practice is a living thing. The document can be read at any moment. What the judges and other expounders have said in the past can be discovered in thousands of printed pages. From the records of history, we can get some idea of past practices under the instrument. But what the Constitution as practice is today is what citizens, judges, administrators, lawmakers, and those concerned with the execution of the laws do in bringing about changes in the relations of persons and property in the United States, or in preserving existing relations. It is the living word and deed of living persons, positive where positive, and subject to their interpretation where open to variant readings. How could it be otherwise? How could intelligence, as distinguished from sophisticated interest, conceive the document as practice in any other terms?[

Another important formulation was provided by Charles Reich in his 1963 article, Mr. Justice Black and the Living Constitution:

[I]n a dynamic society the Bill of Rights must keep changing in its application or lose even its original meaning. There is no such thing as a constitutional provision with a static meaning. If it stays the same while other provisions of the Constitution change and society itself changes, the provision will atrophy. That, indeed, is what has happened to some of the safeguards of the Bill of Rights. A constitutional provision can maintain its integrity only by moving in the same direction and at the same rate as the rest of society. In constitutions, constancy requires change.

And a fourth influential 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.

The opponents of living constitutionalism offered their own definitions: for example, in 1976, then Associate Justice William Rehnquist wrote The Notion of a Living Constitution, which explicitly criticized living constitutionalism and implicitly endorsed originalism based on the writings of the framers. Contemporary theorists continue to use the term in a variety of ways. Adam Winker writes,

The pattern-- critiquing originalism, insisting that the interpretation of the constitutional text evolve to meet changed conditions in society, and pursuing reform through litigation strategies that made evolution central to judicial reasoning--has come to define modern living constitutionalism.

Nelson Lund characterizes “living constitutionalism” as the view that “the scope of a constitutional right is defined largely by judicial perceptions of current social mores.”

Like "originalism," the term "living constitutionalism" is best viewed as the name for a family of theories, some of which are explored below. Our next step is to explore the relationship between originalism and living constitutionalism.

Living Constitutionalism versus Originalism

Like other theoretical terms, "living constitutionalism" and "originalism" have meanings that are disputed. This means that some theorists are likely to offer definitions for these terms that make it true (as a matter of definition) that living constitutionalism and originalism are mutually exclusive, where as other theorists may embrace the possibility that some moderate forms of living constitutionalism are compatible with originalism. The most prominent example of compatibilism is Jack Balkin's theory, which he explicated and defended in his book, Living Originalism.

The following definitions of "living constitutionalism" and "originalism" illustrate the possibility of compatibilism:

Originalism: A constitutional theory is "originalist" if it affirms (1) the fixation thesis (the linguistic meaning of the constitutional text is fixed at the time each provision is framed and ratified), and (2) the constraint principle (the fixed original meaning should constraint constitutional practice).

Living Constitutionalism: A constitutional theory is "living constitutionalist" if it affirms that the legal content of constitutional doctrine does and should change in response to changing circumstances and values.

Nonoriginalism: A constitutional theory is "nonoriginalist" if it denies either the fixation thesis or the constraint principle.

Given these definitions, "living originalism" is a conceptual possibility if it is the case that the fixed original meaning of the constitutional text underdetermines at least some questions of constitutional doctrine. Such underdetermination may occur if the constitution contains provisions that are vague or open textured. Such provisions could be said to create "construction zones," areas of doctrine where the linguistic meaning of the text would need to be supplemented by precisification or default rules. Thus, if some living constitutionalists accept that the constitutional text is binding when it is clear, then they could embrace originalism as to some issues while affirming that constitutional doctrine should evolve with respect to others.

Many participants in debates about living constitutionalism and originalism seem to reject the idea of compatibilism. One reason for such rejection may a dispute over the definitions of the terms "living constitutionalism" and "originalism" could be defined as mutually exclusive positions. This way of carving up the conceptual space has the advantage that it puts the two views in opposition to each other. To the extent that the definitions are contested, the result would be "metalinguistic negotiation," which is discussed in another Legal Theory Lexicon entry.

While some constitutional theorists reject the idea of compatibilism for definitional reasons, others may oppose compatibilism onns the basis of substantive concerns. For example, some originalists may embrace the proposition that the constitutional text is fully determinate and hence that embracing the constraint principle entails that constitutional doctrine does not change. It is important to remember that this kind of determinacy does not entail the further conclusion that constitutional applications are fixed. Thus, one can believe that the original meaning of the Second Amendment creates a rule that forbids government regulations that ban the possession of weapons that can be carried by a person, but reject the idea that the category of weapons is limited to weapons that existed in 1791 when the Second Amendment was adopted.

If you accept the definitions offered above, then compatibilism and hence "living originalism' is at least a conceptual possibility. If you reject these definitions, the theories that affirm some elements of living constitutionalism and some elements of originalism might be called "hybrid views."

Forms of Living Constitutionalism

Given the highly abstract definition of "living constitutionalism," is should not be surprising that there are many different versions. Living constitutionalism is best viewed as a family of theories. A full survey of the members of the family is too much for a Lexicon entry, but here are some of the most important members:

Constitutional Pluralism: This is the view that law is a complex argumentative practice with plural forms of constitutional argument.

Moral Readings: This is Ronald Dworkin’s theory, also called “law as integrity” or the “constructive interpretation” 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.

Contemporary Meaning: This is the view that the meaning of the constitutional text does change and that it is the contemporary meaning and not the original meaning that should constraint constitutional practice. Unlike other versions of living constitutionalism, this view denies the fixation thesis, but not the constraint principle.

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.

One of the things we learn from this brief survey is that there are important differences between the various forms of living constitutionalism. Common law constitutionalism and Thayerianism are radically different from each other, and both of them is quite different from the moral readings approach.

Conclusion

"Living constitutionalism" is frequently invoked in debates about constitutional theory, but it is rarely defined in a precise way. The aim of this Legal Theory Lexicon entry has been to give you a brief introduction to this important idea, its history, and some of the forms that it takes.

Related Lexicon Entries

Bibliography (with pinpoint cites to quotations above)

Jack Balkin, Living Originalism (2011).
Charles A. Beard, The Living Constitution, 185 Annals of the American Academy of Political and Social Science 29 (1936).
William J. Brennan, Jr., The Constitution of the United States: Contemporary Ratification, 27 S. Tex. L. Rev. 433, 437 (1986).
Howard Lee McBain, The Living Constitution 33 (1947) (Note that this is not the original edition).
Charles A. Reich, Mr. Justice Black and the Living Constitution, 76 Harv. L. Rev. 673 (1963).
Nelson Lund, The Second Amendment, Heller, and Originalist Jurisprudence, 56 UCLA L. Rev. 1343, 1355 (2009).
William H. Rehnquist, The Notion of a Living Constitution, 54 Tex. L. Rev. 693 (1976).
Lawrence B. Solum, What is Originalism? The Evolution of Contemporary Originalist Theory (2011).
Lawrence B. Solum, Originalism and Constitutional Construction, 82 Fordham L. Rev. 453 (2013).
Lawrence B. Solum, The Fixation Thesis: The Role of Historical Fact in Original Meaning, 91 Notre Dame Law Review 1 (2015).
Adam Winkler, A Revolution Too Soon: Woman Suffragists and the "Living Constitution", 76 N.Y.U. L. Rev. 1456, 1458 (2001).