Alternatives to the “Living Constitution”
Nonoriginalist theories of constitutional law are often associated with the idea of the “Living Constitution.” In a rough sense, the metaphor captures the notion that the Constitution can and should evolve to keep pace with the ever-changing nature of our modern society. Therefore, the theory goes, judges should be permitted to engage in “dynamic” or “loose” readings of the constitutional text so as to ensure that a very old document remains able to meet the needs and challenges of today’s world.
The living Constitution metaphor often prompts the following sort of rejoinder: “Wait a minute! Article V of the Constitution prescribes a specific and (arguably) exclusive set of procedures for changing the document’s meaning. And if a changed world does in fact demand changed constitutional law, then those are the procedures that we should use to achieve the requisite changes.” Judges, on this view, should not be allowed to circumvent the Article V process by informally according a “living” meaning to the constitutional text. To permit judicial updating of this is sort is to license judicial infringements on popular sovereignty: “We the People” are the authors of the Constitution, so only “We the People” should be able to amend it. Let’s call this argument the “Article V Objection.”
To me, the Article V Objection to the “living Constitution” is both powerful and weak. It’s powerful in that it identifies some very real problems with the notion of a freely changing constitutional text. But it’s weak in the sense that it doesn’t resolve the questions of whether and to what extent judges may change the content of constitutional law . In other words, the Article V Objection doesn’t so much destroy the idea underlying the “living Constitution” metaphor as it suggests some alterations to its framing.
Here, then, I want to present three alternative re-framings of the “living Constitution” idea, each of which (a) countenances at least some forms of judicially-initiated changes to constitutional law; and (b) offers, to my mind, a more adequate (though not necessarily definitive) response to the Article V Objection. Each of these re-framings, moreover, carries with it different a set of implications regarding the sorts of constitutional reforms that judges should be permitted to pursue. In that sense, then, the re-framings may afford us the added benefit of teasing out some internal subtleties and disagreement points that lie lurking within appeals to the “living Constitution,” full stop.
Thus, without further ado, let’s meet our contestants:
Alternative #1: The Capacious Constitution – Rather than regard the Constitution as “living,” we might simply regard it as “capacious”—i.e., able to accommodate a wide variety of different judicial constructions. The Chevron doctrine in administrative law acknowledges that the same statutory provision can be reasonably construed to operate in a variety of different ways; why, then, can’t the same be true of the Constitution itself? And if that is true, then judge-made changes to constitutional law need not amount to alterations of constitutional meaning; rather, they may simply reflect a choice to abandon one prior construction of the constitutional text in favor of a different such construction. The Constitution, on this view, is in fact “dead, dead, dead,” and cannot in fact be formally changed by judges acting outside the scope of Article V. But judicial changes to constitutional doctrine need not reflect changes to the Constitution itself; these changes may simply reflect a decision to abandon one permissible construction of the constitutional provision in favor of an equally permissible such construction.
Notice that a capacious constitutionalist must still acknowledge that the (unchanging) text of the Constitution has set, continues to set, and always will set rigid outer boundaries on the range of permissible judge-made changes to constitutional law. Just as the Chevron doctrine prohibits agencies from departing from unambiguous statutory terms (and/or unreasonably departing from ambiguous such terms), so too does capacious constitutionalism require judges to remain within the boundaries of the text the document sets forth. Capacious constitutionalism is, in this sense, potentially consistent with originalism, as Jack Balkin has strived to show: Insofar as one regards the “original public meaning” of the Constitution as not fully determinate of all constitutional outcomes, then constitutional doctrine can in fact change without reflecting judicial overrides of Article V.
Alternative #2: The Non-Exhaustive Constitution – A second re-framing of the “living Constitution” metaphor targets the proposition that “the Constitution” exhausts the content of judge-made “constitutional law.” The written Constitution, on this view, need not operate as the exclusive source of rules that define and limit the powers of government actors; other legal norms might also acquire “constitutional” status, even if not directly enshrined within the constitutional text itself. (There are some obvious parallels here to Henry Monaghan’s famous article on “constitutional common law”; there are also some parallels to Jed Rubenfeld’s distinction between “Application Understandings” and “No-Application Understandings.”) Think, for instance, of the dormant Commerce Clause doctrine: even if there’s no textual basis for it, might courts still be permitted to impose a set of common-law restrictions on state-level economic protectionism? So too, perhaps, with “unenumerated rights”; even if one rejects the notion that Ninth Amendment creates judicially enforceable rights against government conduct, one might still conclude that nothing in the Constitution prevents courts from recognizing such rights until instructed otherwise by the People.
A non-exhaustive Constitution, however, is not a non-existent Constitution. An “exhaustive constitutionalist” would still have to distinguish between supplementations to the constitutional text (which she would potentially allow) and departures from the text (which she would affirmatively prohibit). So, for instance, a non-exhaustive constitutionalist could not decline to vindicate a right that the Constitution expressly enshrines, just as she could not allow Congress to exercise a power that the Constitution withholds. (Here is, by the way, a very real sense in which the Tenth Amendment is not a “truism”; imputing a non-enumerated power to Congress would amount to an explicit departure from the Tenth Amendment’s instruction that all powers not enumerated must be understood to reside elsewhere. If the Tenth Amendment did not exist, the non-exhaustive constitutionalist could potentially characterize her “power-adding” decisions as merely supplementing Article I; the Tenth Amendment defeats that claim.)
Notice, finally, that a non-exhaustive constitutionalist at least has this to say in response to the Article V objection: “You the People may think I’m usurping your power to define the Constitution as you best see fit, but I’m ultimately leaving that power in your hands! If you don’t like my supplementations to your supreme law, you are free to amend the Constitution to make my supplementations invalid. You and you alone have the power to turn my extratextual norms into textually precluded norms.” Where the written Constitution speaks, that is, the non-exhaustive constitutionalist must follow; it is only where the document fails to speak that the non-exhaustive constitutionalist acquires some room to maneuver.
Alternative #3: The Partially Authoritative Constitution – The final and most radical of our three alternatives to the “living Constitution” is the “partially authoritative Constitution.” The first two theories accept the full and total authoritativeness of the Constitution as binding, supreme law, but this final theory does not. Rather, it asserts that at least in some circumstances, the normative force of the Constitution must yield to other considerations of superseding importance. The closest the Court has ever come to endorsing such a theory, I think, was in Home Building & Loan Association v. Blaisdell, where, in declining to invalidate a mortgage-relief measure as a violation of the Contract Clause, the Court emphasized the pressing nature of the economic emergency the law was designed to address. But one need not limit one’s recognition of “partial constitutional authority” to emergency situations only. One might also argue, for instance, that courts should be loath to invalidate “super-statutes” that reflect deep and penetrating levels of public support. Or one might argue that the written Constitution must yield to laws that were enacted during so-called “constitutional moments” of high-minded political consciousness. In these and other circumstances, there might arise reasons to let certain forms of democratic action proceed unchecked, even when text of the Constitution itself seems to prohibit the result.
How does the partially authoritative constitutionalist respond to the Article V Objection? I think the best response is to say something like this: “I reject your premise that I am defying the will of the People. Rather, I am doing my best to enforce their will, by not blocking them from taking action that they desperately want to take! And it is unrealistic to demand that they amend the Constitution through Article V before taking their desired action, because the Constitution is just too darned difficult to amend!” In other words, the “partially authoritative” constitutionalist justifies the departure from the constitutional text as a sort of compensating adjustment for the undue stringency of Article V.
Two final thoughts about all of this: First, notice that capacious constitutionalism, non-exhaustive constitutionalism, and partially authoritative constitutionalism are not mutually exclusive categories. One might embrace both the capacious and non-exhaustive accounts, but not the partially authoritative account; one might embrace the partially authoritative account but not the capacious and non-exhaustive accounts; one might embrace all three accounts; and so on. I count seven total such permutations, and of course, there are permutations within the permutations as well.
And second, none of the above should be taken as an attempt to justify one or the others of these framings as the correct way to think about constitutional law. Retweets do not equal endorsements, and any such endorsement would require far more cognitive energy than this now-exhausted constitutionalist has in him right now. I’m simply trying to put on the table, in much the same taxonomizing spirit of my first post, a way of categorizing different arguments that nonoriginalists might make in response to the Article V Objection, each of which—to my mind—reflects a meaningfully different way of thinking about constitutional change.