Is Originalism Dead?

Of the debate about how to interpret the Constitution, there appears to be no end. In a constitutional republic such as ours, the subject speaks its own importance, and that may be enough to explain the never-ending argument. But the topic is given added urgency by the sharp divisions about interpretive method on a closely divided Supreme Court; by the many vital constitutional questions that work their way through our judiciary, from abortion to gay marriage, from gun ownership to the mandatory purchase of health insurance; and by the growing sense of many tea-drinking Americans that we have drifted very far from the Constitution that our forefathers crafted for us.

As Robert Lowry Clinton showed in his recent Public Discourse article “Elitism and Judicial Supremacy,” the idea of a “living Constitution,” which seems to have originated about a century ago in the thought of Woodrow Wilson, has been seized upon by progressives in recent decades as the vehicle for social changes that could not possibly be achieved by persuasive appeals to public opinion and the electoral and legislative processes of majority rule. Ironically, Wilson conceived of the living Constitution as a way of liberating presidential leadership, which would usher in social changes precisely through the rhetorical reshaping of Americans’ expectations of their government.

In Wilson’s political science, the Supreme Court was indeed the final arbiter of constitutional questions, but he did not expect it to be a force for change in its own right, so much as an enabler of those changes brought about by powerful presidents who achieved a mastery over both public opinion and the legislative agenda of the Congress. For the most part, the proper job of the judiciary was to hold its power in abeyance, and to clear the path to hitherto unforeseen uses of national political power rather than to throw up new obstacles in government’s way. Adhering to the founding generation’s understanding of the Constitution would make it impossible for presidents to engage in this leadership of public opinion, Wilson and his fellow progressives thought—and impossible for the American political system to adapt successfully to the modern age.

It is only in the last six decades or so that American liberals have come to see the living Constitution as an idea that centers on the possibilities of judicially driven social and political change. Today’s heirs of the progressive cause are grateful to a Supreme Court that has actively intervened to make America (in their view) a better place, by making the Constitution seem to say things that no one understood it to say in those generations that wrote its great provisions. But there remains, among the advocates of a living Constitution, a palpable anxiety regarding the idea’s philosophical and political legitimacy. It is hard to justify an approach to constitutional interpretation that makes an unelected, life-tenured judiciary a transformative institution, authorized to frustrate the popular will in order to advance a vision of a better democracy. It is hardest of all when the animating principles of that vision seem wholly unconnected to the historic traditions of the American constitutional order, traditions to which the alternative jurisprudential school of “originalism” so strongly appeals. The task of today’s defenders of the living Constitution, then, is somehow to convince the American people of the idea’s “conservative” credentials, as both true to our traditions and capable of constraining judicial behavior and rendering it trustworthy.

This is the task that University of Chicago law professor David A. Strauss sets for himself in The Living Constitution, a short, pithy new book written to be read by any intelligent citizen and not just by legal scholars. Strauss is at great pains to demonstrate the intellectual and practical failures of originalism, and to show the consistency of the Living Constitution approach with the constraining principles of our legal traditions, while celebrating its results as cultivating the progressive flowering of a more just society. But his negative case against originalism, when it is not merely self-contradictory, rests on straw-man arguments that have been refuted many times. And his positive case for the Living Constitution is an attempt to give the radicalism of modern judicial decisions a veneer of conservative respectability that is quite unconvincing.

Originalism, says Strauss, is fundamentally flawed because it is “often impossible to uncover what the original understandings” of the Constitution were two centuries ago; because “the task of translating those understandings so that they address today’s problems” is frequently an intractable one; and because originalism cannot give an answer to the question, “Why should we be required to follow decisions made hundreds of years ago by people who are no longer alive?”

No originalist claims that all questions of the Constitution’s original meaning, or of its appropriate application in new settings, are easily answered. But Strauss surely exaggerates the magnitude of these difficulties, and fails to come to grips with the form of originalism that is prevalent today—the search for original meaning, which holds that the text of the Constitution has a meaning of its own, independent of the views (either the intentions or the understandings) of any particular individuals involved in making or ratifying its provisions. The point is to espy the “regression toward the mean,” as it were: the meaning of a constitutional provision that is the best account that can be given of its principled purpose, in the context of a coherent whole into which it fits as a constituent part, serving the comprehensive intention of the generation responsible for it. Strauss wrongly claims that originalists have to be historians, and “better than historians,” capable of absolute certainty regarding “the precise question presented by the case before them.” To the contrary, as in the interpretation of contracts, wills, and statutes, the originalist judge needs only those tools long used by the interpreters of legal texts, and identified in the 1760s by the English commentator William Blackstone: “the words, the context, the subject-matter, the effects and consequences, or the spirit and reason of the law.”

But Strauss does not really believe originalism poses such insuperable difficulties. He is instead serenely confident that he knows what will and will not result from an originalist approach, declaring with an air of certainty that if the Supreme Court took such an approach, segregated public schools would be legal, women could be treated unequally, the Bill of Rights would not apply to states, legislators could represent wildly different proportions of the electorate, and most modern regulatory legislation would have to be held unconstitutional. Strauss may even be right about some of these conclusions, but what is striking is that he claims to know what results originalism would have, in a book that argues that originalists cannot know such things themselves.

Making his positive case for the Living Constitution, Strauss claims that it is only “the common law approach” applied to constitutional interpretation. It is an approach, he says, that is guided by slowly evolving precedents, and thus the judges are constrained: “Present-day interpreters may contribute to the evolution—but only by continuing the evolution, not by ignoring what exists and starting anew.” But what if the precedents do not provide adequate guidance, in a wholly new kind of case, or in an underdeveloped field of the law, or in a case where the precedents seem to the judge to have gone down a blind alley or failed to keep up with changing social realities? Then, says Strauss, “there is a legitimate role for judgments about things like fairness and social policy.”

And it is just here that the radicalism of the Living Constitution peeks through the conservative cloak in which Strauss attempts to wrap it. For he never gives an account of what “fairness and social policy” demand, other than what feels right to the judge deciding a case. And he never gives an account of why a federal judge’s sensibility about the demands of fairness should prevail over the sensibilities of democratic majorities, when the Constitution does not give a fairly unequivocal or discernible command that the majority will must be overruled. When briefly considering the obvious objection that he is recommending something fundamentally undemocratic, Strauss replies that “it is not the common law approach that makes our system undemocratic. What makes our system undemocratic,” he explains, “is judicial review: the practice of allowing the courts to have the last word on most issues of constitutional law.” (For “most issues,” read “all the really important ones.”)

But where did that “practice” come from? As Professor Clinton rightly noted, it does not spring in some authoritative way from the Constitution, and it cannot be found in the earliest precedents of the Supreme Court such as Marbury v. Madison. There is no originalist basis for judicial supremacy, for the “last word” on the meaning of the Constitution to belong to the judiciary. The only basis there can possibly be is Strauss’s own “common law approach” itself, which in truth has little affinity with the authentic tradition of the common law, and would be better described as a gradualist project of judicial usurpation. For the project’s admirers such as Strauss, the gradual usurpation of constitutional power by the judiciary has had largely happy results, and that is sufficient justification for the Living Constitution. Apart from this frank result-orientation, all the arguments for the living Constitution are circular, for the same reason that all the arguments against originalism are self-defeating.  And that is that once one ceases to speak of the law by reference to the integrity of its own original meaning, it is not long before one begins to talk nonsense instead, just as one speaks nonsense when saying “up” in outer space where there is no gravity.  In both cases one has come unmoored from any reference point independent of one’s own willful choices.

But Strauss does have one more argument against originalism, what he calls “Jefferson’s problem,” referring to Thomas Jefferson’s belief that “the earth belongs to the living” and that one generation cannot govern the next. Strauss badly misunderstands Jefferson, who wanted new constitutions drafted every nineteen years because he was an originalist who worried that, if our institutions did the right thing and abided by the constitution’s original meaning, later generations would find themselves subject to obligations they had no part in imposing on themselves. Strauss does not alert his readers to the cogent response to Jefferson by his much wiser friend James Madison, who reminded him that while the use of the earth may belong to the living, “the improvements made by the dead form a charge against the living who take the benefit of them.”

Our constitutional republic is ours to preserve, to alter, or to destroy. But it is also an inheritance, and the good work of our forebears in making it so beneficial to us imposes an obligation on us to treat it as a charter of government with an integrity of its own, and a meaning that is given to us and not made by us. It is the estate bequeathed us by our fathers and mothers. We may make our own improvements on it, but we the living must begin by understanding our debt to the dead. The “living Constitution” is premised on the rejection of such an indebtedness, and ultimately of constitutionalism itself.