The Living Constitution Revisited

Last fall marked the thirtieth anniversary of one of the most famous defenses of “living constitutionalism”: the late Justice William Brennan’s speech at Georgetown University, “The Constitution of the United States: Contemporary Ratification.” According to Brennan, judges should not seek to be guided by the Constitution’s original meaning—which, he suggests, is largely undiscoverable and is, in any case, unacceptably hostile to modern conceptions of individual and minority rights. They should instead ask: “What do the words of the text mean in our time?”

The “genius of the Constitution,” Brennan contends, “rests not in any static meaning it might have had in a world that is dead and gone, but in the adaptability of its great principles” to the problems of our day. On this view, the past meaning of the Constitution “cannot be the measure of the vision of our time.” Brennan defends this approach to the Constitution on the basis of the moral and political progress he believes it accommodates and encourages. For him, the judiciary’s commitment to living constitutionalism is necessary if the Constitution, over time, is to embody a more and more robust understanding of human dignity.

Brennan’s speech is worth revisiting because his vision of a living constitution continues to dominate much of our thinking about constitutional interpretation. It is the favored approach of our legal and intellectual elites, who dismiss originalism as nothing more than a set of rationalizations designed by conservative jurists to deny liberals the results they want. And it clearly continues to influence the current generation of liberals on the Supreme Court, whose ruling redefining marriage in last summer’s Obergefell case is inconceivable apart from some notion of a living, changing constitution.

Unfortunately, the undeniable power and popularity of Justice Brennan’s living constitutionalism are not justified by its intrinsic merits. Brennan’s approach is marred by several inconsistencies. Taken together, these inconsistencies rob it of any credibility as a method of interpreting the Constitution of the United States.

The Vision of the Founding Fathers

In the first place, Brennan’s living constitutionalism is inconsistent with the founders’ understanding of constitutionalism and of the exercise of the judicial power. We can see this most easily by looking to the most prominent public commentary on the judicial power at the time of the Constitution’s ratification: Alexander Hamilton’s Federalist 78.

Here, Hamilton contended that one of the key functions of an independent judiciary is to guard the Constitution and the rights of individuals from present majorities seeking “dangerous innovations in the government.” Hamilton emphasized that the representatives of the people—including their judges—were bound to adhere to the Constitution, no matter what contemporary wishes might run counter to it. According to Hamilton, “until the people have, by some solemn and authoritative act, annulled or changed the established form” of government, “it is binding upon themselves collectively, as well as individually.” Therefore, he concluded, “no presumption, or even knowledge, of their sentiments can warrant their representatives in a departure from it, prior to such an act.”

For Hamilton, then, the formal process of amendment is the proper mode by which the Constitution should be changed to reflect contemporary opinion. Judges and other public officials have no authority to change the meaning of the Constitution, even when they know that the public would approve the change.

Judicial Review, Living Constitutionalism, and the Rule of Law

Yet Brennan’s living constitutionalism is not only inconsistent with the founders’ idea of how the Constitution would function. It contradicts the rule of law itself—the very principle that judges, lawyers, and ordinary Americans hold to be essential to America’s experiment in constitutional self-government.

Today, both laypersons and constitutional lawyers understand judicial review—or the power of courts to declare a law invalid because it’s inconsistent with the Constitution—as an exercise in enforcing the rule of law. After all, the Constitution calls itself “the supreme law of the land.” Therefore, acts of Congress, the president, or the state governments that run contrary to the Constitution are unlawful and thus not binding.

This common understanding is rooted in the Supreme Court’s celebrated first use of judicial review in Marbury v. Madison (1803). The contemporary Court and modern commentators cite this fundamental precedent to justify the power of judges to strike down laws enacted by the people’s representatives. In that case, Chief Justice John Marshall reasoned that the authority of judges to declare a law void rests on the clear “duty of the judicial department to say what the law is” and on the fact that the “Constitution is to be considered, in court, as a paramount law.” In other words, according to Marshall the courts must determine what “rule” is applicable to a given case, and must be governed by the rules contained in the Constitution when those rules differ from the ones established in the ordinary law.

Intelligible Rules or Inspirational Text?

The kind of judicial review established by Marbury depends on our ability to view the Constitution as laying down intelligible rules, which in turn depends on its use of clear terms with fixed, determinable meanings—terms, in the Marbury case, such as “original jurisdiction” and “appellate jurisdiction.”

In contrast, Justice Brennan’s constitution is utterly incapable of acting as a rule of law. For Brennan, the Constitution is not so much a body of law laying down intelligible rules as it is an inspirational text. It is, he says, “the lodestar of our aspirations” to achieve more and more “progress” in the direction of “egalitarianism” and “human dignity.” Accordingly, the Constitution’s meaning “is not crystalline. The phrasing is broad and the limitations of its provisions are not clearly marked. Its majestic generalities and ennobling pronouncements are both luminous and obscure.”

If we are to secure the rule of law, then our fundamental law must establish intelligible rules that can be understood through rational inquiry. This is certainly not true of Brennan’s constitution. For him, the language of the Constitution is beautiful but imprecise. If the Constitution only warms the heart without giving light to the mind, however, then it cannot serve as the basis for any system of rationally intelligible rules. Judicial rulings issued on the basis of such a theory will have the character of inspired pronouncements of what is good and noble, not of logical conclusions drawn from reasonably established principles.

Serious Internal Inconsistencies

Finally, Brennan’s living constitutionalism is inconsistent not only with external standards of judgment—such as the founders’ understanding of the Constitution or the idea of the rule of law—but even with itself. That is, Brennan’s conception of judicial review as “contemporary ratification” is self-contradictory and incoherent. It cannot succeed in what it sets out to do and is therefore a failure even according to his own terms.

We can see this most easily if we compare Brennan’s insistence that the judge’s duty is to seek not his own but the community’s interpretation of the Constitution, on the one hand, with his later announcement of his constitutional opposition to capital punishment, on the other. A commonplace critique of living constitutionalism is that it is nothing more than a theoretical cover by which liberal justices rationalize rulings that they favor on the basis of nothing more than their own opinions about what is just and fair. Brennan is aware of this criticism and attempts to brush it aside by assuring his readers that his approach to the Constitution involves nothing of the sort. “Justices,” Brennan avers, “are not platonic guardians appointed to wield authority according to their personal moral predilections.” On the contrary, when justices “interpret the Constitution, they speak for their community, not for themselves alone. The act of interpretation must be undertaken with full consciousness that it is, in a very real sense, the community’s interpretation that is sought.”

This promise is revoked, however, by the end of Brennan’s speech. There, he turns to the question of capital punishment, which he regards as unconstitutional in all circumstances as a violation of the Eighth Amendment’s prohibition on “cruel or unusual punishments.” This claim is, of course, highly questionable as an interpretation of the constitutional text. Elsewhere, the Constitution explicitly contemplates death as a punishment for crime.

More to the present point, by insisting that capital punishment is unconstitutional, Brennan openly jettisons any pretense to be seeking the community’s sense of what the Constitution means. He admits that his view of this question is not shared by a majority of his “fellow justices” or a majority of his “fellow countrymen.” He is therefore reduced to proclaiming his “hope” that his death penalty abolitionism embodies the constitutional understanding of some future “community” that strives “for the dignity of all.” Brennan, however, cannot realistically claim to know that such a community will arrive, and therefore his “hope” cannot be invoked to save him from the charge that he is doing precisely what his argument forbids: letting his official judgments be guided by his personal views.

Not Community Consensus—Personal Opinion

Moreover, this is not an accidental defect in Brennan’s approach that could have been avoided by his adopting a more modest position on the specific question of capital punishment. It is rather a flaw rooted in Brennan’s general principles. Brennan seeks to be guided not by the original understanding of the Constitution, which he regards as unacceptably retrograde, but instead by the contemporary community’s understanding, by “what the words mean in our time.” But this contemporary community understanding does not really exist. After all, cases can only come before the Supreme Court because the litigants, who usually represent much larger forces in the country, differ about the meaning of the Constitution. Brennan himself admits this, noting that the cases the Supreme Court hears often involve “the issues upon which contemporary society is most deeply divided.”

Faced with this inevitable societal disagreement about the meaning of the Constitution, what is the living constitutionalist to do? How does he determine which interpretation is the community’s, when the community itself cannot agree? He can try to determine which view is the predominant view, but that reduces judicial review to a reflex of majority opinion, which Brennan rightly insists it should not be. In any case, having the Supreme Court simply mirror prevailing public opinion would defeat the purpose of having a constitution and a judicial branch designed to limit majority power.

The only remaining alternative—at least for the living constitutionalist, who rejects the possibility of being guided by the original understanding of the Constitution—is to decide what should be the community’s interpretation and which litigant therefore should, in a moral and political sense, prevail. This, however, is partisanship and not law, and it again involves the judge in doing what Brennan claims to forbid: resolving cases according to his own personal moral judgment.

Justice Brennan’s living constitutionalism is inconsistent with the founders’ understanding of the Constitution, with the very idea of the rule of law, and with the possibility of judging as something distinct from the willful imposition of the judge’s own opinions. Nothing but arbitrariness can emerge from such an approach. And arbitrary government, even when cloaked in the language of law, is incompatible with the constitutional government that Americans have inherited and are obliged to try to preserve.