Who Killed the "Living Constitution"?

By MICHAEL C. DORF
Monday, Mar. 10, 2008

In a widely reported speech at the University of Central Missouri (UCM) last week, U.S. Supreme Court Justice Antonin Scalia told his audience that the "living Constitution" is bad for democracy. Scalia has poked fun at the living Constitution many times before, even suggesting, jokingly, that he prefers the "dead Constitution." But the substantial publicity that Scalia's UCM speech generated--not to mention a looming Presidential election in which judicial appointments will likely play some significant role--makes this a fitting moment to examine the claims for and against the living Constitution.

In this column, I shall argue that the living Constitution is a problematic metaphor, but only because originalists like Justice Scalia either misunderstand or mischaracterize what it stands for.

What a Metaphor is For

According to the press reports of his UCM speech, at one point Justice Scalia compared judges and lawyers who champion the "living Constitution" to stockbrokers who tout stocks by saying that recent poor performance simply means that the markets are resting before they begin to climb again. "Get real," Scalia said. "The stock market is not a mountain climber, and the Constitution is not a living organism. . . . It's a legal document."

Well, duh. Nobody thinks that the Constitution is literally a living organism in the way that a person, a dog, or a tree is. Attempts to feed or water the document in the National Archives would simply damage a precious relic.

When Justice Scalia's hypothetical stockbroker talks about the markets "resting," he is speaking metaphorically, just as champions of the living Constitution speak metaphorically. In the former case, we can sensibly ask whether the metaphor of markets as mountain climbers catching their breath is an instructive one. Do the aggregated actions of millions of individual investors work as though they were a mountain climber, and in what respects? Maybe the mountain climber is a bad metaphor, but if so, that must be because there are key differences between mountain climbers and markets that the metaphor obscures. Simply pointing out that a market is not a mountain climber is unhelpful.

Likewise, we should ask: Is a living organism a good metaphor for the Constitution, or a bad metaphor for it? To answer that question, we might want to know what is meant by the "living Constitution" in the first place.

The Living Constitution in American Jurisprudence

The Supreme Court itself rarely uses the precise term "living Constitution." Its most significant invocation in recent memory was in the 1980 case of Rummel v. Estelle. There, a majority of the Court rejected a claim that a sentence of life imprisonment for a third-time non-violent recidivist amounted to cruel and unusual punishment in violation of the Eighth Amendment. In a dissent that relied on contemporary notions of proportionality (that is, the idea that the punishment should, at least roughly, fit the crime), Justice Lewis Powell, joined by Justices William Brennan, Thurgood Marshall, and John Paul Stevens, stated that the Court's job was to construe "a living Constitution." Powell equated a "cruel and unusual punishment" with a punishment that, in his estimation, "virtually every layman and lawyer" would regard "as grossly unjust" in light of the crime committed.

If the exact phrase "living Constitution" is a rarity in the Supreme Court's precedents, however, similar language abounds therein. For example, in a 1988 case involving a student newspaper, Hazelwood School Dist. v. Kuhlmeier, Justice Brennan's dissent--joined by Justice Marshall and Justice Harry Blackmun--approvingly quoted a lower court decision to the effect "that our Constitution is a living reality, not parchment preserved under glass."

Nor did biological metaphors for the Constitution first come into being only in the late Twentieth Century. To the contrary, Justice Oliver Wendell Holmes Jr. famously wrote in the 1920 case of Missouri v. Holland "that when we are dealing with words that also are a constituent act, like the Constitution of the United States, we must realize that they have called into life a being the development of which could not have been foreseen completely by the most gifted of its begetters."

To be sure, in the Holland case, Holmes was referring directly to the United States, not the Constitution itself, as alive, but six years earlier, in Gompers v. United States, even Holmes called "the provisions of the Constitution . . . organic living institutions." Likewise, Justice Felix Frankfurter, concurring in the 1952 case of Joseph Burstyn, Inc. v. Wilson, declared, "The Constitution, we cannot recall too often, is an organism."

Although there is thus a long tradition of speaking of the Constitution as alive, in recent years most academic and judicial citations of "the living Constitution" have been critical. The turning point appears to have come in 1976, when then-Justice William H. Rehnquist wrote an essay in the Texas Law Review. Rehnquist's "The Notion of a Living Constitution" distinguished between Holmes's idea that where the Constitution speaks in broad language, it leaves to future generations the role of filling in the details--which he thought universally acceptable--and a different usage of the term "living Constitution," which calls for "the substitution of some other set of values for those which may be derived from the language and intent of the framers."

Hence, the late Justice Rehnquist, like Justice Scalia, appeared to use the term "living Constitution" as a foil for his own preferred methodology: originalism.

The Unfair Critique of the Living Constitution

If the "living Constitution" metaphor is understood in the way that Rehnquist and Scalia understand it, then it is easy to see why the metaphor--if taken as a jurisprudential roadmap--would be bad for democracy. When judges rely upon the Constitution itself to hold a legislative act invalid, they serve the higher law, duly adopted pursuant to the rigorous ratification process. However, when judges "substitute" their own values for the Constitution's values, and then use those substituted values as the basis for invalidating legislative action, they illegitimately take important decisions away from the people's elected representatives.

Yet the foregoing is a valid critique only if champions of the living Constitution really think that they have a warrant to substitute their views for those of the Constitution. In fact, however, no serious judge, lawyer or academic argues for that.

Originalists and living-Constitutionalists both agree that where the constitutional text is clear, it controls. For example, Article II states that no person under the age of 35 can be President, and no champion of the living Constitution would argue that nonetheless an especially precocious 32-year-old should be deemed Presidency-eligible simply because she dislikes the textual limit.

Originalists and living-Constitutionalists part ways over how to interpret ambiguous provisions of the constitutional text. Originalists say that judges should resolve textual ambiguity by consulting the prevailing views of the Founding generation. (I explored the relation between this formulation of originalism and the more traditional focus on "framers' intent" in an earlier column, but we can put aside these nuances here.) The act of ratification by that earlier generation of Americans gave the text its power as law, and therefore, that earlier generation's understanding should prevail, originalists say.

By contrast, living-Constitutionalists believe that while the original understanding has some bearing on the Constitution's contemporary meaning, it is not the whole story. For living Constitutionalists, the act of ratification by people who are long dead, and whose numbers did not include any women or enslaved African-Americans, does not suffice to make the Constitution effective today. For us living-Constitutionalists, the Constitution's current authority derives at least in substantial part from the fact that we the living people accept it as authoritative. And if our acceptance validates the Constitution, then, as Justice Powell said in the Rummel case, the way in which contemporary Americans understand the Constitution's language should play a substantial role in how the courts interpret that language.

Understood in this way, the notion of a living Constitution is simply an effort to interpret the Constitution, not to replace it. Justice Scalia and others may still have reasons to prefer the dead to the living Constitution, but their core claim--that the dead Constitution is the real Constitution--proves, upon inspection, to be nothing more than an assertion of the power of the dead few to rule the living many from the grave.

In his 1976 essay, Justice Rehnquist charmingly admitted that it would be difficult to market anything called the "dead Constitution." The problem, it turns out, is not just a matter of marketing, but the product itself. The dead Constitution is dead. Long live the living Constitution.


Michael C. Dorf is the Isidor & Seville Sulzbacher Professor of Law at Columbia University. He is the author of No Litmus Test: Law Versus Politics in the Twenty-First Century and he blogs at michaeldorf.org.

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