Monday, August 29, 2005

Who Believes In a Living Constitution?

Jack Balkin in Slate today argues that we are all living constitutionalists. Looking at the outcome of an originalist methodology applied to most of the "great" cases of the 20th century, he concludes that no sane citizen would want to live under such a regime. Therefore we (including self-professed originalists) are all secretly happy the Court has for decades applied a more "progressive" view of the Constitution.

I respectfully disagree; not with the idea that I'd abhor an originalist world, but with the concept that the application of originalism to constitutional problems would necessarily lead to that world. No originalist I'm familiar with wants a society where flogging is legal. But if the majority wants to outlaw flogging, they are more than capable of doing it. If society wants to expand the Interstate Commerce Clause to grant the government absolute power, the people can invoke the Article V amendment power. But I'd guess we do not have a broad consensus on this point (although the vast majority of Americans would like to see a more expansive federal power than one envisioned by the original understanding of the Constitution).

The reality is that many of the landmark 20th century constitutional cases would have been accomplished by legislation or amendment. If the Court had continued to strike down New Deal legislation, Roosevelt's court-packing plan might have worked. Otherwise, the Constitution would have been amended. Or the legitimacy of the Court would have been greatly diminished.

Of course many of those decisions would not have legislated, including, but not limited to, Roe v. Wade, Miranda, and Craig v. Boren. And that's the crux of the issue. Balkin claims some of these decisions "are evidence of our gradual progress as a nation. They are what make us a country conceived in liberty and dedicated to the proposition that all people are created equal." He was referring particularly to Griswold v. Conneticut, Brown v. Board of Education, Craig, and Loving v. Virginia. Those cases probably are fundamental parts of constitutional doctrine. But they cannot be bunched together as if an originalist world would have made them impossible.

There's substantial evidence that Brown v. Board of Education reached an originalist conclusion (although used a method considered anathema to originalists). Moreover, in my eyes, Loving was similarly originalist in ends. If the 14th Amendment was designed to enshrine equality between the sexes, and the anti-miscegenation statues were created to separate the races on the assumption that one is inferior, the 14th Amendment would have to strike them down. We cannot even argue that originalism compels upholding the statutes because they existed when the Amendment was ratified simply because they didn't. The anti-miscegenation statute struck down was only passed in 1924.

Both Craig v. Boren and Griswold cannot be sustained under many theories of originalism. The former because the 14th Amendment was likely only passed to prohibit discrimination on the basis of race and the latter because no right of privacy can be found to be part of the original understanding. But not all originalists would agree. Randy Barnett, an originalist more of the libertarian bend, has argued that a presumption of liberty is implicit in the Constitution. That presumption is great enough to encompass a right to privacy. Barnett wrote a brief in favor of striking down anti-sodomy laws (although he based his argument on the illegitimacy of those state laws as exceeding the state's police power). His brand of originalism does not seem to compel state intrusions into the marital bedroom.

Even more interesting, Balkin considers his view (that we must look to the original understanding of the words, but not the original expected application) similar to Barnett's. He there argues that originalism and a living constitution can exist concurrently. Yet, his Slate article portrays the two as adversaries. Is Balkin afraid to legitimize originalism in any form in a more public forum?

There's much more to analyze in this article, especially his attack on originalism's justifications, but that's for another time.

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