Balkinization
Because of Jack's recent posts on living constitutionalism this might be viewed as a response, but I don’t mean it that way. His posts have been a wonderful and much-needed contribution to our understanding of living constitutionalism. I am recommending them to my students.I have been thinking about how to define a “strong”, “robust” or “hard core” version of living constitutionalism in order to distinguish it in a clear way from opposing views. This is difficult if living constitutionalism is defined in a watered-down way that makes it too easy for most (not all!) to nod heads and agree that the judiciary has adapted the often vague text of the Constitution to changing historical circumstances.
Hard core living constitutionalism means the Constitution and constitutional change should be described, explained, interpreted, and justified in a fully historicized way. Properly understood, living constitutionalism is a full context sport. Let’s take interpretation, since in the DC gun case oral argument we had an outstanding example of undead constitutionalism, the kind that doesn’t live but talks. When interpreting the text or a principle, concept or institution (such as federalism, separation of powers, sovereignty) we first ask whether the context in which that phrase or principle is interpreted has changed since 1787 (or when adopted). Among other points, this means asking whether the asserted state purpose existed in the eighteenth century. This is especially relevant in the case of gun control because the change in circumstances has been so dramatic. In 1787, cities were not the complex urban areas they are now and professional police forces did not exist. The urgency present during my lifetime about crime control was not evident. Any approach that ignores this change in context will inherently undervalue the state purpose behind the legislation and privilege what we would now call a libertarian theory of the state.
And isn’t that what happened at oral argument? As Dahlia Lithwick recounts, more time was spent on grizzly bears than crime control, despite Justice Breyer’s efforts. I would have thought a little more attention was due on the part of lawyers arguing for DC to the threat guns can pose to police officers. Focusing on police helps make the point about the difference between the eighteenth century and today. Unless we are talking about an absolute right, a right so important that the state justification is irrelevant, the justices must always consider the rationale behind the legislation. But if the rationale is not reasonably analogous to any eighteenth-century purpose, making originalist analysis the sole touchstone will be biased against the state. That might be catnip for libertarians, but that doesn’t describe the constitutional law status quo.
What happened in Heller makes me more sympathetic to Jeremy Waldron’s critique of judicial review. Is there any area of policy where we would accept no evidence beyond what happened in the eighteenth century? The kind of discourse that results looks a bit lunatic from the outside.
Ignoring context and paying attention only to eighteenth century evidence also harmed deliberation over the Clinton impeachment. Scholars were so fascinated with the eighteenth century meaning of “high crimes and misdemeanors” that they forgot to analyze closely the relevant prior impeachments of Presidents Johnson and Nixon. As a result, they missed what was really different and dangerous in the Starr investigation – that it could have easily morphed into the first indictment and prosecution of a sitting president.
The same tendency has plagued the debates over presidential powers in wartime and the president’s power to initiate war. More attention has been shown to episodes such as going after the Barbary pirates and the Civil War than to the changes in the U.S. role in the world (and renewed attention to moral values such as those in the Geneva Convention) after World War II.
Over time, we have acquired experience with what constant resort to an eighteenth century baseline means. It leads to “law-office history”, just-so stories about framers’ intent, and a relentlessly “Whig” approach to U.S. constitutional history in which the winners are always imbued with contemporary values. It also leads, believe it or not, to Supreme Court justices actually ignoring changes made by subsequent amendments, as in the Burger and Rehnquist Court federalism opinions that failed to mention the fourteenth amendment.
Context matters not just because the Constitution is vague in some respects, but also because it is short. It was deliberately not an attempt to settle a vast array of policy questions in the manner of our state constitutions. By and large, it leaves questions of policy for politicians. But contexts for policy change. Unless we want to keep having constitutional debates set in an eighteenth-century policy context, we must consider a role for changing circumstances in constitutional interpretation. Changing circumstances include subsequent amendments, precedents, and key constitutional events, the sum and substance of a constitutional tradition that connects us with the past but is not derived from it exclusively.
