August 2, 2010

These 2 books are good at showing "the intellectual bankruptcy of originalism" but not so good at telling us what could replace it.

Says Harvard lawrpof Adrian Vermeule, reviewing "Keeping Faith with the Constitution" and "The Living Constitution":
Keeping Faith with the Constitution [buy it!] is a typical manifesto written by law professors committed to public service and constitutional politics. It breaks no new ground theoretically. Their idea of constitutional fidelity is an old one, rediscovered in each generation.....

Constitutional fidelity appeals to those who wish to square the original Constitution with a commitment to the bien-pensant positions of the day, which can be justified as faithful to the founders’ higher principles, even if not to their specific expectations....

[In The Living Constitution, which you can buy here, David Strauss] says throughout that the common-law constitution not only changes, but “evolves” or “adapts”; and he implies that this evolution results in improvement over time, as morally or pragmatically undesirable features of constitutional law are weeded out...

[Strauss argues that a] common-law constitution works well, or at least better than the alternatives, because it is the work of generations of epistemically humble judges making incremental improvements over time. The common-law approach to constitutionalism thus draws upon the “accumulated wisdom” of the past, embodied in precedents....
One hopes that he will soon provide a more rigorous theoretical treatment of his common-law constitutionalism, which is to date the most promising version of living constitutionalism by far.

20 comments:

Salamandyr said...

Except we don't have a common law Constitution, we have an actual one. It has words that mean stuff. One can argue that an evolving, mutual agreement common law, much like Great Britain has, is superior, but that's not America as it stands now. What Strauss is arguing is the abandonment of the principle we're all governed by an actual "highest law of the land". This seems barmy to me.

If they want to change the highest law of the land, there's a process, it's called an Amendment. If the Founders had not expected us to be bound by what the Constitution says, they would have seen no reason to provide a framework to change it, since if we plan to ignore it at our pleasure, then it doesn't really matter what it says.

But it's hard to amend the Constitutions. Well, it's supposed to be!

I didn't say much about the "Constitutional Fidelity" argument, because really, what is there to say? It's not like anyone appealing to it actually cares about the "higher principles" of the Founders if it in any conflicts with their own. It's just an attempt to wrap their own position in their opponents vocabulary.

DADvocate said...

he implies that this evolution results in improvement over time, as morally or pragmatically undesirable features of constitutional law are weeded out...

In an ideal world this would be the case. But this is not an ideal world and we're getting plenty of undesirable features added.

JayC said...

"One hopes that he will soon provide a more rigorous theoretical treatment of his common-law constitutionalism"

How can you provide a "rigorous theoretical treatment" of "making it up as you go"?

Hagar said...

The common-law approach to constitutionalism thus draws upon the “accumulated wisdom” of the past, embodied in precedents....


It seems to me that those who argue in this vein, generally actually want to draw upon the conventional wisdom of the present.

Calypso Facto said...

Amen, Salymadyr. No one said the Constitution is set in stone. As proof, witness the many amendments. But our current philosopher-kings would rather just change law by fiat, avoiding the messy democratic process. As with immigration, they find it much easier to just ignore the laws they don't like, encroach on everything else under the guise of regulating commerce, and claim it all as de facto "common law".

Lance said...

...because it is the work of generations of epistemically humble judges making incremental improvements over time.

The Warren court was neither humble nor incremental, epistemically or otherwise. They knew what they wanted and they made up the legal theory that would provide it.

chuckR said...

Most bien pensant idees turn out to be tres mauvaise and no amount of Frenchification of terminology is gonna change that.

Don't like the Constitution? There is an amendment process that saves us from the bien pensants (or is that bien pissants?)and provides a legitimate way to change the bedrock law.

tim maguire said...

While I agree that Originalism has problems and we cannot as a practical matter strictly adhere to the founders' intent (because many things have since come up that they did not express an intent on), the sad fact of the matter is that those who argue for a "Living Constitution" are in actuality arguing for no constitution at all. "Living Constitution" is simply an excuse for ignoring the actual Constitution whenever and wherever they feel like. They reject limited government and the concepts of human rights that it is based on.

There simply must be some things the government cannot do no matter how attractive they may seem to this or that group of political activists.

chuckR said...

Tim, Tim, Tim

What could possibly go wrong with lawmaking by whim? Especially if it's my beneficent whim. I will of course cloak my whims with higher purpose, like all scoundrels do.

tim maguire said...

You convinced me Chuck. But only so long as it is you who decides when we do or do not follow the constitution. I still don't trust those other guys.

Roger Sweeny said...

I could describe my law professors a lot of ways. "Epistemically humble" is not be one of them.

Quite the opposite.

Fen said...

"We have to pass the amendment before we can find out what's in it"

Kirk Parker said...

Jayc,

How can you provide a "rigorous theoretical treatment" of "making it up as you go"?

Hey, you just did!

SMGalbraith said...

Proponents of the organic or "living" Constitution never seem to me to be concerned that that evolution may diminish liberty, that it may lead to greater diminution and not greater expansion of liberty. Why will the Constitution grow in only a favorable way and not a harmful one?

In any event, it seems to me that instead of always wanting to change the Constitution to "keep up" with the times perhaps the times need to be changed to be in touch with the Constitution?

Yeah, no one is going to get much praise from the legal community with such thoughts.

Zach said...

[Strauss argues that a] common-law constitution works well, or at least better than the alternatives, because it is the work of generations of epistemically humble judges making incremental improvements over time.

Strauss completes Madison's syllogism:

"If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary."


Who knew so many angels were attracted to the judiciary branch?

A.W. said...

what it comes down to is this. Its one thing to say the dead white men should hold no sway over us, or that their exact meaning is indeterminate. that pulls the fangs from originalism, but its not a fait accompli that then living constitutionalism takes its place. the right of judicial review was always understood as enforcing the constitution, against those who would violate it. the dead white men argument means it shouldn't be enforced. the indeterminate meaning argument means its hard to know what they meant.

But what right do you have, absent a clear constitutional commmand, to strike down a statute? What is the basis. every time i ask liberals, they go, "well, that's just our traditions." in short because dead white men did it, i guess. but those traditions, specifically those precedents, made it clear it was only legitimate if the constitution commanded it.

so if the dead white men should have no power, then the judiciary should have no power. and if the judiciary believes that the constitution controls, but they just aren't sure what it is saying, then why should then then be able to make crap up and impose it on the rest of us? even if they dress it up in some gestalt of the times argument, which is always necessarily selective?

Now i suppose you could read the 9th amendment to meant that whatever power is not explicitly granted to the government is denied it, but since when do liberals believe in that. if they believed in that, then they would oppose obamacare, and that would be a necessary casualty of their point of view. they want freedom from government intrusion on a limited number of so-called social issue, and then massive intrusion on everything else, and they face a constitution that considers that distinction to be almost completely alien to the document.

Richard Dolan said...

When constitutional law is the subject, the real issue is the scope of judicial power to trump legislative or executive action. That power is rooted in the idea that the Constitution is a source of positive law rather than mere political directives. Some parts of the Constitution actually have the definiteness that is usually required of positive law -- the sort of provision that, when applied and without regard to the preferences of the judge doing the applying, will lead to the same result in most cases. But many parts of the Constitution are the exact opposite of positive law: they are vague to begin with and lose any semblance of definiteness when applied in novel contexts -- the Due Process and Equal Protection clauses being the most obvious. In those cases, it is typically the value preferences of the judge(s) doing the deciding that best explain the outcome.

Originalism -- the idea that the judiciary should construe constitutional text according to the ordinary meaning of the constitution's words as of the time of the adoption of the particular text at issue -- has one great virtue and many serious faults. The virtue is that it seeks to make the result turn on what the Constitution says, and not the policy preferences of the judge(s) doing the deciding. But the difficulty is that, in the most controversial cases, originalism isn't much of a help in reaching the actual decision. Constitutional fidelity and common law constitutionalism reject originalism's only virtue -- they express confidence that judges are best qualified to devine the Constitution's higher values, and then enforce those values against the rest of us -- while sharing most of originalism's many faults.

The only solution I see is to give up on the idea that the Constitution is a unitary source or positive law. Where its provisions are too vague to provide a rule that can be applied without regard to "higher principles", judges would be better off concluding that, to the extent the Constitution addresses the subject at hand at all, it does so only as a political directive but not as a source of positive law that judges can apply. Lacking a rule of sufficient definiteness to apply as positive law, judges should back off.

The only surprising thing in Vermeule's article is his attempt to rescue common law constitutionalism from his own devastating (albeit unoriginal) critique. In practice, it's just 'constitutional fidelity' in slow motion. Perhaps the explanation is that neither Vermeule nor the other professors who like to write about these subjects has ever spent much time litigating cases.

Doug Wright said...

Look at the number of amendments, after the Bill of Rights, and notice how many are concerned with presidential election or succession. Sure, there have been other subjects like the rights of citizens, yet we seem most concerned with getting presidential elections right and protecting the republic from scoundrels.

wv: ulture is something we tend to ignore.

Cheers.

Eric said...

he implies that this evolution results in improvement over time, as morally or pragmatically undesirable features of constitutional law are weeded out...

As Alito noted in an NPR interview, this sort of thing defeats the purpose of having a written constitution at all and turns the judiciary into a third branch of Congress.

sol said...

This is the best argument for the "living constitution".


`When I use a word,' Humpty Dumpty said, in rather a scornful tone, `it means just what I choose it to mean -- neither more nor less.'

Why do the Humpty Dumptys oppose using amendments? Is it because they prefer to sit on the fence and not make any permanet decisions?