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Wednesday, August 24, 2005

Is the Living Constitution Dead?

Dahlia Lithwick asks whether there can be a spirited and reasonable defense of a Living Constitution--or whether Scalia is right.

She writes:

A Nexis search for the words "living Constitution" turns up literally dozens of stories by conservatives bashing the premise into a hopeless pulp. But it's hard to find a creditable recent defense of the Constitution as something greater than the span of its own four corners. And I wonder why.

Is it because the words "living Constitution," like the words "feminist" or "liberal," have become wholly appropriated by the Rush Limbaughs of the world? Or is it something deeper—a sense on the part of serious liberal thinkers that Roe v. Wade, with its kabbalistic talk of constitutional penumbras and emanations, really is indefensible? Is it, as I have argued before, that we are all secretly afraid that Scalia is right? That a living Constitution is nothing more than a bunch of monkeys on chandeliers?

Many prominent liberal thinkers have retreated from William Brennan's soaring language about the need for a "living Constitution," because, I think, it embarrasses them. The idea that, as Brennan wrote, "It is arrogant to pretend that from our vantage we can gauge accurately the intent of the Framers on the application of principle to specific, contemporary questions," has been rebutted roundly with the notion that it's even more arrogant for nine unelected officials to gauge anything at all. Calls for minimalism or pragmatism or incrementalism are now in vogue for progressives. That has all the taste of penumbras and emanations, but only half the calories.

So, I turn to you, dear readers, smart thinkers, and posters of great wisdom in the Fray, to ask simply: Is the living Constitution dead? Are the critics correct—was it all just a great drunken binge of Brennan and Thurgood Marshall's? What is left in its place? Is there room for a Brennan-esque defense anymore? Or am I correct in guessing that Scalia is right this time? Send replies to [email protected] . The best of your answers will be coming soon to a Jurisprudence near you.

Go join in the fun . . . and tell her I sent you.

Posted by Hillel Levin on August 24, 2005 at 11:08 AM in Hillel Levin | Permalink

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Comments

Al Gore said, "I would look for justices of the Supreme Court who understand that our Constitution is a living and breathing document, that it was intended by our Founders to be interpreted in the light of the constantly evolving experience of the American people."Specifically, I think Al Gore would like said living and breathing document to "outgrow" Art. II 1 Cl.2, right? ;)

Posted by: Simon | Aug 25, 2005 11:46:41 AM

Some evidence that the "living and breathing" label isn't dead, or wasn't last year: In his How Appealing interview, Judge Reinhardt described himself as one of those "judges who treat the Constitution as a living, breathing instrument." Al Gore said, "I would look for justices of the Supreme Court who understand that our Constitution is a living and breathing document, that it was intended by our Founders to be interpreted in the light of the constantly evolving experience of the American people."

Posted by: Chris | Aug 25, 2005 10:44:22 AM

Is "the living constitution" dead? If it is, no-one seems to have warned six current justices of the supreme court of their necrophilia. Scalia is right when he says that the living constitution is fundamentally invalid - but, unfortunately, he is also right when he says that we are in the age of the living constitution. It's a tremendously seductive doctrine, for liberals and conservatives alike - and I think it's safe to say we will not have seen the last of it for many years.

Isn't Justice Breyer about to publish an apologetic for the living constitution? Perhaps the reason Dahlia is prematurely interring the still-breathing monster is that those who defend the doctrine rarely refer to it by the name its detractors do. It's like doing a search for fascist parties, finding none, and declaring that ideology extinct. Hardly - it's just that those who adhere to such views hide behind coy euphemisms, in an attempt to escape the heritage of their views.

Posted by: Simon | Aug 25, 2005 9:53:55 AM

Chris: neat take. Focusing hardcore on the language part of it.

I'm going to try to feed Dahlia something she can use - the first part of my oft-promised and never-yet-delivered Scalia Mega-Post, in which I take on Scalia's trope and target of derision, the "living Constitution" - which I would argue is as silly as taking on the "Constitution in exile" movement which exited so much comment at Volokh.

The Constitution is not out of town; nor is it alive, any more than the United States is alive. But, we can use metaphors. And I will, I will.

Eh N.

Posted by: Eh Nonymous | Aug 25, 2005 9:14:52 AM

I may have summarized my theory here before, but it didn't get a lot of reaction. My idea is that the philosophy of language can help us see how the Constitution is only partly dead. If we distinguish meaning (or Fregean sense, or Carnapian intension, or Millian connotation) from application (Fregean reference, Carnapian extension, Millian denotation), then we can see how the application can change--i.e., be "alive"--even while the meaning stays the same. Change in the reference-yielding facts about the world will change constitutional outcomes, and the Framers can be ignorant, or wrong, about the reference-yielding facts. I say, go back to Sutherland's vision in Euclid v. Ambler Realty:

[W]hile the meaning of constitutional guaranties never varies, the scope of their application must expand or contract to meet the new and different conditions which are constantly coming within the field of their operation. In a changing world it is impossible that it should be otherwise. … [A] degree of elasticity is thus imparted, not to the meaning, but to the application of constitutional principles…

Send me an email and I'll send my paper.

Posted by: Chris | Aug 24, 2005 1:55:48 PM

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