by Ray Raphael
“Let me put it this way,” Justice Thomas said in a 2008 talk. “There are really only two ways to interpret the Constitution—try to discern as best we can what the framers intended or make it up.” “Make it up” refers to originalism’s rival, the so-called Living Constitution, which Justice Scalia characterizes as “a body of law that grows and changes from age to age, in order to meet the needs of a changing society.” It is the originalists’ bête noire. “The Constitution that I interpret and apply is not living but dead,” Justice Scalia scoffs.38
“I certainly do not regard the Constitution as something that ‘grows and changes’ by some mystical kind of organic, morphing process of the sort Justice Scalia mocks,” protests Justice Scalia’s longtime antagonist Laurence Tribe, a professor of constitutional law at Harvard Law School who has argued dozens of cases before the Supreme Court. “It seems to me quite impossible to sustain the proposition that understanding or meanings frozen circa 1791 can possibly serve as the definitive limits to those freedoms as enforced today,” he writes. Instead, the Constitution in 1788 and the Bill of Rights in 1791 were “launched upon a historic voyage of interpretation in which succeeding generations … would elaborate what the text means in ways all but certain not to remain static.”39
Justice Stephen Breyer, who has served with Scalia on the Supreme Court since 1994, has outlined a methodology to justify this evolutionary approach. Judges must first take the wide view of the Constitution and then interpret its various components in ways that further its overall purpose. The initial step in constitutional interpretation, he says, is to identify the critical values underlying the various clauses; next, judges should evaluate the “likely consequences” of their decisions in terms of those values. The overriding value, he says, is “active liberty” or “a sharing of a nation’s sovereign authority among its people.” This is “the Constitution’s democratic objective.”40
These methodologies are far too general, originalists counter. Justice Scalia, playing on Professor Tribe’s provocative metaphor, states: “When the question arises, as it must in any reader’s mind, which provisions embark ‘upon a historic voyage of interpretation’ and which stay home—and the further question, what determines the direction of those that wander—Professor Tribe … acknowledges that he does not know the answer to either of these questions.” Taking the image one step further, Justice Scalia refers to Tribe’s “vagrant Constitution” and complains that such a conjured text is “indistinguishable from poetry.”41
Justice Scalia boasts that “the originalist at least knows what he is looking for: the original meaning of the text.” Yet, though the Constitution is real—it is written on parchment and we all vow to live by it—its so-called original meaning is quite literally a fiction, conjured by trying to reconstruct how anonymous citizens in 1788 or 1791 might have understood the Constitution and the Bill of Rights. If the Living Constitution is poetry, originalism is fictive prose. Neither methodology adequately reflects how people today actually use the Constitution. In practice, we are all originalists, basing arguments when we can on what the founders said and did; we are nonoriginalists as well, adapting words from the founding era so they make sense to us today; and we are all textualists too, claiming the same starting point: the text itself. Yet precise applications, and the theories that justify them, differ markedly.42
Developing a consistent method for interpreting the Constitution—and then sticking to it—is no easy matter. One method, for starters, is to distinguish two sorts of provisions within the document, those that establish “concrete or dated rules” and those that lay out “abstract principles.” The Constitution’s Preamble and provisions in the Bill of Rights, for example, express abstract goals and values; subject to interpretation, their precise application will evolve over time. Most provisions in the body of the Constitution, however, are more precise. They stipulate how old a president must be, how he will be selected, how long he will serve, and who could try his impeachment, if it comes to that. Because the Constitution and the Bill of Rights lack “stylistic homogeneity,” writes legal philosopher Ronald Dworkin of New York University Law School, rules and principles may be treated differently. Whereas rules are frozen in time, “majestic” principles should be revisited “generation by generation.”43
By contrast, Justice Scalia insists that even abstract principles cannot be subjected to evolutionary interpretations. The meaning of each principle is “rooted in the moral perceptions of the time” (his emphasis). Imagine, though, if the nine justices on the Supreme Court in 1954 had used this standard in Brown v. Board of Education, which questioned whether “separate but equal” schools violated the “equal protection” clause of the Fourteenth Amendment. The case would turn on whether the congressional authors and sponsors of the amendment in 1866, and/or state legislators who ratified the amendment over the course of the next two years, thought that the principle of equality was compatible with racial segregation. That is an interesting if somewhat esoteric historical question with evidence to support both sides, and any answer would be tentative at best. It is at least plausible that moderates in state legislatures from 1866 to 1868 would not have voted to ratify the amendment had they thought it required the schools their children attended to be integrated, but we can never be certain. Nevertheless, to determine whether “equality” in 1954 necessitated the integration of public schools, justices not necessarily steeped in the history of Reconstruction would need to interpret evidence from almost a century earlier, in a country just rocked by the Civil War and still replete with racial and sectional tensions, and make a final pronouncement on the “moral perceptions” of that time.44
Even the doctrine of coverture (a married woman has no legal existence beyond her husband, so she can possess no property of her own) could receive constitutional protection by a strict adherence to Scalia’s “moral perceptions of the time.” Whereas the Nineteenth Amendment gave women the right to vote, it did not address property rights or coverture, which embraced a moral perception of the founding generation, what we now call a family value: the man of the family owns the property and calls the shots. That “moral perception of the time,” embodied in eighteenth-century state statutes, was left unaltered by the Nineteenth Amendment; a woman could vote even if she owned no property. All subsequent laws that ran counter to it, including those that terminated coverture, should be considered unconstitutional under a consistent application of Justice Scalia’s standard.45
There is clearly something amiss here, and constitutional scholar Jack Balkin of Yale Law School, among others, analyzes the fallacy. Originalists like Justice Scalia confuse “original meaning”—what people at the time thought a provision meant—with “original expected application”—how people at the time thought a provision would be applied in specific situations. There is a significant difference.46
Consider Justice Scalia’s stance on capital punishment and his particular attention to a clause within the Fifth Amendment: “No person shall be … deprived of life, liberty, or property, without due process of law.” This indicates that a person can be deprived of life with due process of law. The framers of the Bill of Rights no doubt considered dismemberment a cruel and unusual method of executing a heinous criminal, but certainly not hanging, a common practice for the era. That was how people at the time expected the principle to be applied.47
Yet when the Eighth Amendment was written and ratified, public lashing and branding of a hand were common punishments for minor offenses. Because the expected application of the “cruel and unusual” standard would not have prohibited such practices, an originalist judge today, faced with a prisoner’s complaint that he was whipped and branded for shoplifting, should declare those punishments well within the limits of the Constitution. In practice, though, it would be difficult to find a modern judge of any persuasion willing to do so, and this shows that we are not willing to accept the founding era’s expected applications of “cruel and unusual.” To his cr
edit, Justice Scalia has grappled with this case and admits that “any espousal of originalism as a practical theory of exegesis must somehow come to terms with that reality.” Originalism is only “The Lesser Evil”—his own title for an article—and might not be applicable in every instance. This weakened version, however, would qualify as a comprehensive methodology only if it offered guidelines for when to apply originalism and when not to.48
Consider also mixed race marriages. In Loving v. Virginia (1967), the United States Supreme Court overturned a Virginia antimiscegenation law, claiming that it violated the “equal protection” and “due process of law” clauses of the Fourteenth Amendment. Yet in 1868, had people thought antimiscegenation laws would be declared unconstitutional because of the Fourteenth Amendment, moderates in Congress would probably have voted against that amendment and state legislatures would probably not have ratified it. Although the original expected application of the Fourteenth Amendment did not include legalization of interracial marriages, no mainstream judge today would uphold an antimiscegenation law on that basis. Using the founders’ moral code to determine our moral code would transform the Constitution’s broad principles into mere rules—and worse yet, into rules that we no longer wish to follow.49
This problem stems from a misconception of what a constitution, at its best, is all about. The “whole purpose” of a constitution, Scalia writes, “is to prevent change—to embed certain rights in such a manner that future generations cannot readily take them away.”50
Not so, Professor Balkin responds. Constitutions “are designed to create political institutions and to set up the basic elements of future political decision making. Their basic job is not to prevent future decision making but to enable it.” Our Constitution, Balkin says, “channels” and “disciplines” us; it does not order us. Yes, we must stay within its bounds, but we are the ones to determine what those bounds will be, and that determination has changed, and must change, with time.51
Whether or not preventing change is the whole purpose of some constitutions, it certainly was not the whole purpose of ours. From a historical point of view, if there was a single purpose to the Federal Convention, it was to create a vigorous and energetic government that would enable American citizens to enjoy the benefits of republican self-rule. With the exception of George Mason and Elbridge Gerry, delegates to the Convention did not even think to “embed” the protections that we now enshrine as the Bill of Rights within the text of the proposed Constitution. It was not their overriding concern. The framers did not proclaim, “Our purpose is to prevent change at all costs. We must make future generations act as we do.” That would have been a very un-republican approach.
On the final day of the Convention, Benjamin Franklin delivered a different message. He is often quoted and praised for his humility (“the older I grow, the more apt I am to doubt my own judgment, and to pay more respect to the judgment of others”), his optimism (the sun painted on the president’s chair must be rising, not setting), and his belief in the proposed Constitution (“thus I consent, Sir, to this Constitution because I expect no better, and because I am not sure, that it is not the best”). Less celebrated is the reason he supported the Constitution, what he considered its primary purpose: “I agree to this Constitution with all its faults, if they are such; because I think a general Government necessary for us, and there is no form of Government but what may be a blessing to the people if well administered.” Although Franklin was as wary of concentrated power as was any other framer, his Constitution was about possibility, not limitation. Government was a necessary and vital step toward the solution; it was not the problem. That is why the framers established a stronger and more viable government.52
The Constitution that created and buttressed our government has lasted for more than two centuries, but nobody knew at the start whether it would work at all. Even Franklin’s optimism was as much hope as expectation. Just after the Convention’s close, a woman from Philadelphia was said to have asked him, “Well, Doctor, what have we got, a republic or a monarchy?”
“A republic, if you can keep it,” he is said to have responded.53
People read this story differently. Conservative commentator Patrick J. Buchanan, who concludes an article with this anecdote, adds a moral: “Let us restore that republic.” For Buchanan and many others, the story calls for a return to the golden age of the founders; we, the errant sinners who have gone astray, need only rediscover their truths, heed what they said, and agree to live by the rules they set down and the values they upheld.54
A different reading puts a wink in Franklin’s eye. Whereas Buchanan focused on the word “keep,” with its passive connotation, we can honor Franklin’s wisdom, wit, and ironic sensitivities by placing the emphasis on the conjectural “if,” which in his teasing way invites a more active commitment from future generations. We have set a direction, he said for the framers, but now it’s up to you. Do what you can to make the experiment work.55
DOCUMENT A:
ARTICLES OF CONFEDERATION
Submitted to the states on November 15, 1777, and ratified on March 1, 1781
Articles of Confederation and perpetual Union between the states of New Hampshire, Massachusetts-bay Rhode Island and Providence Plantations, Connecticut, New York, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, South Carolina and Georgia.
I. The Stile of this Confederacy shall be “The United States of America.”
II. Each state retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this Confederation expressly delegated to the United States, in Congress assembled.
III. The said States hereby severally enter into a firm league of friendship with each other, for their common defense, the security of their liberties, and their mutual and general welfare, binding themselves to assist each other, against all force offered to, or attacks made upon them, or any of them, on account of religion, sovereignty, trade, or any other pretense whatever.
Source: Yale Law School, Avalon Project.
IV. The better to secure and perpetuate mutual friendship and intercourse among the people of the different States in this Union, the free inhabitants of each of these States, paupers, vagabonds, and fugitives from justice excepted, shall be entitled to all privileges and immunities of free citizens in the several States; and the people of each State shall free ingress and regress to and from any other State, and shall enjoy therein all the privileges of trade and commerce, subject to the same duties, impositions, and restrictions as the inhabitants thereof respectively, provided that such restrictions shall not extend so far as to prevent the removal of property imported into any State, to any other State, of which the owner is an inhabitant; provided also that no imposition, duties or restriction shall be laid by any State, on the property of the United States, or either of them.
If any person guilty of, or charged with, treason, felony, or other high misdemeanor in any State, shall flee from justice, and be found in any of the United States, he shall, upon demand of the Governor or executive power of the State from which he fled, be delivered up and removed to the State having jurisdiction of his offense.
Full faith and credit shall be given in each of these States to the records, acts, and judicial proceedings of the courts and magistrates of every other State.
V. For the most convenient management of the general interests of the United States, delegates shall be annually appointed in such manner as the legislatures of each State shall direct, to meet in Congress on the first Monday in November, in every year, with a power reserved to each State to recall its delegates, or any of them, at any time within the year, and to send others in their stead for the remainder of the year.
No State shall be represented in Congress by less than two, nor more than seven members; and no person shall be capable of being a delegate for more than three years in any term of six years; nor shall any person, being a delegate, be capable of ho
lding any office under the United States, for which he, or another for his benefit, receives any salary, fees or emolument of any kind.
Each State shall maintain its own delegates in a meeting of the States, and while they act as members of the committee of the States.
In determining questions in the United States in Congress assembled, each State shall have one vote.
Freedom of speech and debate in Congress shall not be impeached or questioned in any court or place out of Congress, and the members of Congress shall be protected in their persons from arrests or imprisonments, during the time of their going to and from, and attendence on Congress, except for treason, felony, or breach of the peace.
VI. No State, without the consent of the United States in Congress assembled, shall send any embassy to, or receive any embassy from, or enter into any conference, agreement, alliance or treaty with any King, Prince or State; nor shall any person holding any office of profit or trust under the United States, or any of them, accept any present, emolument, office or title of any kind whatever from any King, Prince or foreign State; nor shall the United States in Congress assembled, or any of them, grant any title of nobility.
No two or more States shall enter into any treaty, confederation or alliance whatever between them, without the consent of the United States in Congress assembled, specifying accurately the purposes for which the same is to be entered into, and how long it shall continue.
No State shall lay any imposts or duties, which may interfere with any stipulations in treaties, entered into by the United States in Congress assembled, with any King, Prince or State, in pursuance of any treaties already proposed by Congress, to the courts of France and Spain.
No vessel of war shall be kept up in time of peace by any State, except such number only, as shall be deemed necessary by the United States in Congress assembled, for the defense of such State, or its trade; nor shall any body of forces be kept up by any State in time of peace, except such number only, as in the judgement of the United States in Congress assembled, shall be deemed requisite to garrison the forts necessary for the defense of such State; but every State shall always keep up a well-regulated and disciplined militia, sufficiently armed and accoutered, and shall provide and constantly have ready for use, in public stores, a due number of filed pieces and tents, and a proper quantity of arms, ammunition and camp equipage.
