Friday, October 24, 2008


As Neil noted yesterday, today continues the Symposium on what we owe future generations at GW Law School. I'm presenting my paper today. It's still too rough for me to post online, so I'll give a very brief overview here.

Prima facie, a constitution is a curse rather than a blessing bestowed on future generations because a constitution limits the political freedom of the future generations. However, this view is superficial. Structural constitutional provisions provide a framework for democracy, thus empowering future generations to enact the policies they deem necessary, rather than leaving them constantly to re-fight the ground rules. Constitutional rights, by contrast, do seem more problematic. One standard defense of constitutional rights posits that democracies go through periods of insecurity in which mob rule leads them to lose sight of their most fundamental values. Constitutions enshrine these values, thus protecting against backsliding (or what Justice Scalia calls "rot.")

The anti-backsliding view is widespread and it has some force. E.g., Geoff Stone's excellent book Perilous Times shows how we typically suppress free speech and the press in wartime. However, the anti-backsliding view does not really explain how constitutional rights are typically enacted. Constitution writers and amenders don't typically seek to entrench accepted rights. They typically aim to change the legal status quo. Sometimes they succeed and sometimes they fail, or fail for a while, only to have a later generation transform and redeem their handiwork. The clearest example of this phenomenon is the 14th Amendment, which was largely ignored with respect to its central purpose until the civil rights movement of the mid-20th century. More generally, constitutional rights often adopt aspirations.

The anti-backsliding view leads rather naturally to originalism in constitutional interpretation. But where constitutional rights serve an aspirational rather than an anti-backsliding function, some other method of constitutional interpretation fits better. My article explains how various conceptions of the "living Constitution" do the job. I'll post a more complete draft after my research assistants and I have had a chance to clean up the footnotes, probably in about a month.

Posted by Mike Dorf


Paul Scott said...

It is a curious description - "central purpose."

Frankly, it seemed to me the "central purpose" of the 14th Amendment was to weaken the concept of State sovereignty expressed in the 10th Amendment. That "equal protection" as empowered by the civil rights movement has come to completely encompass the modern meaning of the 14th Amendment is undeniable, but I find it more difficult to accept your characterization that this was always its "central purpose" and that purpose was simply ignored for 100 years.

Michael C. Dorf said...

The degree to which the 14th Am weakened state sovereignty was hotly contested in the 19th century. The majority in the Slaughterhouse Cases specifically rejected the claim that it fundamentally reordered the relation between state and federal govts.

Paul Scott said...

Certainly, but at least it was, in fact, contested. The idea that the "central purpose" of 14th A was intended as a broad protection for equal rights, however, seems untenable. Not even a mater of debate in the 19th century.

Also, the fact that SCOTUS claimed (in a limited fashion) that the the 14th A did not "fundamentally reordered the relation between state and federal govts." cannot change the fact that it was the codification of the results secured by the Civil War. Sovereignty of the States in any real sense was effectively eliminated and each State thereafter because a clear servant to the Federal government. The 14th A was the legal vehicle that established that relationship.

That the courts ultimately found the privileges and immunities clause to be meaningless (an unfortunate decision, imo, and I think you agree) doesn't change that the language of the 14th A was broadly drafted and did substantially weaken (even if it did not "fundamentally reorder") the rights of the States.

That equal protection could be seen as the "central purpose" of the 14th A when the concept of equality among the races was not on the political landscape of even the most liberal States at the time of its ratification. Further, inequality among the sexes (something now protected by what you are calling the "central purpose") remained codified everywhere, including the text of the 14th A itself.

I fully accept that "equal protection" (along with the too narrowly read "due process" clause) is the only thing the courts have left effective in the 14th A today, but I still cannot see how equal protection, rather than weakening State sovereignty, could be considered its "central purpose" when ratified.

Michael C. Dorf said...

I am not saying the central purpose of the 14th Am was "equality of the races." Its central purpose was to continue the unfinished work of the 13th Amendment, namely, to root out slavery and its legacy. That work remained unfinished well into the 20th century.

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