We are All Constitutional Pluralists Now: Just ask Justice Brett Kavanaugh
Twenty-eight years ago, I wrote an article summarizing a pair of essays written in 1900 by Arthur Machen, Jr., in the Harvard Law Review. Machen was the first person to use the phrase the "living Constitution" in a legal essay. He framed the issue as follows (please forgive the long quote):
As the period of the formation of the American Union becomes more and more remote, it becomes constantly more important to inquire to what extent the decision of a question of federal constitutional law may properly be affected by the many changes in language, customs, morals, and in individual and national environment which have taken place since the adoption of our fundamental law. . . . Political opinions have changed: the doctrine of national unity has almost completely demolished its once mighty antagonist--the theory of state sovereignty. Commerce, instead of being conducted by stagecoaches and sail-boats, is carried on by railways, telegraphs, and ocean liners. Ideas of morality have changed: lotteries and duelling, once regarded as praiseworthy, are now thought pernicious and immoral. The effect of all these changes upon our system of constitutional law is surely an interesting and important matter for legal inquiry. . . . The present paper deals with the problems which arise when a constitution, the letter of which remains unchanged, is to be applied by the courts to an altered state of facts.
Machen argued that, while the Constitution's original meaning does not change, judges can decide the same case differently over different eras if facts and circumstances materially change. I summarized his work as follows in my conclusion:
An ever-changing society governed by a vague foundational document will require judicial decisions that apply new circumstances to old rules. History and custom will be important to that application, but not decisive. Judges do not have to choose between a Living Constitution and the dead hand, but they must inevitably make difficult judgments about competing institutional roles and fundamental rights and liberties. Those are the truly hard questions of constitutional law, and it is time that we face them without the baggage of an old and unhelpful debate about the relationship between original meaning and constitutional interpretation.
In the birthright citizenship case decided this term, Justice Brett Kavanaugh, a self-avowed originalist, detailed his method of constitutional interpretation. It might sound familiar:
The Constitution is an enduring document, and its principles were designed to, and do, apply to modern conditions and developments. The original constitutional principles do not change absent a constitutional amendment, but the relevant principles— both the rules and exceptions alike—must be faithfully applied not only to circumstances as they existed in 1787, 1791, and 1868, for example, but also to modern situations that were unknown or unanticipated by the Constitution’s Framers. Stated otherwise, the meaning of rules is constant...[but] their application to new situations presents a novelty.
Kavanaugh cited two of the most famous originalist judges in American history, Robert Bork and Antonin Scalia, to support this method of constitutional interpretation. Bork said, "it is the task of the judge in this generation to discern how the framers’ values, defined in the context of the world they knew, apply to the world we know. We must never hesitate to apply old values to new circumstances." And here is Justice Scalia: "the application of existing principles to new phenomena—either new because they have not existed before or new because they have never been presented to a court before—is what I would call not ‘evolution’ but merely routine elaboration of the law.”
Kavanaugh used this framework to argue that even if the Supreme Court was correct in the late 19th century in United States v. Wong Kim Ark to find only a few limited exceptions to the Fourteenth Amendment's rule that people born on United States soil are American citizens, further exceptions may be recognized by judges if "the new exceptions (i) are based on subsequent developments or circumstances that are new, i.e., largely unknown or unanticipated by the Framers of the Fourteenth Amendment, and (ii) are relevantly similar to the...Wong Kim Ark exceptions."
Kavanaugh then argued that changes in immigration laws and practices allow Congress to amend current law to carve out from the Fourteenth Amendment's citizenship promise new exceptions for children of undocumented immigrants and temporary foreign visitors. Congress, however, has not passed such a law, and Kavanaugh believed Trump's challenged executive order was inconsistent with a current federal statute on the subject, so he concurred in the judgment overturning the executive order. But under his analysis, Congress could itself create the exceptions that Trump desires.
I have no issue with how Justice Kavanaugh explained constitutional interpretation, and neither would liberal non-originalist judges. The Constitution lays down both specific directives (such as the president must be thirty-five and there must be two senators from every state), and imprecise general principles (such as equal protection, due process, and the bans on unreasonable searches and cruel and unusual punishments). We do not need originalism for the self-defining parts of the Constitution. We just need to be able to read. But those parts of the Constitution do not get litigated. Phrases like "subject to the jurisdiction thereof," which was the key language at issue in the birthright citizenship case, are not self-defining and need to be fleshed out over time as society changes. (Notably, both the majority and the principal dissent in the birthright citizenship case claim that the other side improperly reads a new meaning into the term "jurisdiction." The majority says the dissent relies on a revisionist view from the late 19th century that arose to justify nativist laws restricting Chinese immigration; the dissent says the majority's view reflects a 20th century repurposing of the citizenship clause. Neither of those could have happened if the term were self-defining.).
Our collective response to Justice Kavanaugh's argument that judicial application of the phrase "subject to the jurisdiction thereof" can change over time should be "of course." Machen made similar arguments 126 years ago. But once we accept Kavanaugh's framework and apply it consistently across cases that implicate imprecise constitutional text (virtually all litigated cases), then we can see that the idea that the Constitution has a fixed meaning at ratification that judges must apply, a sentiment repeated all the time by originalists, does no actual work in real constitutional cases. We all agree that freedom of speech is a constitutional right and a good thing to boot, but we disagree over its application to specific problems.
No constitutional right is absolute, which is why the phrase "Congress shall make no law abridging the freedom of speech," does not prevent Congress from making perjury, bribery, and true threats federal crimes even when those activities are pure speech.
Let's assume that the original meaning of either the Second Amendment or other parts of the Constitution such as the Ninth Amendment support a constitutional rule that we have the right to own guns. Next term the Supreme Court will decide whether states can ban assault weapons. That ruling will also apply to Congress should it enact a similar ban. Let's assume that as an original matter the Constitution protects the right to own guns subject to the exceptions to that rule that existed in 1791, which were many.
Judges today have to determine whether there are other exceptions given changed circumstances, such as the more deadly nature of weapons today than those in existence in 1791 and the much greater density of urban areas such as Times Square than similar locations in 1791. This framework requires judges to make decisions based on modern facts and values. The only way to determine if the underlying principles supporting original meaning apply to today's problems is to engage in a normative, not historical enterprise. We can call that originalism but virtually all constitutional actors agree with that approach, which is exactly what Justice Kagan meant when she said at her confirmation hearing that "we are all originalists." We apply precise text as written but general principles must be extrapolated over time with an eye on contemporary needs and problems.
Unfortunately, the Republican Party, the Federalist Society, and most "originalist" judges, legal scholars, and pundits use the label "originalist" to argue that they just "find" the law whereas living constitutionalist judges "make" the law. Originalists also routinely argue that only reliance on text and history can constrain judges. But those kinds of appeals are nonsense. As Kavanaugh, Bork, and Scalia recognized, constitutional litigation is the application of general principles to new circumstances. We must apply the First Amendment to the internet, the Second Amendment to assault weapons, and the Fourth Amendment to high tech police searches totally unknown to the founding generation. That analysis inevitably requires the judicial balancing of conflicting constitutional values, not the study of text and history, even if that balancing goes unstated.
There were important 6-3 cases this term divided along ideological and partisan lines but not because the justices employed different methods of constitutional interpretation. They are all constitutional pluralists who engage with text, history, precedent, and consequences. The liberal and conservative justices disagree over most important litigated constitutional cases because they have different values, not because some are originalist and some are not.
The legal community needs to move on from the tired, misleading, and functionally irrelevant debates over living constitutionalism and originalism. Justice Kavanaugh's descriptive account of how judges decide constitutional cases is spot on. They apply old principles to new facts based on modern imperatives. Judges disagree about the imperatives, which is where the debate needs to take place. As I wrote over a quarter of a century ago:
The academic debate over the legitimacy of originalist and non-originalist constitutional interpretation has not progressed materially since Professor Machen's article. Furthermore, a review of his work teaches us that originalism does not lead inevitably to active or passive judicial review; that questions about originalism as an interpretive tool are largely irrelevant to how judges decide real cases; and that there is little reason for scholars to continue to argue about the proper role of original meaning in constitutional interpretation. That role should be as clear to us as it was to Professor Machen--judges refer to the original meaning of the Constitution to provide an important link to our past culture and traditions, but the original meaning rarely dictates results in real cases because the context within which that meaning is applied is constantly changing.
If you do not believe me, listen to Justice Kavanaugh.