Con Law in 12,008

Here’s another post inspired by my week in Cleveland. Our panel on constitutional theory consisted of myself, Kim Roosevelt, Steve Griffin, and Mark Tushnet. A not insubstantial portion of the discussion centered around the “new originalism” (to which I also referred in my lunchtime speech). Like the old originalism, the new originalism has, as one of its justifications, a theory of legitimacy. As Griffin said, summarizing Larry Solum (about whose work Griffin has blogged at Balkinization) but not purporting to be stating his own views, given that the Constitution contains an amendment mechanism in Article V, there ought to be at least a pretty strong presumption against changing its meaning by other mechanisms. Here I’ll rehearse a couple of answers to this claim, mostly as an excuse to set out a thought experiment (point 2 below).

(1) If we were just starting our collective project of constitutional interpretation today, this argument would have some force. However, we inherit the Constitution along with a long history of its use—including a tradition of changes in constitutional meaning without changes in the constitutional text. Against this historical background, as a descriptive matter, the best account of Article V is that it provides the exclusive mechanism for changing the text, but that it does not preclude flexible interpretation by political actors and the courts. Indeed, one might even draw this inference in part from Article V itself. In a fascinating paper, Tom Ginsburg presented empirical evidence about the lifetime of constitutions. The average lifespan of a constitution is only 17 years. The U.S. is very much an outlier in its Constitution's longevity and there is good evidence that flexibility strongly correlates with longevity. Where a constitution is very difficult to formally amend, as the U.S. Constitution is, then flexible (i.e., changing) interpretation may be essential to its long-term survival. Thus, one might say that reading Article V and knowing how difficult it makes amendment, if one wants the Constitution to survive over the long term, one MUST engage in non-originalist interpretation.

(2) Originalism is sometimes offered on the ground that it provides substantially greater restraint on judges than non-originalist modes of interpretation. Whatever the truth of this claim with respect to the old originalism, it is not a claim defended by the new originalists, who tend to acknowledge that the new originalism does not resolve many of the most contentious constitutional questions. Nonetheless, they urge originalism on linguistic and political theory grounds---and in fairness, the old originalists made similar points. The basic argument is this: The Constitution is law because it was adopted by democratically legitimate processes, and so the meaning of the Constitution should be the meaning produced by those processes, rather than a meaning substituted for them by unelected judges.

The difficulty with this argument is its premise that the original act of ratification is what makes the Constitution law today. It doesn't. What makes the Constitution law today is the fact that it is accepted as law today. Imagine that, notwithstanding Ginsburg's data, the U.S. Constitution persists for at least another 10,000 years (by which time, according to Sen. McCain, the U.S. could still have troops in Iraq, but I digress). What would make the Constitution the legitimate law of the U.S. in 12,008, binding on our descendants and the intelligent metal bugs who have also been made "persons" by the 28th Amendment? The act of ratification in 1789? The very idea is ridiculous. To be sure, a consensus might exist that our descendants and the metal bug people look to the 1789 original understanding as a way of resolving constitutional disputes, but if so, that 12,008 consensus, not the 1789 ratification itself, will be the legitimating act.

And so, it seems to me, in 2008: One can argue for reading the Constitution to mean what it meant in 1789 on the grounds that this will be better for us than reading it any other way. But one cannot simply say that this reading is commanded by the fact that it was adopted then.

Posted by Mike Dorf