Is Living Constitutionalism our Law? A Response to Charles Barzun and Jack Balkin

By Eric Segall

Last Wednesday I had the great privilege of recording my first Supreme Myths Podcast/Video with Yale Law Professor Jack Balkin. Also last week, Professor Charles Barzun completed a three-part series on Balkinization on living constitutionalism and originalism. Both Balkin and Barzun share some common views about constitutional interpretation, judicial review, and the relationship between originalism and living constitutionalism that I will address in this post.

Both Balkin and Barzun believe that constitutional law is deeply affected by much more than just the Constitution's original meaning. Social, political, and cultural movements affect how judges incorporate and address constitutional change. In Barzun's words, "Balkin treats the Constitution’s adaptability as important for reasons of democratic legitimacy—enabling it to respond to social movements and political mobilizations." Balkin's book Living Originalism provides many examples of this phenomenon, from the Court's decisions on the commerce clause to the Second Amendment to the gay rights cases. Balkin's descriptive account of how constitutional law changes seems mostly accurate.

But Balkin also believes the Constitution's adaptability in the hands of judges is consistent with originalism (hence the title Living Originalism). In his view, the original Constitution sets forth rules, standards, and principles, and when the non-rule parts of the Constitution are litigated, judges should, indeed, must, treat them them as licenses to effectuate constitutional change. Thus, when judges act like living constitutionalists, they are also doing what the original Constitution instructed, and presto, originalism (this is an oversimplified account but enough for the purposes of this post).

Barzun tells a similar story. He argues that the Supreme Court does not generally explain its decisions through pure moral reasoning or through reference to its own or our system's democratic legitimacy. He says: 
the Court does not generally talk of 'constitutional moments' or 'ratifying elections.' It usually does not purport to be relying on its own 'moral reading' of the constitution.  It does not say, the precedents aren’t clear, so look to fairness and policy. What it does do—at least in some areas—is talk about the need for constitutional doctrine to respond to changed circumstances—even when the change involved is one of the 'understanding' or 'perception' of the relevant facts.
According to Barzun, judges usher in constitutional change because facts change and both society and judges must progress to effectively harness that change. He says that the "need to revise constitutional interpretations...or not to do so" is justified "by reference to social progress." Plessy was wrong the day it was decided because the Justices had the facts wrong (separate was not and could not be equal). Brown's correction was justified by the Justices getting the facts right.

At the end of his blog post comes the kicker. Barzun, like Balkin, suggests that all of this change (living constitutionalism) is justified by the meaning of our original Constitution. He says the
approach I’ve just described has such a pedigree, as do the constitutional doctrines it has yielded. Those doctrines fit naturally with originalism because they are conceptualized as changing applications of constitutional principles in light of new facts—or new understandings of facts.... It is our law, and judges take an oath to support it.
That last phrase may have been Barzun talking somewhat tongue-in-cheek.

There are at least two major objections to the general idea that living constitutionalism is authorized by the Constitution's original meaning. The first one is purely historical. As I detailed in my book Originalism as Faith, historians have shown that the framers both expected and wanted highly deferential judicial review. Sylvia Snowiss reviewed the historical materials and concluded that judicial overturning of legislation would be limited to "the concededly unconstitutional act." Gordon Wood found that judicial review at the time was "invoked only on the rare occasion of flagrant and unequivocal violations of the Constitution." And, of course, Alexander Hamilton in Federalist 78, the most important pre-constitutional document discussing judicial review, said that judges should only overturn laws when they are at an "irreconcilable variance" with the Constitution. Numerous other scholars and historians have come to the same conclusion. Judicial review, as originally understood, was a highly deferential enterprise.

Neither Balkin nor Barzun, nor most other originalists today, have wrestled with this problem (the original originalists didn't have this problem). The idea that judges should either pave the way for, or be the agents of, constitutional change would have shocked most of the founding generation. Professor Jud Campbell captured this idea beautifully in a magnificent article on how today's law of free speech has nothing to do with the first amendment's original meaning because the founding generation did not equate having rights, even natural law rights, with judicial enforcement of those rights. Strong, non-deferential judicial review may be good or bad, right or wrong, but it is not consistent with the original Constitution.

The second objection focuses more on today than yesterday. Both Balkin and Barzun describe the process of constitutional change richly and accurately. But neither fully address what Professor Christopher Sprigman has called the "making it all up" problem. Or, as Dean Erwin Chemerinsky observed in the Harvard Law Review Foreword in 1988, the Court's constitutional law decisions are nothing more or less than the aggregate of the value preferences of the Justices. They must balance a right against a state interest in every case, and there's no avoiding that clash. The resolution of those clashes will be based on the Justices present-day experiences, politics, and values, not anything tied to 1787 or 1868. 

If my descriptive account is accurate, a real question is why society today would defer to unelected, life-tenured, elite lawyers to impose their values on the rest of us. There are of course good reasons why we might choose that course, though neither Sprigman nor I think so, but the point is that any such justification would break with how the founding generation (and even the 1868 generation) thought about the judicial role. Balkin especially takes for granted that imprecise principles and standards must by necessity be fleshed out by judges. But that is just not what the founders thought. They thought constitutional change would come about in other ways, absent a clear conflict between a law and the Constitution.

Contrary to what Balkin and Barzun suggest, one must either believe in living constitutionalism (read strong judicial review) or originalism, but not both. In other words, like Supreme Court Justices deciding constitutional law cases, one has to choose, and the choice is all about this world, not ancient ones.