Positive Liberty

Several people sent me the Jack Balkin article about living constitutionalism, and asked my thoughts. The problem with this debate, I think, is the large population of straw men and red herrings that can confuse any person trying to see this thing straight.

The real problem that I and many other people have with the notion of the “living constitution” is not that we want to return the world to the way it was in the 18th or 19th centuries. This is a common, and very silly, slander. Those of us who believe in the free market are often accused of wanting to “turn back the clock to the days of the Robber Barons,” but that’s crazy. America in the 19th century was nothing like a free market economy; it was criss-crossed with subsidies and tariffs and regulations and Jim Crow laws and bribery and all sorts of nonsense that no libertarian believes in. Likewise, the contention that defenders of originalism think that constitutional interpretation should consist of a “set of shackles designed by long-dead slave-owners” is petty, and childish, and designed to obscure the real issues.

Those issues are: are we going to be faithful to the actual text of the Constitution, or are we going to alter the public understanding, or even manipulate that understanding, so as to accomplish ends that some people consider politically desirable? Do we still believe in the principles of liberty and justice that were enunciated by our founders? The focus is not on the founders, but on the principles.

And Balkin well justifies the concerns of those of us who consider ourselves originalists. He says, for example,

A host of federal laws securing the environment, protecting workers and consumers—even central aspects of Social Security—go beyond the original understanding of federal power, not to mention most federal civil rights laws that protect women, racial and religious minorities, and the disabled from private discrimination. Independent federal agencies like the Federal Reserve Board, the Federal Trade Commission, and the Federal Communications Commission would all be unconstitutional under the original understanding of the Constitution. Presidential authority would be vastly curtailed—including all the powers that the Bush administration regularly touts. Indeed, most of the Bush administration’s policy goals—from No Child Left Behind to national tort reform—would be beyond federal power.

Consider what he’s saying here. He’s first of all admitting that these things do not coincide with the Constitution as it was understood by those who drafted it—and is arguing that, because many people today like these institutions, it’s okay to disregard, or pervert, the Constitution’s limits so as to make room for these things. Now, that’s a dangerous notion, indeed. I mean, why bother having a Constitution at all, if its written limitations can be ignored or perverted so as to accomplish “policy goals” that some people really like?

And, in fact, there are many people who really don’t like these programs—who consider them positively unjust. Social Security steals money from people who earn it and gives it to people who do not. That is an actual injustice. And it is particularly offensive to those of us who cling to the principles of justice enunciated by the founders. Again, the focus is not on the founders (slave-owning or otherwise), but on the principles they enunciated.

Now, Balkin may think that we’re wrong, because, after all, a majority of people approve of these programs. If that is the case, though, why is there no Constitutional amendment allowing these programs? Is it perhaps because there isn’t the sort of popular support necessary to amend the Constitution fair and square? I draw this suspicion from a contemporary biography of Justice Oliver Wendell Holmes, whom Balkin quotes with approval. In Constitutional Doctrines of Justice Oliver Wendell Holmes (1924), Dorsey Richardson wrote,

Justice Holmes came to the bench in 1882, when the transition from individualism to collectivism in England was in progress…. [He] was too learned in the history of the law to be blind to the fact that the socialistic trend in American political thought would finally demand extensive paternal legislation in no uncertain terms; and that when this demand became strong enough serious consequences might follow the failure of the courts to acquiesce….

[T]he necessity for the establishment of a benevolent attitude towards social reform was apparent…[yet] the Constitution was regarded as almost immutable…. [N]o further [Amendment] might be looked for short of a popular upheaval.

Next to amendment of the Constitution, the most feasible means of giving validity to new principles was to change the interpretation of the provisions under which the inevitable social legislation would be held invalid. “Liberty of contract” and the broad powers of review assumed by the courts under the 5th and 14th Amendments were the elements which barred the way to reform,—and it is against these interpretations that Justice Holmes’ most significant attacks have been directed.

Id. at 41. Okay, now, if Balkin thinks it’s all right for people to “change the interpretation” of the Constitution so as to accomplish an amendment without going through that annoying formality of actually getting public approval , then he must at least recognize why others of us would consider it unfair. We grew up with a notion of justice that said that it’s wrong to arbitrarily change the rules of the game to accomplish your desired outcome.

Again, let me reiterate—the focus is not on the founders, but on the principles they espoused. (As Rizzo says, “light the lamp, not the rat!”) It is simply not true that an originalist must think that cases like Loving v. Virginia or Brown v. Board of Education were wrongly decided. As Justice Souter recognized in his excellent opinion in McCreary County v. ACLU, 125 S.Ct. 2722, 2744 n. 25 (2005), the principles have an existence aside from the particular practices of particular times, even of the founders themselves. The principle of equality is offended by slavery and racism regardless of whether the people who wrote those principles into the Constitution realized it. (Which, incidentally, they did.) The role of the judge is to comprehend this objective meaning of the concepts in the written document and to apply them to present circumstances, even in cases where doing so upsets longstanding, popular historical practice. That’s why Loving was rightly decided, and would have been rightly decided if it had been written in 1864 or 2064.

And, incidentally, it’s another reason why Balkin is wrong. He commits the same sin he accuses others of comitting. He does not concern himself with whether Social Security and the rest of the regulatory welfare state are Constitutional, he simply says that they are longstanding, and popularly approved. Interpretations of the Constitution that would find these practices illegal are therefore to be spurned. His concern is not with understanding the meaning of the concept of, say, equality, and discerning whether it forbids, say, the practice of segregation of schools. Rather, he wants a particular outcome, and doesn’t seem to care very much how we get there. But how is that different from the argument of people who would have said that anti-miscegenation laws were longstanding and popularly approved and therefore must not be unconstitutional under the Fourteenth Amendment?

Bizarrely, he has an answer for that: he defends cases like Loving that he alleges are non-originalist, on the grounds that they “make us a country conceived in liberty and dedicated to the proposition that all people are created equal.” That, of course, is a quotation of a passage from Abraham Lincoln appealing to an objective concept placed in the Declaration of Independence by the framers. Balkin can judge the rightness of these cases only by appealing to a pre-political, non-majoritarian standard of right and wrong, a standard enunciated by the framers, placed in the Constitution and the Declaration, and which is right, regardless of the fact that some of those who enunciated it owned slaves, or voted for anti-miscegenation laws, and even though these principles have often been despised and rejected by large majorities who profited by ignoring them.

I am reminded of an excellent passage from a law review article:

[E]ven writers who are obviously not attempting to base their constitutional theories on the original meaning of the Clause often feel compelled to use historical or quasi-historical rhetoric by, e.g., referring to the purposes of the Clause, the objectives of the drafters, what Madison said, the intent of the framers, and so forth. It is interesting to speculate why they do this. My personal belief is that resort to the historical understanding of laws is a strong component of the rule of law in our legal system. At its simplest, lawmaking involves a direction or rule laid down by the present for the future. When the future arrives, whether it be a week or two centuries later, any coherent concept of the rule of law requires that the future try to obey the direction or rule laid down in the past, rather than inventing the rule it finds most convenient in the present. Thus, any attempt in the future to look at what the lawmaker was trying to accomplish when she created the law involves historical inquiry. Refusal to make this historical inquiry in good faith basically undermines the idea of law as we usually understand it. This is why, I believe, commentators who obviously do not wish to base their theories on history (otherwise they would do better history) feel compelled nevertheless to use historical rhetoric. The pull of history is an important legitimating force, separating the idea of law from that of mere politics, ideology, or raw force. If I am correct about this, the commentators’ failure to do their historical homework more completely is really a tacit admission of the ultimate weakness of their theories, at least in any legal system based on the rule of law.

Ralph U. Whitten, The Original Understanding of The Full Faith And Credit Clause And The Defense of Marriage Act, 32 Creighton L. Rev. 255, 393-94 (1998).

Seeming to recognize this, Balkin suddenly says that “[o]riginalists are right that the Constitution is binding law, but they confuse the constitutional text—which is binding—with original understanding and original intentions, which are not.” But this is silly. I hear this distinction made all the time, but is it really necessary? Is there really anyone who thinks that we ought to follow subjective original intentions? Randy Barnett has gone to the most extreme lengths to make this obvious distinction as clear as possible, as if there are really people out there who think that, say, slavery really was consistent with the principles of the Declaration (an argument nobody in 1776, 1830, 1860, or today has ever made). Even Robert Bork—the bane of serious originalism—makes the same point: “The search is not for a subjective intention. If someone found a letter from George Washington to Martha telling her what he meant by the power to lay taxes was not what other people meant, that would not change our reading of the Constitution in the slightest…. Thus, the common objection to the philosophy of original understanding…is off the mark.” The Tempting of America 144 (1990). There’s nobody who really confuses original meaning with original subjective intention.

Instead, what we have is an attempt to distract us from looking at the writings of the framers when interpreting the instrument, and to get us to instead look at how lovely the policy at issue really is; that is, to persuade the judges to manipulate the Constitution so as to allow regulatory welfare programs to go forward and continue taking things away from people who earn them and giving them to people who do not.

In doing so, we end up not having a living Constitution at all, but a Constitution with all sorts of dead spots in it. The violence we have done to the Constitution has a price. By allowing the Commerce Clause, for example, to become a federal police power over anything Congress sees fit to regulate, as in Raich—a case Balkin seems to think was wrongly decided—we have made the government one of unenumerated, inherent sovereignty. And that means ignoring other passages in the text. For example, Article I section 1 says “all legislative powers herein granted,” not “all power.” Note the plural of “powers,” and note the phrase “herein granted.” These things must be ignored to make way for the regulatory welfare state. Or take the decision in Kelo. To hold that “public use” really means “public use,” says Justice Stevens, we would have to strike down all sorts of government programs that are “traditional and long accepted.” 125 S.Ct. 2655, 2665. So we simply make the phrase “public use” absolutely meaningless. Here we have at least three dead parts of the Constitution, and I’ve only cited two cases.

The fact is, liberal talk of the “living” Constitution is not talk of a living Constitution at all, but talk of a dead Constitution—a Constitution whose clauses are to be manipulated, bent, stretched, or ignored outright so as to allow the regulatory welfare state to accomplish its aims. And if there are phrases like “herein granted” or “public use” (let alone “due process”) that must be ignored in the process, why then, that’s just fine. Is that living Constitutionalism? Or is it dead, null, and void Constitutionalism?

Yes, the Constitution was meant to endure. It was written with deathless principles of justice in mind, and it cannot be killed, as no idea can be killed. It can be ignored, though, as we have been doing since the days of Oliver Wendell Holmes. It can be dodged. It can be perverted. But to call this living Constitutionalism is a perversity, because it is neither living, nor Constitutionalism.

Update: Thanks to Randy Barnett for the link. Commenter Medis writes, “why single out ‘liberals’ when ‘conservatives’ are also subject to the same criticism, even if they don’t favor using the same metaphors?” That is a very good point, and I stand corrected.

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