by Matt Barr

The living Constitution

Dahlia Lithwick wants to know why no one plausibly defends the notion of a "living Constitution" anymore, instead leaving it to the right to "bash[] the premise into a hopeless pulp." I wish I had a more clever answer than "it's indefensible," but I don't think I do.

We do have a "living Constitution," to the extent that means it can "adapt to the times," or whatever: It provides a process whereby it can be amended. When "living Constitution" advocates -- if indeed there are any -- insist that the document reflect our times and "evolving standards of decency" and whathaveyou, they're most certainly not talking about amending it, they're talking about a friendly Jusitce proclaiming that it already says what they want it to say.

In other words, no one steps to the plate for the "living Constitution" concept because the clearest, simplest, most obvious from the text defense of the concept isn't what they mean. And what they do mean requires them to explain how it is that the Constitution says something that the Constitution doesn't say. And that makes for some dicey moments, I would think. No one likes to be looked at that way, you know, eyebrows raised, brow furrowed, mouth slightly open.

Julian Sanchez takes a crack at answering Lithwick's question and, as is wont to happen, "originalism" creeps into the discussion, the better to show the "living Constitution" that it's not the worst idea in the world.

Consider the question of whether the Fourteenth Amendment's guarantee of "equal protection" should be read to mean that gay couples must be afforded the right to marry or, at the very least, some kind of civil union arrangement that would cover the same legal rights bundled with marriage. I've no doubt that a late 19th century sample of legislators or ordinary citizens would deny that it did. In the cultural context of the time, the question wouldn't even have come up.

Stop the tape! Of course, "originalism" is here entirely misunderstood (as it is by many of its proponents). When, for example, Mr. Justice Scalia insists Roe v. Wade was wrongly decided because abortion was a crime when the nation was founded, and for a long time before, and frankly for a long time after, that's not the same as wondering whether there's some sort of right to get an abortion notwithstanding that "it would never have come up" in the 1780s. Sanchez's other examples -- whether "search" includes telephone wiretaps, or "speech" blogs -- would indeed never have come up, because those things hand't been invented yet. Abortion certainly had been, and was against the law, and nobody set about repealing those laws in either the late 18th or late 19th centuries once the Bill of Rights and Fourteenth Amendment were ratified, did they?

As regards originalism, this is "bashing the premise into a hopeless pulp." Originalism doesn't fail because there were no abortions or same sex relationships at the founding, for the very good reason that there were.

Responsible constitutional observers aren't "originalists" anyway; what the framers thought they were promoting and outlawing is often very powerful evidence of what a clause means (unless you're talking about wiretaps or blogs), but you ought to try and get at what the clauses mean, not what long-dead draftsmen thought they meant. You can't subject someone to what a 19th century statesman thought was right or wrong any more than you should what five life-tenured judges do.

You are governed by what the law actually says. If you have to consult emanating penumbrae to find what you're looking for, chances are it doesn't actually say it, so you either need to learn to deal with it or amend the constitution. (And, to continue with the abortion example, your "dealing with it" can obviously include campaigning for laws making abortion available -- since the Constitution neither requires nor prohibits abortion. That's an element of the textual analysis not shared by the Courts which proclaim that henceforth throughout the land no law may be passed either way on this subject, which is closed.)

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