Stayin' Alive

Slate legal writer Dalia Lithwick is soliciting thoughts on the idea of a "living Constitution," which even many liberals now seem reluctant to defend. Now, part of the problem is that a lot of people really do seem to think, as Lithwick puts it, that the alternative to some species of originalism is "judges swinging like monkeys from the constitutional chandeliers, making up whatever they want, whenever they want." Consider some of the approving reactions to decisions in Raich or Kelo: There's usually a sense that they implicitly acknowledge that neither is really defensible as a reading of the Constitution's text, but if they'd gone the other way, then goddamnit, someone might think Congress isn't empowered to protect the snail darter, and the seas would boil. Bad jurisprudence, on this view, seems to be whatever obstructs good policy. (Let me, incidentally, include myself in the class of folks Lithwick mentions who's strongly in favor of the effect of Roe v. Wade without quite being able to convince themselves it's really good law.)

That said, I've never found the popular varieties of originalism particularly tenable either. Sophisticated originalists usually recognize that an "original intent" standard isn't going to be workable in many cases: First, because we don't have many mind-reading time travelers on the bench. Second, because there's no guarantee that a diverse gang of Framers would've agreed on how to apply the text. Third, because questions like (say) whether Gouverneur Morris meant "search" to apply to telephone wiretaps or infrared scanning, or whether blog posts are protected as "speech" or "press" (if we're hyper-literal, they're neither), flirt with meaninglessness. These problems often prompt a shift to an "original public meaning" standard, but the very same problems, mutatis mutandis, reappear there.

There's also the niggling problem of the Ninth and Tenth Amendments. Unless you think the Framers were just, you know, doodling there, those should probably be interpreted to mean something—the trend of modern jurisprudence notwithstanding. The historical record makes it abundantly clear that the Framers did expect the judiciary to use the Constitution to check legislative overreach. But that's got to be a serious problem for the strict constructionist: The Constitution is effectively saying there are things Congress mustn't do (and, by implication, that the courts mustn't let it get away with) but they're not in here, guys. More could be said in this vein, but you get the drift.

At the risk of being tarred and feathered, I'm most inclined toward Ronald Dworkin's approach, based on what I know of it. (Confession: Dworkin's Law's Empire is one of those "classics" I'd love to have read, but haven't thus far actually wanted to actually get through reading.) Dworkin, perhaps like all of us, tends to find a few too many of his own policy preferences—just coincidentally, mind you—endorsed by his preferred jurisprudential approach. But the attempt to navigate a course between an incoherent strict constructionism and monkeys on chandeliers strikes me as sound. Original intent and meaning set some interpretive parameters—smoking a joint in my closet can't be "commerce"—but it's not the end of inquiry either.

Here's one potential application of the approach I have in mind: 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. But, as with "search" or "speech," the proper approach here isn't to try to method-act James Madison—the "intent" or "meaning" we're looking for from the framers is at a higher level of abstraction than the specific application. That either ingrained prejudice or a set of factual misapprehensions about the nature of homosexuality might've prevented the application of Equal Protection to a case like this in 1890 should be neither here nor there; we want to look at the form of the principle they endorsed (the law should not make arbitrary or invidious distinctions between classes of people) and see whether there are internal reasons to extend it (or not) in this way. (Hayek's familiar point about the legitimacy of law residing in its generality also mitigates against fetishising the response we imagine some set of people at a specific historical time would've had to a particular case, which implies that the normative force of law is bound up with some special right to bind future generations possessed by the Framers.)

The phrase "living constitution" has deservedly earned a lot of ugly baggage. A jurisprudence that endorses whatever five judges think our "evolving needs" require reduces the law to meaninglessness; if nobody's willing to defend that anymore, that's all to the good. But the Constitution is a document of broad principles. The best translations of poetry are almost never literal word-for-word transliterations. So, too, good constitutional translation demands some sensitivity to context and probably a greater willingness to abstract than most "strict constructionists" would be comfortable with.

Well, that should be enough blood in the water; attack!

ADDENDUM: The Lawrence Lessig paper [PDF] linked above may actually be what Lithwick's asking for: A good, relatively recent atempt to defend an interpretive method more flexible than what strict construction allows without (one hopes) degenerating into chandelier monkeys.