The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
For the past few weeks I have been teasing progressive nonoriginalists about how, if they really want something to worry about, they should be worried about conservatives accepting living constitutionalism-that is, the very same type of political updating that progressives favor but towards the right instead of the left. "Yeah right," I could hear them collectively saying. "It is living constitutionalism for me, but not for thee!" And yet, why need this be so? Now comes Richard Reinsch, the founding editor and director of the Liberty Fund's online journal Law and Liberty, to weigh in against originalism from the right. In a piece he entitled, The Liquid Constitution, Mr. Reinsch attempts to identify a position that might be called "Liquid Constitutionalism."
Mr Reinsch begins by positioning himself above the originalism-living constitutionalism debate. Indeed, he purports "to think more deeply than the framework of original-versus-living-constitution permits." Well, by all means. Like Jack Handey, let's all think more deeply.
As we shall see, this particular "deep thought" is weirdly relevant to our subject.
Mr. Reinsch tells us: "What should receive more discussion is the notion, expressed in The Federalist essays 37, 78, and 82, of 'Liquidating' the meaning of the provisions of the Constitution. Publius means by that that it is necessary to make clear terms that are apt to be contested." This is then followed by very lengthy quotes from Publius including this well-known quote:
Here then are three sources of vague and incorrect definitions; indistinctness of the object, imperfection of the organ of perception, inadequateness of the vehicle of ideas. Any one of these must produce a certain degree of obscurity. The convention, in delineating the boundary between the federal and state jurisdictions, must have experienced the full effect of them all.
I refer to this passage as "well-known" because originalists (and nonoriginalists) have been seriously examining the concept of "liquidating" meaning for quite a long time: at least since Caleb Nelson's 2001 article, Stare Decisis and Demonstrably Erroneous Precedents, 87 Va. L. Rev. 1 (2001). Indeed, at the last University of San Diego "Originalism Works-in-Progress Conference," University of Chicago law professor-and fellow blogger-Will Baude presented his new paper "Liquidation." As Will can attest from the ensuing discussion, the very concept of "liquidation" is hard to nail down, much less to determine how the process of liquidating meaning is supposed to work in practice. But it is no less important a topic for the fact it is a difficult one for originalists and nonoriginalists alike to get a good handle on.
So "liquidation" is not a new subject for originalists. What then has Mr Reinsch to offer on the subject? After lengthy quotes from Publius, he writes:
Publius argues that one of the most important principles of our Constitution (federalism) is difficult to define and ring-fence. Its meaning will have to be worked out through a process of politics, decisions, settlements. This will be the appeal to the "common constituents" of Federalist 46, or the citizens of the states to whom decisions on the different allocations of power between the federal and state governments will be referred for ongoing consent. And this process doesn't really end.
Surely this is not just a process to be undertaken by the federal judiciary in a manner that suffocates the opportunity for self-government. If the problem is that of making terms clear, then the pronouncements of the judiciary might give a definition or meaning, but this alone couldn't "liquidate" the Constitution's terms and provisions. Per Federalist 39, at one level the Court is a tribunal to prevent an appeal to the sword or dissolution of the compact; yet we're told in Federalist 78 that the Court should abstain from imposing its will on the elected branches. The Court must understand that its powers are derived from the people and its judgments are to uphold the fundamental law of the Constitution and not be a substitute for the Constitution. So the judiciary must take seriously the notion that it is an "auxiliary precaution," one that intervenes when the laws are at an "irreconcilable variance" from the Constitution. And while we let the Court's judgments percolate, we should not regard the Court's decisions as final, as abstract doctrines commanding assent.
I am all for the position expressed in the last sentence, but it needs some unpacking. Although it would require more than a blog post to fully develop, my view is that, while judicial "judgments" ought to be obeyed by other branches, the Court's "opinions" are just that: its opinions. For example, a judgment that an "act" of Congress is beyond its powers and is therefore not part of "the Supreme law of the land" because not made "in pursuance" of the Constitution is properly binding on the other branches. In particular, it is binding on the executive branch who may only execute a valid law. (Exactly why this is so requires further elaboration, and the exact scope of the respective interbranch duties can become complex.) Whether or not an "opinion of the Court" as to why an act of Congress is unconstitutional is binding on inferior courts as "precedent," in my view, such opinions are merely instructive to other branches.
Indeed, the practice of the justices agreeing to "opinions of the Court" was innovated by John Marshall in the Nineteenth Century. Previously, the justices each delivered their own opinions seriatim to explain their individual votes. In the wake of Marshall's capacious 1819 opinion in McCulloch v. Maryland, then-President James Madison (who agreed with the Court's judgment that the Bank was constitutional) pined for the guidance of multiple opinions:
I could have wished also that the Judges had delivered their opinions seriatim. The case was of such magnitude, in the scope given to it, as to call, if any case could do so, for the views of the subject separately taken by them. This might either by the harmony of their reasoning have produced a greater conviction in the Public mind; or by its discordance have impaired the force of the precedent now ostensibly supported by a unanimous & perfect concurrence in every argument & dictum in the judgment pronounced.
And yet, from John Marshall's day to ours, these "opinions of the Court"-both their "argument & dictum"-have come to be treated like rules of law, their language to be parsed and followed like statutes.
But how is this concern about a form of "judicial supremacy" a critique of modern originalism? Modern originalism is a method of interpreting or discovering the communicative content of the text of the Constitution. Like all other constitutional actors, judges have a duty to follow the law. But to follow it, they must first ascertain what it means. How they are to do so is what the debate between originalists and nonoriginalists is all about-the debate that Mr. Reinsch asks us somehow to transcend, or get beneath to something "deeper."
Although he says what "we must consider then is the case for a different originalism," his real target is originalism itself. Here is his conclusion:
Progressives have looked to the Court to pave a constitutional path of egalitarianism and emancipation that eagerly departs from the text, believing, as they do, that they stand atop history and understand its architectonic flow. But originalism further enthrones the judiciary, putting our elites on the Bench, to chart a course back to the Founders. In short, we play a game of elites by relying on a few men and women in black robes. What's the best play, though, with respect to the republican foundation of the Constitution and with regard to our long-term interests as those who value limited government? Putting authority to decide the meaning of the Constitution in the hands of the self-governing people is the superior move. (My italics.)
Set aside the fact that Mr. Reinsch is collapsing here the separate issues of ascertaining the meaning of the text vs. the appropriate role of the judiciary in our constitutional scheme. On second thought, don't set that aside. I wrote Restoring the Lost Constitution to address the issue of constitutional meaning, and Our Republican Constitution to address the issue of the proper judicial role in a constitutional republic. Collapsing the meaning of the Constitution with the appropriate role of the judiciary in ascertaining and enforcing that meaning against the other branches is a recipe for confusion. By obscuring what we are debating, it thereby obscures the appropriate terms of the debate.
OK, how is this is process of a "self-governing people" deciding "the meaning of the Constitution" supposed to work? Should we have a plebiscite to decide the meaning of the foundational document by majority vote? Should they be national plebiscites, or state by state (and how would the latter be operationalized)? No doubt Mr. Reinsch would reject national or state plebiscites, favoring instead putting the "authority to decide the meaning of the Constitution in the hands of" Congress and state legislatures. Yet these bodies are comprised of a very small subset of "the people." Congress is a mere 535 persons out of 318 million. And these legislative bodies are themselves supposed to be bound by the law of the Constitution, not make it. How then can it fall to them to interpret the meaning of the constraints imposed upon them? But don't take my word that this is a problem. Listen to Publius:
No man is allowed to be a judge in his own cause; because his interest would certainly bias his judgment, and, not improbably, corrupt his integrity. With equal, nay with greater reason, a body of men, are unfit to be both judges and parties, at the same time; yet, what are many of the most important acts of legislation, but so many judicial determinations, not indeed concerning the rights of single persons, but concerning the rights of large bodies of citizens; and what are the different classes of legislators, but advocates and parties to the causes which they determine?
Publius never confused "the people themselves" with their agents in the legislature. Indeed, the Framers' "republican" form of government was designed by them to protect the liberties of the people from their legislatures (and from other governmental actors). "We the People" are truly "self-governing" insofar as we are allowed to exercise the liberties defined by our private rights. But the founders well-knew that "We the People" do not literally "govern themselves" politically. (Recall the Declaration's phrase "consent of the governed.") So the Constitution was put in writing precisely so it would provide the law that governs those who govern We the People.
But this means that legislators can no more legitimately change the law that governs them without going through the amendment process of Article V-even if the judiciary improperly gives them a green light to do so-than the people can change the laws that govern them without going through the legislative process. Put another way, all legislator-agents of the people take an oath to obey "the Constitution of the United States." To what would that oath commit them if they can "interpret" or "liquidate" the meaning of the written Constitution however they please?
To ascertain the proper role of the judiciary in this system we need to begin by reading the text of the Constitution. Which returns us to the questions that Mr. Reinsch never actually addresses in his piece: What is the meaning of the fundamental law that governs all those who govern us, and how is that meaning to be ascertained? For example, as Jack Handey might ask: "How do we identify the meaning of 'mankind'?"
By identifying places where the Constitution's text is claimed to be uncertain and in need of "liquidation," Mr. Reinsch does not tell us how one first ascertains that is the case. Nor does he tell us how to identify the meaning of the many provisions of the text, whose meanings are quite clear and certain. This is what originalists and nonoriginalists have been debating and you do not transcend this debate by changing the subject.
Mr. Reinsch needs to flesh all this out. But if he is truly a "Liquid Constitutionalist" who believes that the "a self-governing people" or its legislators somehow gets to change or "liquidate" the meaning of the text over time without going through the Article V amendment process, then he is in good company: The company of the many good, intelligent, and learned persons who call themselves "living constitutionalists." He is just a conservative one.
Welcome to the debate.
[UPDATE: Numerous typos and other glitches corrected.]