The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
One of the main potential advantages of living constitutionalism is the possibility that it can facilitate societal progress. However enlightened the generation that drafted and ratified various parts of the Constitution may have been, there is much we know that they did not. In theory, we could just use the constitutional amendment process to update the document in light of new insights. But such formal updating is extremely difficult, because the US Constitution is perhaps the hardest to amend in the world. Thus, living-constitutionalist judging may be necessary to ensure that constitutional law keeps up with new knowledge and increasing enlightenment. By that means, we get a gradually improving constitutional law without (at least in most cases) having to go through the formal amendment process.
But an insightful new article by Duke law professor Ernest Young casts doubt on the optimistic assumptions underlying this view. What if instead of improving constitutional doctrine over time, living constitutionalism actually makes it worse? What if later generations are less enlightened than the framers, rather than more so? He argues that this is exactly what happened during the first several decades of the era of Jim Crow segregation, after Reconstruction. Here is the abstract to his article on "Dying Constitutionalism":
The notion of a "living Constitution" often rests on an implicit assumption that important constitutional values will "grow" in such a way as to make the Constitution more attractive over time. But there are no guarantees: What can grow can also wither and die. This essay, presented as the 2018 Robert F. Boden Lecture at Marquette University Law School, marks the sesquicentennial of the Fourteenth Amendment's ratification as a powerful charter of liberty and equality for black Americans. But for much of its early history, the Fourteenth Amendment's meaning moved in reverse, overwhelmed by the end of Reconstruction, the gradual entrenchment of Jim Crow in the South, and the consolidation of racial discrimination in the North. All of the recognized modalities of living constitutionalism—evolving public mores, social movements, electoral outcomes and landmark legislation, and common law development—contributed to constitutional changes that left the Fourteenth Amendment meaning less in the late 19th and early 20th centuries than it did at its ratification. The Amendment's early history is thus an instance of dying—not living— constitutionalism. It is far from clear, however, that alternative constitutional approaches—such as originalism—could have prevented this constitutional regression. This essay explores how the Fourteenth Amendment got so off track and whether the theory of living constitutionalism can be modified to help it hang on to the Constitution's core commitments in the face of social change. Ultimately, the essay suggests that constitutional methodology may be less important than constitutional culture in this regard, and that the culture of living constitutionalism ought to emphasize caution over optimism about the inevitability of moral progress. The Fourteenth Amendment's "lost years" offer precisely the sense of tragedy that might inspire that cultural shift.
The key point is not just that constitutional law got worse, rather than better, but that what are today standard living constitution arguments helped make it so. For example, judges and others argued that segregation laws should be upheld because they were consistent with evolving societial morality, the demands of what we would today call influential "popular constitutionalist" movements, and common law doctrinal reasoning.
Segregation law is not the only field where constitutional doctrine deteriorated during post-Reconstruction era. A similar pattern occurred in the area of immigration law, where a strictly limited original understanding of federal power to restrict migration gave way to the "plenary power" doctrine, which upheld even immigration legislation blatantly motivated by racial, ethnic, and religious prejudice. Some key elements of that transformation survive even to this day, as witness the recent travel ban decision, in which the Supreme Court upheld blatant discrimination on the basis of religion of a kind it would not tolerate anywhere else. Here too, constitutional deterioration was facilitated, in large part, by what we would today consider "living constitution" modes of legal interpretation. For example, the 1889 Chinese Exclusion Cases in which the justices first ruled that the federal government has a general power to restrict immigration cited the "necessity" of combating supposed threats to sovereignty, such as "the presence of foreigners of a different race in this country, who will not assimilate with us," and noted that "the differences of race" were a major factor in the threat supposedly posed by Chinese immigrants excluded by the law it upheld.
One can surely find other examples of constitutional deterioration in American history, as well. The Jim Crow era is the most notorious example, but likely not the only one.
As Young emphasizes in the article, the danger of "dying constitutionalism" does not by itself prove that we should reject living constitutionalism in favor of originalism. He remains a living constitutionalist himself. But he does urge his fellow living constitutionalists to recognize that "there is no necessary connection between living constitutionalism and moral progress" and that "we will get better results out of living constitutionalism if we spend more time worrying about the downside risks."
Living constitutionalists could try to build safeguards against such deterioration in their theories. For example, they could emphasize (as some versions of living constitutionalism already do) the importance of substantive, not just procedural, constitutional values. If, for example, the key point of the Fourteenth Amendment is to restrict racial and ethnic discrimination by the government, a living constitutionalist could allow changing interpretations which help achieve that purpose, but reject those that undermine it (even if, perhaps, they are backed by popular movements, common law reasoning, and other living constitution modalities). But, at the very least, Young is right to suggest that living constitutionalists need to devote more attention to the dangers of deterioration than most currently do.
In the last part of his article, Young briefly argues that his analysis does not justify a preference for originalism over living constitutionalism, because the former cannot protect against deterioration any better than the latter. One reason is that the original meaning of some key parts of the constitutional text are broad and "open-ended," and therefore susceptible to judicial undermining no less than living constitutionalism is. Perhaps that is indeed true in many cases. But, of course, many important parts of the Constitution are actually fairly precise, or at least have precise core meanings, despite some fuzziness at the periphery. Moreover, even if the text is broad, other evidence of original meaning can help fill in the details. While it may be difficult to discern the full extent to which the original meaning of the Fourteenth Amendment bans racial discrimination, it clearly does so in the sort of case at issue in Plessy v. Ferguson (1896), which addresssed discrimination with respect to freedom of contract, one of the core "civil rights" that the framers of the amendment sought to protect.
Young also points out that neither originalist nor living constitutionalist judges will necessarily be able to withstand the pressures of public and elite opinion, especially in cases where doctrinal arguments are fairly closely balanced. That is surely true. Constitutional methodology is far from the only influence on judicial decision-making, and often not the most powerful. But, at the margin, a methodology that emphasizes the importance of standing firm against societal pressure is likely to offer more protection against deterioration than one that often provides justifications for accommodating it.
The risk of "dying constitutionalism" cannot definitively settle the longstanding conflict over constitutional methodology. Even if degeneration over time is a serious danger of living constitutionalism, it could be that the perils of originalism are even worse. But, at the margin, the threat of "dying constitutionalism" does strengthen what I call the "instrumental" justification for originalism, which holds that originalism is preferable to the alternatives because it leads to better outcomes, rather than because it is intrinsically valuable.