Can a constitution “live”? Is the alternative to a “living” constitution reinterpreted and modernized by judges a “dead” constitution hopelessly out of touch with modern realities? William Van Alstyne, in Clashing Visions of a “Living” Constitution critiques (nay, mocks) several schools of living constitutionalism and sets out what he believes is the one true path to a living constitution. This essay is lively, insightful, irreverent and makes an important, if not wholly novel, set of points. It reminds me anew why I have recommended Van Alstyne’s “critical guides” to Marbury and McCardle to Constitutional Law students for years.
The essay (originally a lecture) opens with musings on confirmation hearings for Supreme Court justices and the proper scope of judicial constitutional review. Acknowledging that there are many schools of constitutional interpretation, Van Alstyne looks at various schools associated with the notion that the United States Constitution is a “living” constitution. He examines non-interpretivists’ (non-original interpretivists’s? ) efforts to “free us from the despair of textual uncertainty” and “the tyranny of-and-the-futility-of endlessly-contestable history.”
Van Alstyne focuses particular scorn on one non-interpretivist, Bruce Ackerman, who famously elucidated a de facto constitutional amendment outside the process provided in Article V. Noting that various amendments to the U.S. Constitution as originally understood could not support the interpretations given them by the Supreme Court, Ackerman (in Van Alstyne’s prose):
at once went on, forcefully, to declare that the Court’s decisions could nonetheless be rightly seen as actually resting on solid and secure foundations, namely, foundations of “nontextual amendments” or, to give credit (where such credit is surely due!), to what one may—in my own view—call “Ackerman” amendments, and, accordingly, all those who enlist in this school of constitutional jurisprudence are perhaps best described either as “Ackerlytes” or even, perhaps, as “Ackolytes” (but surely not so churlishly, perhaps, as mere “Ackermaniacs”)…. [Changes brought about through the appointment process by a President who was thereafter reelected] serve as “real amendments.” And so, accordingly, it would be inappropriate for any later Supreme Court to go back [on such amendments] … [T]his is the way—or at least one equally valid way—in which you keep the Constitution “alive.”
What rapier-like prose! Could Pope have done better? But, lest I digress, we should return to the basic argument.
Constitutionalists, says Van Alstyne, fall into two basic camps: “obligationists” and “opportunists.” Discussing the lively but well-worn example of Hugo Black, Van Alstyne says the former read (and re-read!) the Constitution’s text. Obligationist judges take seriously the Article VI oath to “support and defend this Constitution, not some other.” Though they may differ on interpretations of a constitutional phrase, they are committed to a non-living interpretive task, the living constitution left by them with the people through the Article V amendment process. Opportunists, conversely, whether from the right or the left, interpret “suitably adaptable clauses” expansively, ignoring clauses not aligned to their desires.
Using the metaphor of visible cambian rings that record a tree’s growth, Van Alstyne says amendments to the US Constitution register changes in society. A healthy society should display these changes in formal amendments, not through sleight-of-hand and scarcely visible reinterpretations by unelected judges (whether or not their appointing presidents are reelected). Is our society healthy? Not by this measure, for an absence of cambian rings signals petrification. Today, he hypothesizes, there is a “negative synergy” for new textual amendments because the public is unwilling to entrust new constitutional texts to opportunist judges who might expand upon the meaning of any such public commitment.
The failed Equal Rights Amendment, which provided an opportunity for one such authentic constitutional cambian ring, is illustrative. Opponents, with some justification, argued that this amendment, expansively interpreted in ways wholly unintended, might remake cultural norms (including dress differences), weaken military muscle, and undermine institutions like the family, motherhood, and marriage. By contrast, argues Van Alstyne, the 19th Amendment, which “gave” women the right to vote, was a reflection that women had already been voting in a majority of the states at the time of the amendment. The “stealth” 27th Amendment, ratified from 1789 to 1992 by far more dead than living Americans, is hardly a ring, but at least it is “of no particular harm.”
Providing “an illustration central to the theme of this lecture in a contemporary setting,” Van Alstyne hypothesizes a federal statute that reduces jury size for federal court criminal cases to seven persons (from the current twelve). Functionalist supporters might say this reform would save costs or reduce the number of hung juries, perhaps helping to take criminals off the street. Functionalist opponents might say that the problem of costs to the criminal justice system comes from the proliferation of crimes, not the number of criminals, and that reduction of jury size violates the “personhood” of the defendant.
Were one to peruse the text of the 6th Amendment, one would find a “right to trial by jury” but no jury size specification. Does failure to specify mean any size goes? Would a speech by James Madison introducing the Bill of Rights in the first Congress that said “any size is fine” close the case (even though notes of the speech may not be accurate and others may have disagreed with Madison, either in Congress or in state ratification discussions)? Since there was no such speech, might one look to the Article III provision–“the trial of all crimes except in impeachment shall be by jury,” to the debates at the Constitutional Convention, and to the ratification debates to see if anything was said about jury size. In the Virginia ratification convention, it turns out, there was discussion of the point, and Madison (reportedly) said that “jury” meant “12” as a technical term going back to Blackstone. This interpretation, apparently, was acceptable to skeptics.
How does this relate to confirmation of judges, the point of departure for Van Alstyne’s essay? The point, he says (as forcefully as Ackerman pushes nontextual amendments), is that the people will be loathe to turn any new amendment over to judges for interpretation unless those judges are obligationists. If judges (and constitutional law scholars) take as their mission to fashion the world into their constitutions rather than this constitution, new cambian rings will not be forthcoming. Confirmation processes will remain political cat fights between opportunistic senators of the left and right, and Congress itself will continue to be lazy concerning its own constitutional constraints.
Having for several years taught a seminar on constitutional amendment, I second these observations, as well as this parting concern: “That during the decades of my own (misbegotten?) most active academic years, we may have so far gotten accustomed to the ‘exogenous’ Constitution that the amendment process has itself begun to recede down a rabbit hole … and the country may frankly be not really better—but significantly less—well off on that account.”
Interestingly, the Supreme Court, on the one occasion when it considered what it means to be “attached to the principles of the Constitution of the United States,” concluded (albeit with some dissent), that this did not mean attached to rights of contract, compensation for property taken, free speech, freedom of religion, bearing arms, (unlimited) other rights, states having all powers not (narrowly) delegated, equal protection, or due process. Rather, said the Justices in Schneiderman v. United States, it means attachment to the Article V process of authentic, difficult, super-majoritarian, and peaceful change. Now that’s a living constitution!