Harvard Law Review Harvard Law Review Harvard Law Review

Constitutional Theory

The Undead Constitution

A review of two recent books on living constitutionalism

 

LIVING ORIGINALISM. By Jack M. Balkin. Cambridge, Mass.: The Belknap Press of Harvard University Press. 2011. Pp. vi, 474. $35.00.

THE LIVING CONSTITUTION. By David A. Strauss. New York, N.Y.: Oxford University Press. 2010. Pp. xviii, 150. $21.95.

In what might be regarded as his standard “stump” speech, Justice Scalia has repeatedly championed what he calls the “dead Constitution.” The bon mot was and remains a good laugh line, but it has become increasingly inappropriate over the course of the quarter century during which Justice Scalia has been delivering it. When he was appointed to the Supreme Court in 1986, dead constitutionalism, that is to say, originalism, was still a mostly insurgent position within constitutional theory. Since then, and in no small part thanks to Justice Scalia’s own influence, originalism has become a leading approach to constitutional interpretation.

Meanwhile, originalism’s supposed archenemy, the living Constitution, has never been much more than a placeholder. As Professor David Strauss observes, “the critics of the idea of a living constitution,” that is to say, originalists, “have pressed their arguments so forcefully that, among people who write about constitutional law, the term ‘living constitution’ is hardly ever used, except derisively.”

Enter Strauss and another distinguished constitutional scholar, Professor Jack Balkin, to revive and redeem the living Constitution – to convert it from a term of derision into a proud banner, much in the way that the LGBTQ rights movement successfully appropriated the term “queer” from the bigots who meant it as an insult. In their respective books, Strauss and Balkin argue that the living Constitution, not the dead one, validates what is best in our constitutional tradition.

Strauss and Balkin address somewhat different audiences. Both Strauss and Balkin write lucid prose that should be comprehensible and enlightening to an interested layperson, but Strauss will likely reach a wider audience, whereas Balkin will likely have more influence within the academy. Strauss’s short book contains no citations and speaks to the general public. Balkin’s much longer book is deliberately more scholarly.

Despite uniting under the banner of the living Constitution, Strauss and Balkin offer different theories of what the living Constitution is and why the People should give it their allegiance. Strauss offers a descriptive account of constitutional law in which the Supreme Court uses the common law method to interpret and adapt the Constitution to changing times. He also thinks, as a normative matter, that the common law method itself confers legitimacy on the Court’s decisions. By contrast, Balkin places greater emphasis on popular movements. He argues that the Constitution’s legitimacy derives from a historical process of continual popular commitment to see in the Constitution the possibility of redeeming the document’s own promises of a more just society.

In embracing the originalist label, Balkin aims to accomplish a kind of intellectual jujitsu, turning a theory that was engineered largely by political conservatives toward liberal ends. If originalism can validate a constitutional right to abortion, as Balkin’s version of originalism does, then liberals need not fear originalism, and conservatives who seek to undermine the legacy of the Warren and Burger Courts must go back to the drawing board.

Despite its pretensions of objectivity and determinacy, the real strength of conventional originalism was always the way in which it seemingly derived its theory of interpretation from a straightforward and intuitively appealing theory of legitimacy: because acts of constitutional lawmaking were needed to make the Constitution into law, its words should be interpreted in accordance with the meanings those words had when they became law.

Popular acceptance can make the Constitution a useful focal point for settling otherwise fractious questions; it can provide what Strauss calls “common ground.” Yet the focal-point account of the Constitution does not fully capture the role the Constitution plays in American life. Balkin offers a bridge between the brute fact of popular acceptance, to which Hart’s theory and Strauss’s focal-point view would direct us, and a vision of “constitutional patriotism” that better fits American’s long-term attitudes toward our Constitution.

What would a truly living Constitution look like? This Review does not offer an affirmative theory in detail, but it gestures toward a synthesis of Strauss’s and Balkin’s visions. As Balkin argues, social and political movements build the meaning of the Constitution over time, but contrary to Balkin’s claims, they pay barely any attention to constitutional text, much less to original meaning. The views of these movements necessarily influence judges and Justices who are drawn from the larger society and appointed through a political process, but because they are judges, they use legal tools – especially the common law method emphasized by Strauss – to sort among those social and political changes that can be reconciled with the constitutional text and those that cannot.

In the end, the democratic legitimacy of judicial review comes from nothing grander than the fact that what the People more or less willingly accept when they accept the Constitution’s legitimacy is an ongoing legal tradition that includes judicial review. The result is the highly imperfect system with which we are familiar. It is unrealistic to expect anything better. Even a living Constitution will not be a perfect one.