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Constitutional Theory

The Living Constitution

A funny thing happened to Americans on the way to the twenty-first century. We have lost our ability to write down our new constitutional commitments in the old-fashioned way. This is no small problem for a country that imagines itself living under a written Constitution.

Seventy-five years of false notes and minor chords, culminating in a symphony of silence – and the twenty-first century will be no different. Simply look around you. We are now in the midst of great debates about abortion and religion, about federalism and the war powers of the presidency. But nobody expects a constitutional amendment to resolve any of these issues – instead, we see only symbolic gestures on matters like flag burning and gay marriage.

Whatever the future may hold, don’t expect big changes through formal amendments. We the People can’t seem to crank out messages in the way described by Article V of our Constitution. Our writing machine has gone the way of the typewriter. But why?

There are three possibilities: there is something wrong with the ma-chine, something wrong with the American people, or nothing wrong with either. Conventional wisdom gives the happy answer: it’s a good thing that formal amendment is so hard; otherwise, the Constitution would become a mess, full of details signifying little.

The great challenge for constitutional law is to develop historically sensitive categories for understanding these developments.

[B]egin with the idea of an official constitutional canon – the body of texts that conventional legal theory places at the very center of the legal culture’s self-understanding. In America today, the official canon is composed of the 1787 Constitution and its subsequent formal amendments. At present, however, there is a yawning gap between this official canon and the nation-centered self-understanding of the American people. The profession has been trying to fill this gap with an operational canon – as I shall call it – that promotes landmark statutes and superprecedents to a central role in constitutional argument. But these attempts have proceeded in an ad hoc fashion, and it is past time for us to reflect on these efforts at adaptation and build an official constitutional canon that is adequate for use by lawyers and judges of the twenty-first century.

[W]e are presently reshaping the operational canon in a haphazard and undertheorized fashion. Though the notion of a “superprecedent” is becoming familiar, we have not yet begun to consider, for example, whether landmark statutes also deserve a central place in the modern constitutional canon. My affirmative answer isn’t all that novel: most notably, Abraham Lincoln repeatedly claimed that the Missouri Compromise should be accorded a “sacred” status comparable to the Constitution itself. During the twentieth century, a series of important writers has called on the profession to move beyond the common law’s skeptical treatment of legislation and to treat major statutes, in Justice Stone’s words, as “a source of law, and as a premise for legal reasoning.” But we have yet to begin the serious exploration of this view’s implications for the nuts and bolts of constitutional law.

By taking up the problem of canon definition, we shall be preparing the way for a breakthrough in the current impasse over interpretation. Once we get clearer about what we should be interpreting, the debate over how to interpret will take a different shape. Many disagreements that sound fundamental today will turn out to be arguments over the proper weight to be given to principles derived from twentieth-century texts as opposed to those inherited from earlier centuries. In contrast, proponents of similar-sounding positions today may often find that they have deeper disagreements than they had formerly imagined.

My ultimate aim…is to deny that law is politics by other means and that constitutional interpretation is mere pretense. Since the time of Marbury v. Madison, our legal culture has managed to provide Americans with a common reference point even as they waged an unceasing effort to transform the constitutional baseline for succeeding generations. If we allow this culture to disintegrate into a partisan shouting match, we will lose a great deal.

But we will never construct a solid foundation for legal interpretation by pretending that the American people have accomplished nothing of importance over the past seventy-five years. The life of the law, somebody once said, is not only logic but experience. The time has come to build a canon for the twenty-first century based on the truth of the entire American experience.