How Originalism Saved the Constitution

What a recent essay in The Atlantic gets wrong; why Justices Scalia and Rehnquist disagreed with Justice Brennan on the same issue

In this column:

• How The Atlantic mistakenly wrote “killed” instead of “saved.”

• Justices Scalia and Rehnquist vs. living constitutionalism

• Justice Brennan’s defense of living constitutionalism

• Strauss’s living constitutionalism as common-law constitutionalism

Originalism to the Rescue

One reason I write so often about legal matters in a newsletter called “Governing Right” is that we need judges to get the law right if we are going to govern right.¹ Said another way, if judges (or writers) get the law wrong, governing goes wrong.

And this is what happened in Jill Lepore’s long essay in The Atlantic, “How Originalism Killed the Constitution.”

In truth, originalism saved the Constitution. It is is the judicial philosophy most consistent with constitutionalism and democracy—and therefore most consistent with American self-government.

For at least two generations, too many judges interpreted the Constitution to mean whatever produced the outcomes the judges wanted. This was undemocratic in at least three ways: Justices were ignoring the will of those who adopted the Constitution and its amendments; justices were too willing to overturn laws enacted by the people; and justices believed they—these unelected, unaccountable officials—should “update” the Constitution instead of leaving that to the people.

Lepore’s argument begins on solid ground. It points out that we have a process through which the Constitution can be amended. True. It notes that this process hasn’t been used much in recent decades (even though it has been used frequently at the state level). Again, true.

However, a reasonable response is that the lack of recent amendments is simply the result of the lack of national consensus about changing our governing charter. Since the Constitution is the final word on matters of law and policy, we should be glad that the Constitution hasn’t been altered without a national consensus to do so.

But in Lepore’s eyes, the lack of amendments is obviously a problem. And this is where the essay’s problems begin.

The people can change the Constitution when they want to. They can also change policy by electing officials who enact new and different laws. So it’s not as though the recent stability in constitutional text prevents continuous alterations in governing. We originalists are happy to have alterations in governing…as long as those alterations in governing are produced democratically (i.e., via constitutional amendments and statutory change).

Lepore suggests, however, that judge-created alterations are necessary and/or desirable. But they are not necessary or desirable, she seems to imply, if they produce policy outcomes conservatives like. The reader is led to believe that originalism has enabled justices to write decisions cheered by the right, and this is undemocratic and unjust. But when justices use some sort of progressive living-constitutionalism to produce decisions the left cheers, this is healthy.

I think virtually all originalists would stand behind Lepore’s view that constitutional amendments are an invaluable, indispensable tool for refreshing American governing. The difference is that originalists believe that changes to our laws and governing structures must come from the people. The original Constitution and its amendments were produced by the people and deserve respect. Statutes are produced by the people and deserve respect. Originalism, then, is a form of fidelity to self-government. Moreover, we must never forget that originalism was largely a response to the undemocratic judicial adventuring of the mid-20th century. Too many justices took it upon themselves to reconfigure law to suit their own preferences.

So most originalists will object when Lepore writes, “Constitutional change by way of formal amendment has alternated with judicial interpretation, in the form of opinions issued by the U.S. Supreme Court, as a means of constitutional revision.” No, justices don’t get to revise the Constitution; they need to interpret its text according to the meaning of the words as understood by those who adopted it. Similarly, we object when Lepore writes that, because of originalism, “The Constitution limps along, a walking shadow.” On the contrary; it is as strong as ever. Instead of pushing the Constitution toward irrelevance through rulings that replace its intended meaning with justices’ preferences, today’s Court treats our founding document—and the popular will it reflects—with the respect it deserves.

Scalia and Rehnquist vs. Living Constitutionalism

Two of the finest primers on the link between democratic decision-making and constitutional interpretation are by recent conservative Supreme Court justices. I will just briefly mention them here even though both deserve to be read and discussed in full.

The first is the opening essay by Justice Scalia in his 1997 book, A Matter of Interpretation. Scalia begins by contrasting common law with positive law (statutory and constitutional law). The former is evolutionary, judge-created law made up primarily of precedents and customs; the latter is text adopted by those authorized to govern (in the US: the people and their representatives).

One of Scalia’s most important arguments is that the judge in a common-law setting aims to find the most desirable resolution for the case at hand. That is entirely different—in terms of methodology, mindset, etc.—than the judge interpreting authoritative texts. Judges working with positive law must respect adopted language—not unilaterally determine what is ideal—because the judge is functioning in a democratic republic. “It is simply not compatible with democratic theory that laws mean whatever they ought to mean, and that unelected judges decide what that is.” The last sections of the essay take on the idea of a “living constitution,” whereby judges presume to refresh our governing charter to fit the times.

The second is by then-Associate Justice William Rehnquist: a 1976 essay “The Notion of a Living Constitution” in the Texas Law Review. Remarkably, the piece is still highly relevant today even though it was penned several years before the recognized rise of originalism.

Responding to the liberal/progressive turn of the Warren-Burger era, the future chief justice explains the dangers of judicial adventuring and the importance of respecting self-government. He notes that, via judicial review, courts may invalidate laws that violate the Constitution. However important, this still borders on antidemocratic, and that can be potentially troublesome “in this Nation, which prides itself on being a self-governing representative democracy.”

The only way for a judge to square self-rule and judicial review is to stay true to the Constitution. Since it is the agreed-upon charter of the people, the Constitution takes precedence over statutes. A court that overturns a law based on the Constitution is relying on the democratic will of the nation. But that defense falls apart when judges decide they can revise the Constitution and then invalidate laws based on their creation.

Once we have abandoned the idea that the authority of the courts to declare laws unconstitutional is somehow tied to the language of the Constitution that the people adopted, a judiciary exercising the power of judicial review appears in a quite different light. Judges then are no longer the keepers of the covenant; instead they are a small group of fortunately situated people with a roving commission to second-guess Congress, state legislatures, and state and federal administrative officers concerning what is best for the country.

As for the view that judges should feel empowered, if not obliged, to update the Constitution, Rehnquist writes that our founding charter “was designed to enable the popularly elected branches of government, not the judicial branch, to keep the country abreast of the times.”

Justice Brennan’s Living Constitutionalism

To appreciate Scalia’s and Rehnquist’s arguments, we must understand what they and later originalists were fighting against. That view was articulated by Justice William Brennan in a 1985 lecture at Georgetown University.

Brennan, like many other living constitutionalists, begins his move away from the text and original understanding of the Constitution by invoking the principles he believes to be the foundation of the Constitution. In his words, “the Constitution embodies the aspiration to social justice, brotherhood, and human dignity that brought this nation into being.” This sleight of words enables him to elevate principles not found in the Constitution above text that is in the Constitution and then use those manufactured principles to declare unconstitutional the laws, regulations, and practices he does not like.

Why does he feel entitled to reason from invisible principles instead of the words themselves?

Like every text worth reading, it is not crystalline. The phrasing is broad and the limitations of its provisions are not clearly marked. Its majestic generalities and ennobling pronouncements are both luminous and obscure. This ambiguity of course calls forth interpretation, the interaction of reader and text.

Though originalists believe relying on text and original public meaning is the way judges limit themselves and show respect for the people, Brennan argues that originalism “is little more than arrogance cloaked as humility. It is arrogant to pretend that from our vantage we can gauge accurately the intent of the Framers on application of principle to specific, contemporary questions.”

Originalists generally believe that the Constitution’s rights are limited and that policy areas not covered by such rights are open to legislation. This, we believe, allows the people, via the political branches, to work out most political issues, keeping courts out of unnecessary, polarizing battles. Brennan disagreed, arguing that there should not be a presumption against constitutional claims when constitutional text is ambiguous. Of course, this works with the argument above to cleverly justify judicial activism: Elevate invisible constitutional principles, declare the text to be ambiguous, deny the presumption in favor of democratic decision-making, and then overturn legislation the judge dislikes by saying the invisible principles require it.

Originalists often believe judicial review is most appropriate when it enables the democratic process to function well. This way judges are not forcing their preferences on the nation but strengthening the processes by which the people make key decisions. Brennan disagreed: The Constitution limits democratic decision-making in a number of ways; therefore, there is no reason to defer, as a general matter, to the people or their legislators.

Many originalists would find Brennan’s judge-liberating approach unpredictable. It comes across as a permission slip to do as the judge wants. Untethered from the actual words in question and their long-held meaning, a judge’s reasoning could roam and settle far and wide. That did not seem to trouble the late justice. “The ultimate question must be, what do the words of the text mean in our time. For the genius of the Constitution rests not in any static meaning it might have had in a world that is dead and gone, but in the adaptability of its great principles to cope with current problems and current needs.” Later, he argued, “For if the interaction of this Justice and the constitutional text over the years confirms any single proposition, it is that the demands of human dignity will never cease to evolve.”

Living Constitutionalism as Common-Law Constitutionalism

A similar but more recent defense can be found in this excerpt from Prof. David Strauss’s book, The Living Constitution. He defines a living constitution as “one that evolves, changes over time, and adapts to new circumstances, without being formally amended.” Like Brennan and Lepore, he believes that since the amendment process is so difficult “it is just not realistic to expect the cumbersome amendment process to keep up” with huge societal, political changes. Moreover, he believes “an unchanging Constitution would fit our society very badly” (presumably he believes democratically enacted statutes aren’t enough to ensure governing keeps up with the times).

Strauss recognizes the criticisms of living constitutionalism, two in particular. First, it allows someone (a judge) to change the Constitution, “doing so according to his or her own ideas about what the Constitution should look like.” And second, that it can seem like something other than law. “Once we look beyond the text and the original understandings, we're no longer looking for law; we're doing something else, like reading our own values into the law.”

But he believes (unlike Scala) that the evolutionary nature of the common law shows how constitutional law can be fairly adapted by the judiciary. In fact, he thinks this is how things actually operate: “Our constitutional system has become a common law system, one in which precedent and past practices are, in their own way, as important as the written Constitution itself.”

Strauss ultimately finds value in the logic of common-law-ism. It evolves over time to address real controversies, it is supple enough to address future controversies, it is clear enough to be reliable, it has been tested enough to be trusted, and (thanks to a mountain of precedents) it is sturdy enough to prevent wild, novel directions.

Though I find his defense marginally more palatable than Brennan’s, it suffers the same problems. Two stand out. First, it still gives entirely too much power to unelected, unaccountable judges. Second, it fails to appreciate the gravity of positive law. Common law is built on itself; it is the accumulation of court decisions. It is a conversation among a succession of judges. But constitutions and statutes are created by the people. Originalism says the text of positive law demands greater respect. It is not something to be riffed on by judges. It is not something to be modernized by courts. It is the agreement of the people, and it must be interpreted faithfully until it is changed by the people.

Indeed, we might say that that the basic difference between originalists and living constitutionalists comes down to self-government. Originalists, believing in the right of the people to rule themselves, are not willing to cede huge parts of the law to the preferences of judges.

1. There are seven reasons I (a non-lawyer) write about law so much in a newsletter about governing. 1) Good governing requires courts to get things right like separation of powers, federalism, ordered liberty, etc.; 2) Inside of government, policy people often defer to lawyers when they shouldn’t; 3) Outside of government, policy people ofter defer to lawyers when they shouldn’t; 4) The anemia of Congress has resulted in courts dealing with the most important policy matters; 5) Legal opinions are often excellent explorations of governing issues; 6) Lawyers and judges can make big mistakes—substantive due process, presidential immunity, the neglect of the guarantee/republicanism clause, Lemon—that could’ve been avoided with a better understanding of governing ; 7) all fields and disciplines develop blind spots due to paradigm-thinking; this can be avoided with regular input from outsiders.