It is unclear how the lower courts maintain any form of continuity. It is not enough to claim that originalism provides continuity across generations and their legislatures. Is this yet another illustration of the hidden hand, or even more appropriately, the deus ex machina? Dissenting voices and sometimes concurring voices routinely challenge the semantics and histories of the majority decision. It is clearly not the case that there is one history of the Founding Fathers. If nineteenth-century semantics can resolve the meaning of words in the eighteenth-century Constitution, or that somehow they have captured the communal ghost of public understanding, then originalism may have a foundation.
One originalist position (there are many variants) argues that the inexorable logic following original meaning could drive to conclusions without being hampered by precedents. Aside from the arrogant assumptions in this claim, this method of Constitutional exposition ignores the incrementalism of precedent and provides fertile soil for sneaking politics into judicial decision-making. There is also the troubling presumption that the resulting body of positive law will somehow triangulate into a coherent and rational body of law.
Strict construction of the necessary and proper clause would have hamstrung the central government and elevated the semi-sovereign states into Balkanized competitors. The federal government as we know it would have long since passed away. Loose construction of that clause permitted legislatures to make alternate policies, most of them consistent with the Constitutional requirements. As the originalists logically must have strict construction of necessary and proper, the legislative decisions on policy means would have been irrelevant if restricting means to the one and only best option; they only need a decision on government objectives. This logic puts extraordinary weight on judicial decision-making while circumscribing the legislature and executive.
Originalists and those echoing Rehnquist’s critique of Living Constitution claim to narrow choice to that guided by popular rule, but that would require the broader interpretation of necessary and proper. It would be ironic if so-called originalism required initial loose constructions. Claim whatever, the public face has a complex skeletal structure. Equally tell-tale is the originalist claim that strict construction required attention to semantics and public understanding while concluding in turn that the ultimate determination of means (not ends) must fall as it may. It is not clear that this assertion preserves the original legitimate legislative objectives. Whether the semantic quibbling and a reconstruction of supposed public understanding is a guide, it is highly ambiguous.
Originalism claims greater popular government than Living Constitution perspectives do. What is the connection between the search for original meaning and a parade of successive legislatures? The search for the final meaning seems to be at odds with, rather than sensitive to the republican principle. It is similarly misleading to claim that the Living Constitution interpretation gives the Constitution a life separated from the original Constitution. The image of a state and its ordered liberty fixed by events in the past for all posterity to enjoy is a curious metaphysic where the dead send commands to the living. This conjures the image of an organic state where power and society combine to form a being with life and will of its own transcending its individual components. The Founding Fathers, particularly Jefferson, saw the states as a machine made by man for human purposes. Citizens should not worship the state or its government; the same applies to the Constitution. Using the Constitution as a bridge between common law and positive law recognizes its importance without a metaphysical overlay. Stare decisis limits judicial roving and wondering far more than originalism in any of its forms. Originalism claims to be more conservative then the Living Constitution approach, yet many of its results, as demonstrated in this book, are quite the contrary.
Living Constitution
Diehard originalists will claim that sneaking politics into judicial decision-making is the problem with its major alternative, the “Living Constitution.” There are, of course, many variants of the Living Constitution as well. We dismiss any variant of either approach that relies on an organicist theory. The Constitution is not an organism and it does not have a life cycle. The metaphor is convenient but also misleading. Humans, except for Dr. Frankenstein, do not make organisms (at least not yet). They make machines, whether cotton gin or constitution, to do the tasks that hopefully make life better, whether city, state, or nation. Creating the nation-state and nation-state system was a stroke of collective genius. It solved several problems but created more. That is why we wait for the improved version. That does not occur because the organism is maturing; nor does it occur because the organism has a will and purpose of its own. It occurs because humans sometimes need a better mousetrap. The Constitution was not a gift from on high; the Constitution does not command our worship or prayer. It is slowly changeable through the man-made amendment process. It changes in other ways as well.
When Virginia wrote its new Constitution following the Revolutionary War, a committee of three undertook the first draft. The committee subdivided its tasks, and Jefferson got the assignment to rewrite the common law. He agreed. When the committee next met, Jefferson simply proposed to adopt English common law. The English judiciary had decided thousands and thousands of minor legal matters over hundreds of years. The common law grew by accretion, without central direction. Building a common law would require rejecting the wisdom of ages and starting all over again. When this slow accretion becomes a hindrance, the legislatures can adopt positive or statutory law that creates an outer layer around the common law. This is the variant of Living Constitution adopted here.
It is an originalist caricature to reduce the Living Constitution method to widely varied interpretations based on the nature of the times. This is the same originalism that originally sought to divine the intentions of forefathers long since passed away. As Western culture entered the Enlightenment, it became clearer that a more conscious or deliberative law complemented the slow accretion of common law. Government had an increasingly key role; tradition was simply inadequate to guide the future in dramatically changing economic and social contexts. There is no thought here to abandon common law, just as Jefferson refused the opportunity to draft a uniquely American common law. Basing the wisdom of the present on that of the past does not glorify or give some charismatic authority to common law; simple human fallibility made it a wise choice. Stare decisis became and remains an important link between hundreds of years of the English common law and more deliberative additions. Our Constitution, particularly in the Bill of Rights, sets the principles or guidelines for this transition. A Living Constitution does not reject common law and replace it with more modern consciously made law. The Living Constitution is a bridge between the past and the present. The originalist obsession with semantics, divining the intent of those dead hundreds of years and establishing something called the public understanding and hence reduce the Constitution to a point in the past, is a vague way of governing the present. As John Dewey might ask: which of several publics do you have in mind this time?
Thematic Chronology
This book provides a technique for examining the court’s great chain of reasoning on various themes over time. Expecting combating attorneys to reveal the proper precedents for a case is a hit-and-miss proposition. The method used in this book identifies various themes or principles that have been at work under common law, under the Constitutional law, and under the precedents that follow. These themes follow chronologically from the Marshall Court through the Rehnquist Court. We assess cases using the sustainable case law principle. This has a backward-looking and a forward-looking dimension. First is it consistent with or along the lines of previous cases? Second, does the case provide a basis for further precedents that reflect the logic of the law instead of a jurist’s ethical or policy preference? To be sure, ethical and policy principles entwine with sustainable case law. Those are identifiable. If a directional change is necessary, what that change will be, and why the change needs be, should be upfront rather than camouflaged under the claims of semantics, the original intent, or past public understanding. A critically important test of a legal change is whether it can sustain the future case law without miring into ambiguities, uncertainties, and plural interpretations.
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