The Originalist Challenge to the
For most Americans, the Constitutional bicentennial of 1987 was an
occasion for celebrating consensus and continuity in the American political
tradition In a study of cultural constitutionalism, historian Michael Kammen
observed that the constitutive document written by the founders has "held up
remarkably well and has thereby provided stability for the majority as well as
shelter for aggrieved groups and individuals."l At the level of
partisan politics, however, the bicentennial year was marked by two bitter
constitutional controversies In the Iran-Contra affair a major battle was waged
between the president and Congress over the scope of executive power in foreign
affairs A second constitutional conflict arose when President Ronald Reagan
nominated Judge Robert Bork to the Supreme Court.
Dramatic as it was, the constitutional politics of the Iran-Contra
affair presented a familiar picture of confrontation between the president and
Congress, based on the principle of the separation of powers that is inherent
in the design of the Constitution The fight over the Bork nomination was more
significant constitutionally because it went beyond the problem of the scope of
judicial review that had been the focus of controversy in Supreme Court
appointments since the 1960s Bork was a provocative nominee because he
questioned the living constitutionalist consensus on which liberal
jurisprudence and the structure of the regulatory-welfare state had been built
since the New Deal More than at any other time in the twentieth century, the
nature of the Constitution and the meaning of constitutional government were at
issue in the appointment of a Supreme Court Justice.
Bork's nomination was defeated Contrary to the hopes and expectations of
his opponents, however, the result was not an affirmation of judicial
liberalism as a public philosophy.2 In the following years, many
liberal scholars perceived constitutional discontent not unlike that which
inspired the original-intent jurisprudence that Bork represented. According to
Morton J. Horwitz, for example, there was still a crisis of legitimacy in
constitutional law caused by the destabilizing force of modernism. As before,
American constitutionalism faced the problem of how to establish a system of
legal fundamentality that would affirm the idea of continually changing
constitutional meaning under the concept of the living
constitution.3 H. Jefferson Powell, a decade earlier acclaimed for
his attack on originalism, lamented that fifty years of liberal jurisprudence
had left American constitutionalism in a state of intellectual and moral
confusion. Powell said contemporary constitutional theory was little more than
"a veiled apology for rule by a liberal oligarchy."4
That judicial liberalism did not enjoy a restoration of public
confidence does not mean that the defeat of Judge Bork, paradoxically, resulted
in the vindication of originalist jurisprudence as a dominant philosophy of
constitutional law. Conservatives disagreed among themselves over the
importance of limiting judicial discretion, the main objective of originalist
critics.5 In general, therefore, the field of constitutional law in
the 1990s was an ideological battleground. In contrast to the celebratory
attitude of Constitutional bicentennialism, practitioners and critics of
constitutional law talked past each other, able to agree neither on the nature
and content of the Constitution nor on the principles and rules for
interpreting and amending it. Although often described in "crisis language" by
participants, from the standpoint of an external observer the constitutional
debate was the product of normal historical change. What many observers saw as
a crisis of legitimacy in the legal order resulted from the breakup of the
liberal ideological consensus concerning the nature of government, law, and
society in twentieth-century industrial capitalism.
This chapter examines original-intent jurisprudence as a challenge to
the theory of the living Constitution that provided the normative framework for
the post-New Deal liberal state. After considering the liberal response to
originalism, it discusses the Bork nomination as a national referendum on
originalism as a constitutional philosophy. The chapter then describes the
development in the 1990s of neorepublican amendment theory and common-law
constitutionalism as revised versions of unwritten living constitutionalism,
and textualist-originalism as a variation on the founding project of written
constitutionalism. The chapter concludes with an assessment of some recent
Supreme Court decisions that reflect the tension between written and unwritten
constitutionalism that has characterized American constitutional law in the
The principal finding is that the attempt to recover the founding
project of written constitutionalism, while it has not gained many converts
among liberal scholars and judges, has succeeded in revising the terms of
debate in contemporary constitutional law. The main issue is no longer, as it
was in the New Deal era, the proper scope of judicial review under the theory
of the living Constitution. Increasingly, the focus of academic and judicial
controversy is the fundamental question of the nature of the Constitution, in
particular, whether the American people have a written or unwritten
constitution. While admittedly a theoretical question, from the standpoint of
citizens and actors within the constitutional order it raises the practical
issue of whether the people of the United States are still capable of governing
themselves under a normative fundamental law that limits politics and
government. On this question ultimately depends the existence of liberal
republican government: the end, purpose, and final cause of the project of
written constitutionalism at the time the country was founded.
The historical context in which the crisis of legitimacy in living
constitutionalism has occurred is the breakup of the ideological consensus of
twentieth-century statist liberalism. Premised on the idea of market failure,
modern liberal ideology assumed the necessity of state intervention to achieve
social security, justice, and equality through the regulation of economic and
social life. In the western democracies, statist liberalism resulted in the
expansion of the discretionary authority of government and the relaxation, if
not elimination, of constitutional and legal restraints on political
action.6 Constitutionalism, defined as limited government,
individual rights, and private property, was repudiated in favor of unitary and
activist government dedicated to securing liberty through promotion of the
public interest based on recognition of class and group rights.
In the United States the New Deal state was rationalized under the
theory of the living Constitution. In the 1960s living constitutionalism
flourished in the constitutional jurisprudence of the Supreme Court and the
programmatic liberalism of the modern presidency, supported by a compliant
legislative branch. As it reached its apogee in the public policy and
constitutional law of the "Great Society," however, living constitutionalism
came under attack from conservative critics seeking a restoration of limited
government based on written constitutionalism. Conservatives objected that
legal liberalism reduced the written Constitution to a mere parchment barrier
of no intrinsic value. In the hands of activist judges the document was only an
empty symbol invoked to insulate judicial policy making against popular
criticism. To understand the source of this criticism, it is necessary to
consider the problem faced by liberal lawyers and judges since the 1930s of how
to constitutionalize the New Deal.
Supporters and opponents alike agreed that the New Deal effected
fundamental changes in constitutional meaning concerning the nature, purpose,
and authority of the federal government. Liberal lawyers argued that the
structural and policy changes effected by the New Deal were valid applications
of executive and legislative authority, fulfilling principles and values
embodied in the Constitution. Politically legitimate because they were approved
by the people, New Deal changes were subsequently confirmed as constitutionally
legitimate through the exercise of judicial review, resulting in a new deposit
of constitutional law. If in practical terms the New Deal stood for sweeping
and radical change in American government, in the eyes of its supporters it
illustrated the uniquely American idea of a constitutional revolution: changes
in the ends, powers, and procedures of government effected in a peaceful
manner, consistent with the nation's fundamental law.
The public philosophy of the New Deal was democratic majoritarianism,
expressed through executive control of legislation and administration. Judicial
liberalism was defined with reference to the idea of judicial deference to
policy making by the legislative and executive branches and was a subordinate
theme in the New Deal constitutional revolution. Judicial liberalism was known
principally by what it rejected — namely, the doctrines of laissez-faire
constitutionalism under which conservative judges substituted their subjective
policy preferences for those of democratically elected lawmakers. In the view
of New Deal lawyers, Franklin D. Roosevelt's controversial plan of 1937 to pack
the Supreme Court was intended to restore the division of responsibility
whereby the political branches construed the Constitution for public policy
purposes, while the judicial branch interpreted the Constitution where
individual liberty and property rights were concerned.
Although characterized by the catch phrase "judicial self-restraint,"
judicial liberalism acquired greater policy-making significance as the
Supreme Court's civil liberties and civil rights case load expanded in the
1940s and 1950s. Brown v. Board of Education (1954) was a milestone in
this development.7 The emergence of a new wave of liberal reformism
outside the judicial branch, however, was the decisive factor stimulating the
extraordinary line of judicial-activist decisions handed down by the Warren
Court in the 1960s. The Court's unabashed policy making removed any lingering
doubt about the character of judicial liberalism. By the end of the Warren era
the debate within liberalism between advocates of judicial activism and
judicial restraint, which preoccupied constitutional theorists in the 1950s,
was resolved in favor of activism.
The earnest, straightforward, and persuasive appeal to "fairness" that
marked Chief Justice Warren's most ambitious policy-making decisions disarmed
critics of judicial activism. Warren's unaffected progressivism obscured the
contradiction between judicial activism and the principle of judicial restraint
that since the New Deal had served to reconcile the Court's policy-making role
with the constitutional philosophy of democratic majoritarianism.8
Even if Warren Court decisions did not achieve all that reformers hoped for,
they pointed up a contradiction between judicial activism and the theory of
judicial self-restraint that could no longer be denied. In fact, the Supreme
Court's reformist activism looked for all the world like a resumption, at the
opposite end of the political spectrum, of the substantive due process
jurisprudence against which modern judicial liberalism originally defined
itself in the New Deal era.9
After Chief Justice Warren left the Court in 1969, the revival of
substantive due process jurisprudence continued in two landmark
right-of-privacy cases. In Eisenstadt v. Baird (1972), the Supreme
Court, in a 6-1 majority opinion written by Justice William J. Brennan,
rejected a state's argument that a policy that differentiated between unmarried
and married couples in the distribution of contraceptives was rationally
related to the legitimate state purpose of drawing a moral distinction between
sexual activity within and outside of marriage. The Court held that the state's
moral choice was an unreasonable intrusion into the sphere of personal privacy
concerning a matter that the Court deemed fundamental.10 In the more
widely publicized and controversial case of Roe v. Wade (1973), the
Court held that a woman's right to an abortion was an attribute of an
unenumerated right of privacy found in the due process clause of the Fourteenth
The persistence of judicial activism under conservative judges in the
1970s led to efforts by liberal commentators to rationalize the revival of
substantive due process jurisprudence. This reconsideration of constitutional
theory was necessitated by the political opposition to liberalism that erupted
in the late 1960s. In the legal academic community where it took place,
theoretical revision was provoked by the emergence of a theory of
constitutional interpretation known as original-intent jurisprudence. The
driving force behind it was criticism of liberal jurisprudence for its
disregard of democratic principle.
While approving the results of judicial activism, many judicial liberals
were troubled by the apparent contradiction between policy making by
nonelective judges and policy making by elected lawmakers. To justify, explain,
or otherwise resolve this contradiction, euphemistically referred to as "the
countermajoritarian difficulty," was the burden of liberal legal scholarship in
the 1970s. Proponents of original-intent jurisprudence, interjecting a genuine
conservative voice into constitutional debate for the first time since the New
Deal, viewed this effort as an attempt to evade the plain meaning and basic
normative principle of the constitutional order. This was the principle of
republican self-government under a written fundamental law that limited the
authority of government, including the power of the judiciary.
The legal historian Raoul Berger, in his seminal study Government by
Judiciary: The Transformation of the Fourteenth Amendment (1977), almost
single-handedly revised the terms of debate in constitutional law. Berger was a
former New Deal lawyer who a few years earlier had defended the institution of
judicial review against the charge of judicial usurpation.11
Judicial review, he argued, was part of the original constitutional design. In
Government by Judiciary, Berger attacked judicial-activist living
constitutionalism as a departure from the intent of the Framers and called for
a revival of the founding project of written constitutionalism.
Berger used the framing, ratification, and subsequent judicial
interpretation of the Fourteenth Amendment as a case study of what both critics
and supporters of judicial liberalism referred to as the power of the Supreme
Court to amend the Constitution. The most famous recent illustration of this de
facto judicial amending power was Brown v. Board of Education (1954), in
which the Court held that the meaning of the Fourteenth Amendment's equal
protection clause could be determined only by considering the importance of
public education in contemporary society. According to Berger, the Court thus
claimed "the power to revise the Constitution to meet present
needs."12 He rejected the idea, often asserted by judicial liberals,
that the Supreme Court was intended to act as a continuing constitutional
convention. Berger contended, on the contrary, that "a democratic system
requires adherence to constitutional limits, by courts no less than
presidents." The role assigned to the judicial branch by the authors of the
Constitution was "to police the boundaries drawn in the
Although Government by Judiciary was promptly accepted as the
bible of original-intent jurisprudence, Berger gave relatively little attention
to the question of how to define or formulate the concept of original intent
— or "originalism," as it came to be called. To Berger, trained in the
older liberalism of judicial restraint, original intent was not a problematic
concept, but an obvious, if not self-evident, inference from the fact that the
United States had a written constitution. He noted that the founders "were
deeply committed to positivism," as reflected in "their resort to written
constitutions — positive law." Positivism in turn expressed their
commitment to written limits on all power — the power of judges included
— and rejection of the idea of a higher law beyond the Constitution to
which judges and other government officials might appeal.14
Like a litany in the older judicial liberalism to which he would recall
the legal profession, Berger recounted the story of conservative judicial
activism from the 1890s to the 1930s. This was subjective, natural law
jurisprudence under the pretense of interpreting "a constitutional catchphrase"
— the due process clause of the Fourteenth Amendment. The conservative
Court's due process jurisprudence, the basis of laissez-faire
constitutionalism, disguised the judges' individual opinions and gave them
"'the sanction and prestige of a supreme fundamental law.' "15
Berger argued that the equal protection jurisprudence of the Warren Court
revived subjective, natural law judging. The Court, said Berger, believed that
only its judicial intervention could serve the cause of justice and free the
nation from the shackles of the Constitution — the Fourteenth Amendment
as written, which permitted racial segregation.16
In Berger's theory of written constitutionalism, original intent was so
logical, necessary, and inevitable as the correct method of interpreting the
Constitution that it could be taken for granted. To dwell on it or explicitly
underscore its practical value was to state the obvious. Nevertheless, it was
necessary to restate the essentials of American constitutionalism.
The fundamental problem was limited government. Berger's key point,
contrary to living constitutionalist orthodoxy, was that the Supreme Court
could not amend the Constitution. The Court's duty was to police the boundaries
in the Constitution. This was the "original intention" of the Framers, and it
was binding on the Court because, in the words of Madison, "if 'the sense in
which the Constitution was accepted and ratified by the Nation ... be not the
guide in expounding it, there can be no security for a consistent and stable
[government], more than for a faithful exercise of its powers."17
"On traditional canons of interpretation," Berger observed, "the intention of
the framers being unmistakably expressed [as he believed it was in relation to
the Fourteenth Amendment and school segregation], that intention is as good as
written into the text."18
According to Berger, constitutional interpretation was a form of
statutory interpretation in which effectuation of the drafter's intention was
the controlling principle. Quoting James Wilson, he said, "The first and
governing maxim in the interpretation of a statute is to discover the meaning
of those who made it."19 The whole point in having a written
constitution was to establish the basic meaning and understanding of the
principles, rules, forms, and procedures that were to limit and guide the
exercise of government power posited by the document. In the absence of a
commitment to adhere to the intention of the Framers, the written Constitution
was not a real constitution.
Written in the spirit of a prophet calling the nation back to its
founding principles, Berger's work had a clarifying and polarizing effect on
constitutional law and theory. Liberal scholars scorned his constitutional
fundamentalism, even as the passion of their attack betrayed fear of a
formidable opponent. Among critics of judicial activism, Berger's study of the
Fourteenth Amendment led to the articulation of a theory of original-intent
jurisprudence as an alternative to living constitutionalism.
No criticism of conservative legal scholarship is implied in the
observation that systematic elaboration of a jurisprudence of original intent
did not go beyond the position outlined in Government by Judiciary. The
strength of the originalist appeal lay in its correspondence to, if not
identity with, the written Constitution. As a theory of constitutional
interpretation and framework for judicial review, originalism was a logical
inference to be drawn from the nature of the Constitution. The essential point,
said originalists, was to insist on the textual character of the Constitution
and the fixed meaning it embodies as a fundamental law limiting government and
politics. Properly understood, constitutional interpretation seeks to elucidate
and apply the original understanding of the authoritative text. Throughout most
of American constitutional history, this understanding was readily
acknowledged, if not taken for granted, in constitutional
adjudication.20 Following Berger's attack on judicial activism,
scholars and commentators calling themselves "originalists" believed it was
necessary to spell out this theory of the Constitution as a standard of
political morality and public integrity.
The Tempting of America (1990) by Judge Robert H. Bork summarized
a decade of scholarly and political controversy over original-intent
jurisprudence. Written in the aftermath of his failed nomination to the Supreme
Court, Bork's account supplanted Raoul Berger's landmark study as the bete
noire of liberal living constitutionalists. A judicial restraint
fundamentalist, Bork as a matter of intellectual argument chose to engage
neither the deconstructionist hermeneutical theory nor the neo-Kantian moralism
that were prominent in legal liberalism in the 1980s. The problem that he
addressed was how to recover and reestablish the idea that the Constitution is
Bork stated the basic principle of originalism thus: "Either the
Constitution and statutes are law, which means that their principles are known
and control judges, or they are malleable texts that judges may rewrite to see
that particular groups or political causes win."21 According to
Bork, to say that judges are bound by the law means that they are "bound by the
only thing that can be called law, the principles of the text, whether
Constitution or statute, as generally understood at the enactment." The judge
is therefore "bound to apply the law as those who made the law wanted him
In the view of Earl M. Maltz, a leading academic theorist of the
movement, the appeal of originalism lies in a particular conception of law
requiring the use of a specific judicial reasoning process. This is the idea of
positive, written law that has an objective and real meaning. In the case of
the Constitution, real and objective meaning is discoverable as a written
source of authority by interpretation, using legal conventions analogous to
those that govern the interpretation of other authoritative documents,
especially statutes.23 The theory of originalism — the theory
of the Constitution, properly considered — holds that the framers of the
Constitution had legitimate authority to create binding legal rules. The
meaning of the Constitution was fixed in 1789 and does not evolve over time as
Agreement on the nature and character of the Constitution would obviate
the problem — in actuality a superficial one, in the view of originalists
— of how to interpret the Constitution. As expressed by Gary L. McDowell,
the basic point of the founders' constitutionalism was to establish the rule of
law under a written document of clear and common language. To conceive of a
nation's Constitution as a written document heralded a new age in political
thinking and fundamentally altered the nature and extent of how political power
was understood. Derived from and dependent on the written constitution,
political power was to be limited in a new and effective way and recognized as
legitimate only insofar as it conformed to the text that supplied the formal
ground of its existence. A permanent body of written law, the Constitution did
not include the unwritten English common law. McDowell said the founders thus
rejected the idea of an unwritten constitution as fundamental law. In America,
the fundamental law was to be the written Constitution. McDowell concluded that
in the late twentieth century, as at the time of the founding, preservation of
the literal provisions of the text Constitution was necessary to preserve the
political and civil liberty that was the end of the constitutional
As conceived by its proponents, the theory of original-intent
jurisprudence was the common-sense practical result of having a written
constitution. Essentially taken for granted since the Constitution's adoption,
the idea required explicit elaboration in order to counter the effect of
decades of judicial-activist policy making based on values derived neither from
the text of the Constitution nor the structure created by it.26
Constitutional lawyer Henry Monaghan said it was clear that the Supreme
Court in the 1960s was developing "a constitutional lex
nonscripta."27 The practical purpose of originalist criticism
therefore was to question the legitimacy of modern judicial review as a
substantive legislative activity. Monaghan observed that original intent was
not simply an expository style in opinion writing. It was a way of thinking
about constitutional meaning that followed from basic concepts that in the past
had legitimated judicial review. The fundamental premise of originalist
adjudication was that the Supreme Court was constrained by the written
Constitution, just as the other branches of government were. The authoritative
status of the written Constitution, Monaghan explained, was the incontestable
first principle of American constitutional law. The written Constitution was
the master "rule of recognition" in the legal system, that is, the rule that
determined which of the many rules that might apply to a given situation were
authoritative. That the constitutional text was binding and authoritative until
changed by the procedure of formal amendment was a self-evident historical
Original-intent jurisprudence depended on and in practical terms was
identified with textual interpretation of a written fundamental law. Yet, in
the deepest sense, the significance of originalism transcended the model or
method of linguistic analysis. It concerned the nature and tendency of
republican government. The deeper foundation in political philosophy on which
the originalist approach to constitutional interpretation rested appeared more
clearly in relation to the eruption of postmodernist linguistic and
hermeneutical theory in liberal jurisprudence in the 1980s. Referring to the
postmodernist hijacking of constitutional law in the attempt to preserve
liberal judicial activism, Earl Maltz stated that linguistic analysis was
unpersuasive because constitutional theory ultimately concerned the role of
courts in determining the powers of government and the relationship of
governmental institutions to the citizenry and to each other. In Maltz's view,
this was quintessentially a political task that made political theory the
benchmark for evaluating methods of constitutional interpretation.29
The significance of political philosophy as a normative framework for American
constitutionalism, however, was a source of controversy among conservative
The main conservative objection to judicial liberalism was that activist
judges used moral and political philosophy to deny the plain meaning of the
constitutional text. In reaction to this alleged abuse of judicial authority,
some critics argued that constitutional interpretation should abjure political
philosophy and theory. Raoul Berger and Robert Bork, the most widely known
proponents of original-intent jurisprudence, insisted that legal positivism was
the only reliable basis on which to construct a jurisprudential alternative to
unwritten living constitutionalism. Other commentators proposed an interpretive
strategy based on philosophical realism, which aimed at discovering the "real
meaning" of constitutional provisions rather than their historically validated
It was exceedingly difficult, however, to extrude political theory or
philosophy from constitutional law. To some extent, even positivists such as
Bork found it necessary to appeal to political philosophy, as when they
elevated legislative majoritarianism — the instrument and symbol of
popular sovereignty as a public philosophy — to interpretive preeminence
in constitutional adjudication.31 Conservatives who appealed to
moral realism were prepared, in their own words, to go "beyond the
Constitution" to resolve problems of constitutional interpretation. In doing so
they opened themselves to the charge of fusing law and morality, "evacuating]
the very notion of a constitution" and reducing the text Constitution to "a
fiction of prudence."32 Why not simply set the constitutional text
aside, asked Graham Walker, and try to ensure that those who exercise power are
virtuous and prudent?33 Nevertheless, despite philosophical
differences, originalists in both the positivist and moral realist camps agreed
politically in opposing judicial activist policy making based on the theory of
Although dismissed as intellectually incoherent by liberal critics,
original-intent jurisprudence had a decided impact on liberal constitutional
theory. The doctrines and agenda of liberal jurisprudence were bound to change
in any case as a result of the decline of liberalism and the ascendancy of
conservatism in national politics in the 1980s. The originalist challenge to
living constitutionalism had the effect, however, of forcing liberal theorists
to develop arguments aimed at resolving the countermajoritarian difficulty
exposed by the activism of the Warren Court.
The initial response of many legal liberals to originalist criticism was
to argue that despite appearing to be procedurally nondemocratic, judicial
policy making was democratic in purpose and effect and hence constitutionally
legitimate. Some liberals contended openly for government by judiciary.
Confident that original-intent jurisprudence had no professional or academic
standing, they denied the existence of a countermajoritarian difficulty in
constitutional law. Other liberals, responding more directly to the originalist
account of American constitutionalism, argued that the Constitution was really
a form of unwritten common law that courts necessarily revised in the course of
fulfilling their policy-making role.
The continuation of activist policy making by the Supreme Court in the
early 1970s had a polarizing effect on constitutional politics. While provoking
conservative criticism, it stimulated more candid justification of judicial
legislation on the part of liberal constitutionalists.
In a landmark article, Thomas C. Grey observed in 1975 that after a long
period of consensus, the most fundamental issue in American constitutional law
was again in dispute. This was the question whether judges, in the exercise of
judicial review, should confine themselves to determining whether laws conflict
with norms derived from the written Constitution. Could judges enforce
principles of liberty and justice when the normative content of those
principles was not found in the text of the Constitution? Grey asked. He
attempted to show historically that the judiciary possessed such authority and
that the framers of the Constitution believed that unwritten higher law
principles, not codified in the written Constitution, were binding on the
judiciary. From the outset, courts were authorized to enforce natural rights
and expound doctrines not found in the written Constitution. It was accurate,
therefore, to say that the United States had an unwritten
Grey contended that contrary to official constitutional orthodoxy, the
Supreme Court in actual practice did not decide cases by interpreting the text
of the Constitution. Although the document occasionally provided a linguistic
reference point, for the most part it was not the source of the values and
principles that judges used to reach constitutional decisions. The text
Constitution served only as a symbolic source of legitimacy for the development
and explication of shared national values. The process of elucidating the
changing meaning of basic conceptions of governmental structure and individual
natural rights, Grey concluded, gave meaning to the metaphor of the "living
Liberal jurisprudence in the late 1970s and 1980s accepted the idea,
paradoxical on its face, that interpretation of the text could be dispensed
with in constitutional decision making. The formal Constitution was not the
exclusive source of judicially enforceable constitutional law.36
This theory was called noninterpretive judicial review, or "noninterpretivism."
In an influential analysis of constitutional law, commentator John Hart Ely
recognized it as an approach to constitutional decision making supported by
many judicial liberals.
A former law clerk to Earl Warren, Ely defended the Warren Court against
the charge that its activist policy making was based on the justices'
subjective values rather than on the fundamental values of society and
principles in the Constitution. Sensitive to the emerging originalist
criticism, Ely agreed that noninterpretivist judicial review was subversive of
constitutional democracy.37 He complained, however, that
contemporary constitutional debate was dominated by a false dichotomy posing
two undesirable alternatives. "Either ... we must stick close to the thoughts
of those who wrote our Constitution's critical phrases and outlaw only those
practices they were outlawing, or there is simply no way for courts to review
legislation other than by second-guessing the legislature's value
Ely argued for a third approach to constitutional interpretation —
representation-reinforcing judicial review. This called for judicial
intervention, but intervention based on the structural-procedural value of
political representation that Ely said was integral to the Constitution.
Explicated in the Carolene Products footnote, representation-reinforcing
judicial review, according to Ely, was the operative principle used by the
Warren Court. In Ely's opinion, this approach was distinguishable from
noninterpretivist fundamental-values jurisprudence, which relied on sources
outside the constitutional document and was increasingly recognized as willful
and subjective policy making. In contrast, representation-reinforcing review
was really a type of interpretivism. Its content was "derived from the general
themes of the entire constitutional document," Ely claimed, "not from some
source entirely beyond its four corners."39 Yet, theoretically and
politically, representation-reinforcing judicial review was far removed from
the narrow, "clause-bound" interpretivism of original-intent jurisprudence.
Ely acknowledged that interpretivism had appeal because of its apparent
consistency with democratic theory. In fact, it was undemocratic, he argued,
because the written Constitution was the voice of the Framers, not the people.
A second reason for rejecting clause-bound interpretivism was that it required
judges to do what was really impossible under a written constitution, namely,
decide cases exclusively on the basis of the text. Ely reasoned that the
constitutional document "contains several provisions whose invitation to look
beyond their four corners — whose invitation, if you will, to become at
least to that extent a noninterpretivist — cannot be construed
Ely's attempt to steer a middle course between text-bound interpretivism
and text-liberated noninterpretivism was unsuccessful. Ely himself admitted
that the distinction he tried to make — between Warren Court activism
based on representation-reinforcing review and activism based on subjective,
fundamental-values review — was "too fine for popular
appreciation."41 In contrast, there was nothing subtle about his
conclusion that text-based interpretivism, or originalism, was intellectually
impossible and therefore absurd. Although conceding that the dominant mode of
noninterpretivist review, as seen in the activism of Roe v. Wade, was a
"transparent failure," Ely placed himself on the liberal side of the
In expressing reservations about noninterpretivism Ely was an
exceptional liberal scholar. The more characteristic reaction to originalist
interpretivism was to justify judicial policy making on substantive moral
grounds, rather than on the procedural basis used by Ely.43 Michael
J. Perry, for example, reviewing Raoul Berger's Government by Judiciary,
denied that the commitment of American society to majoritarian policy making
was a settled issue, as originalists assumed; it was an open question, Perry
said, along with the definition of democracy itself. If, as a result of
judicial intervention, public policy was more responsive to society's needs,
then judicial activism was democratic. The crucial point in Perry's theory of
constitutional adjudication was the moral content of government
In Perry's view the moral criteria for evaluating public policy were not
fixed but were determined by each generation in the light of its political
experience. The role of the Supreme Court was to represent society's ideals so
government policy would be more responsive to them. Judges did not merely
discern social ideals; they redefined them with greater precision, specifying
the moral content required by the ideal. Standing in a dialectical relationship
with the society, the judiciary "gives shape to morality." Courts in turn
submit to the judgment of society about the "soundness" of judicial policy
making, as indicated by the extent of public acceptance of the policy at issue.
Perry offered this decision-making model as "a rigorous process of reasoned
moral development" that promised a better political morality than would result
from static originalist interpretivism, based on a simplistic definition of
In 1980, in an article that achieved canonical status in liberal
jurisprudence, Paul Brest summarized the mainstream academic response to
originalism. With confidence and candor, Brest rejected fidelity to the text
and original understanding of the Constitution as the touchstone of
constitutional adjudication. Underscoring the central theme in
twentieth-century progressive and liberal legalism, he appealed to the idea of
a judicially fabricated unwritten constitution, unencumbered by any
Brest acknowledged the traditional appeal to the binding authority of
the text of the Constitution and noted that it took two forms. The first was
narrow originalism, consisting of text-based literalism and strict
framer-intentionalism. A second type of appeal to textual authority was
moderate originalism, which regarded key constitutional provisions as open
textured. Brest said that in either form, originalism was inherently flawed
because it rested on the false assumption that it was intellectually possible
to acquire historical knowledge of constitutional original understanding and
intent. Relying on the contextualist methodology employed by historians of
political thought, he expressed doubt that professional historians themselves
could ascertain the original intent and understanding of the author of a
political text.46 For a judge to try to discover original intent,
translating framer and ratifier intention into contemporary policy choices,
required counterfactual and imaginary projections that carried constitutional
decision making into "a fantasy world" of the interpreter's
Brest proposed "nonoriginalist adjudication" as the norm in
constitutional theory. He claimed that it, rather than any form of originalism,
was the principal source of constitutional meaning from the beginning of the
government. Whatever legitimacy the written Constitution had as fundamental
law, he said, came not from the authority of the Framers, but from the
continuing acquiescence of subsequent generations of Americans in the decisions
and practices of government institutions. Government actions constituted a
tradition of "supplementing and derogating from the text and original
understanding" of the Constitution, undermining the exclusivity of the written
document as the source of constitutional legitimacy.48
Nonoriginalism, Brest in effect argued, represented the original intent of the
makers of the Constitution.
To say that the written Constitution was not the exclusive source of
legitimacy in American government implied that the decisions and practices of
government, including the judiciary, were intrinsically constitutional and
capable of generating constitutional meaning. Brest did not expressly employ
the concept of the unwritten constitution, but the fact that the country had
such a constitution was the clear inference to be drawn from his analysis.
Brest was explicit, however, in describing the basis on which nonoriginalist
constitutional adjudication rested. It was not popular consent, as reflected in
the operation of the forms and procedures of the written Constitution.
Political and constitutional legitimacy depended, Brest reasoned, on the
competence of government institutions in fulfilling the ends of
constitutionalism or constitutional government, as seen in "the quality of our
According to Brest, history was important to theory because it showed
that adjudication was the principal method of constitutional decision making
and development. The originalist challenge made it necessary to elevate this
historical phenomenon into the correct theory of the nature of constitutional
decision making.50 This involved the decisive step of denying that
judges and other officials were bound by the text and original understanding of
the Constitution.51 Chastising the Supreme Court for its lack of
candor in discussing the method of decision making actually employed in
constitutional law, Brest urged the justices to abandon the expressions of
moderate originalism that often justified their opinions. To conceal the nature
of constitutional decision making, he concluded, was
The original-intent controversy entered a new phase in 1985 when
Attorney General Edwin Meese carried what had been largely an academic debate
into the arena of national politics. Assuming that Brest was right about the
failure of Supreme Court justices to come clean with the public, Meese provided
an opportunity, if he did not provoke it, for liberal judges to speak with
greater candor about the nature of constitutional adjudication. Justice William
J. Brennan, the most renowned liberal jurist on the Court, accepted the
attorney general's challenge. In an off-the-bench speech that attracted
national attention, Brennan transmitted the substance of Brestian
Justice Brennan did not go so far as to deny the final authority of the
text of the Constitution or the idea of original understanding. More prudent
than Brest, in a formal sense he accepted the constitutional document as the
ground or framework of constitutional decision making. In reality, however, his
interpretive theory dissolved the text into a warrant for judicial policy
making by denying that it had fixed meaning and regulatory force.
According to Justice Brennan, interpretation of the Constitution as a
written text was concerned primarily with two things: aspirations and
fundamental principles. The Constitution, Brennan declared, "embodies the
aspiration to social justice, brotherhood, and human dignity that brought this
nation into being." As a result, the United States was committed to becoming a
nation "where the dignity and rights of all persons were equal before all
authority." The Constitution as a text also contained fundamental principles.
Brennan asserted that the path of constitutional legitimacy lay in fidelity to
fundamental principles and aspirations rather than to the intentions of the
Framers, as the theory of originalism contended. In strong language, Brennan
said that original-intent jurisprudence was a fraudulent and facile historicism
that served as a pretext for denying claims of constitutional right.
Fidelity to the text qua fundamental principles did not, in Brennan's
view, limit judicial decision making. Acceptance of constitutional principles
did not bind judges, or later generations of Americans, to the precise contours
that the principles assumed in the Framers' historical context, which were
bound to become anachronistic. The genius of the text, said Brennan, lay in the
adaptability of its content — the aspirations and principles it projected
into the future to cope with current problems and needs. Constitutional
adaptability took the form, therefore, of substantive value choices by which
each generation of Americans could overrule or add to the principles adopted by
Although the people could amend the Constitution under Article V,
Brennan said the great effort required suggested as a practical alternative the
method by which fundamental values were chosen by the judiciary on behalf of
the people. Judicial interpretation of principles and aspirations in the text
must therefore be defended as a way of remaining faithful to the content of the
Constitution. In fact, it was the duty of Supreme Court judges, Brennan
explained, to seek out "the community's interpretation of the Constitutional
text," lest the document fall captive to the anachronistic views of earlier
generations. In performing this role, judges read the Constitution in the only
way they could: as twentieth-century Americans for whom the ultimate question
was: "What do the words of the text mean in our time?"53
Justice Brennan's skillful summary of nonoriginalist jurisprudence set
the stage for the dramatic confrontation that occurred when Judge Robert H.
Bork was nominated for appointment to the Supreme Court in 1987. Bork believed
the main issue in the Senate nomination hearing was the proper philosophy of
constitutional interpretation and the role of the judiciary in a
democracy.54 He held that judges should apply the laws of the
legislature and interpret the Constitution, not make laws themselves and amend
the Constitution. Bork's liberal critics viewed originalism as a judicial
philosophy that denied the legitimacy of changing constitutional meanings and
rejected the idea of a living constitution.55 Moreover, they
attacked Bork as hostile to civil rights and civil liberties because he defined
rights narrowly, either as enumerated in the Constitution or as intended by the
Bork's nomination implicitly raised the question of the role of the
executive and legislative branches in constitutional interpretation. The
Senate's decision to focus on Bork's political ideology, rather than his
professional legal qualifications, indicated the desire of lawmakers to
influence the development of constitutional doctrine. Democratic opponents were
determined to preserve the body of liberal jurisprudence that Bork,
notwithstanding his avowed support of strict construction and judicial
restraint, was perceived as threatening. In a broad sense, therefore, the Bork
nomination served as a referendum on liberal jurisprudence as a constitutional
philosophy and judicial activism as the proper theory of judicial review.
Bork later said that control of the legal culture was at issue in the
nomination controversy, as part of a larger struggle for control of American
culture.57 In his view, "The battle was ultimately about whether
intellectual class values, which are far more egalitarian and socially
permissive, were to continue to be enacted into law by the Supreme
Court."58 Although using different rhetoric, Bork's opponents
agreed. Led by Senator Edward Kennedy, who treated the controversy as an
opportunity to redeem his political reputation, they engaged in a desperate
battle to preserve the political culture and programs of statist
Bork was rejected by the Senate in a 58-42 vote. Constitutional
observers viewed the outcome as a vindication of the judicial liberalism that
Bork so strenuously opposed. Conservative scholar Joseph D. Grano believed that
the rejection of Bork reflected and brought to practical fruition the doctrine
of constitutional indeterminacy that left judges free to give the text of the
Constitution any meaning they chose.60 At least in the short term,
the liberal jurisprudence that was the object of originalist criticism would
remain good law.61 More broadly, liberal commentators interpreted
the outcome of the nomination controversy as a confirmation of Justice
Brennan's view of the Supreme Court as a policy-making institution authorized
by the Constitution to make fundamental value choices for the American
In liberal opinion, Bork's rejection signified repudiation of
original-intent jurisprudence, especially the claim that judicial activism was
undemocratic. As a result of the Senate vote, declared Erwin Chemerinsky, it
would be more clearly understood by the public at large that democracy did not
depend mainly on the forms and procedures of majority rule, but on substantive
values identified and defended by judges. Furthermore, liberal judicial
activism was not a radical doctrine, as originalists charged, but in fact
occupied a constitutional middle ground. The modern activist Court stood
between legislative supremacy that threatened to overrule fundamental values
embodied in the Constitution and the rule of a static and lifeless Constitution
incapable of changing and evolving by interpretation.62 Another
liberal scholar stated that in view of the repudiation of Borkian originalism,
the so-called countermajoritarian difficulty was no longer an issue. If it was
not obvious before, there could now be no mistaking the fact that political
ideology and moral philosophy, not theories about judicial methodology,
controlled constitutional interpretation.63 This was not a cause for
alarm about the state of American constitutionalism, as originalists had long
warned. Bork's defeat showed that the public knew and approved of the
discretionary governing role of unelected judges.64
From the standpoint of constitutional history, perhaps the most
important result of the Bork controversy was to politicize further the Supreme
Court appointment process and expand the role of the Senate in determining the
direction of constitutional interpretation. The desire of the legislative
branch to influence constitutional law through nomination hearings was, if
possible, even more evident a few years later, when Clarence Thomas, a black
conservative Republican, was appointed to the Court. Even when less
controversial appointments were made in the 1990s, the politicization of the
nomination process was apparent. In the area of constitutional theory and
judicial review, however, the defeat of Judge Bork appeared to have a less
decisive impact than was thought at the time.
Contrary to liberal expectation, Bork's rejection did not undermine the
appeal of original-intent jurisprudence or negate its influence on
constitutional interpretation. In the 1990s Justice Antonin Scalia emerged as
the outstanding exponent of originalist jurisprudence on the Supreme Court and
was credited by judicial liberals with redefining the mainstream of
constitutional discourse.65 In the aftermath of the Bork
controversy, moreover, many supporters of liberal constitutionalism were not
content to reassert the judicial activist-fundamental values orthodoxy of
Justice Brennan. Forced to come to grips with originalist fundamentalism,
liberal theorists were obliged to take account of the Constitution's textuality
and documentary character. They tried to demonstrate the fidelity of liberal
jurisprudence to the Constitution as fundamental law. Most important, while
avoiding, in their view, overt repudiation of the commitment to a written
Constitution, some liberal commentators redefined the meaning of the
constitutional amendment process in a way that makes the idea of the unwritten
constitution the theoretical ground of the American polity.
In describing these developments in constitutional theory, it is
important to note that the attachment to an activist judiciary that became
liberal orthodoxy in the post-New Deal period has by no means been abandoned.
In American law schools there seems to be an inexhaustible supply of partisans
of judicial governance. Recently there has been an attempt to justify rule by
courts under the concept of "public reason."66 One theorist of
reasoned adjudication explains it as a process in which the judge moves ever
farther from the written Constitution, adding to the text a variety of
materials including "principles, policies, theories, distinctions, syntheses,
vocabulary, and historical evidence." As a form of constitutional
interpretation, adjudication in this view is not required to conform to an
independently existing rule of law. On the contrary, adjudication, based on and
determined by moral and political considerations, is the rule of law.
Adjudication is not a bulwark against the notion of an evolving perfect
Constitution, as originalism holds, but is the means by which such a
constitution comes into existence.67
Lawrence G. Sager offers a similar account of an "incorrigible
Constitution" that is systematically opposed to popular self-government. In
this view, constitutional government is "judgment-driven," meaning that it
strives toward standards of justice that differ from the "preferences" that
drive popular decision making. A society committed to "the ongoing project of
constitutional justice," declares Sager, "is well served by a robust judiciary
which sees its role as that of an active participant in that project." Courts
are an asset in securing the ends of a just society because the judicial
process is "an institutional projection of the method of reflective
equilibrium," the philosophical method that is best suited for reasoning about
normative matters.68 In the view of still another theorist of
adjudication, "the actual language of the Constitution serves as little more
than a potential obstacle to judicial decisions reached independently by
considerations of pure political philosophy." Constitutional adjudication, in
other words, rests on "a judge's own normative beliefs about what the
Constitution ideally ought to say."69
The writings of some commentators substantiate the assertion that
constitutional theory is "a veiled apology for rule by a liberal
oligarchy."70 Yet this approach departs too radically from the
constitutional tradition to gain acceptance among other liberal critics of
originalism. A different method of preserving the post-New Deal liberal state
claims, like originalist jurisprudence itself, to return to the political
science of the founding. Based on the outpouring of scholarship on republican
ideology in the fields of history and political science, neorepublican theory
proposes to reconceptualize the American Constitution as an unwritten
constitution. This constitution is made anew episodically through political
actions of the people as the constituent power, which, though taken outside the
formal Article V amending process, revise the legally binding Constitution. The
theory of republican amendment expresses in the 1990s the attempt, evident in
American legal theory since the late nineteenth century, of reform-minded
critics to transform written constitutionalism into nonformal unwritten
The writings of Bruce Ackerman, a political scientist, are a principal
source of neorepublican constitutionalism. Ackerman describes the American
constitutional order as a "dualist democracy" consisting of two types of
political action: top-level (or higher law) constitution making and lower-level
partisan political competition that includes statutory policy making. At the
founding of the nation and at critical junctures thereafter, designated as
"constitutional moments," the people of the United States have made, revised,
transformed, or reconstructed their fundamental law. The theory, which is also
a historical account, holds that in the intervals between constitutional
moments the people attend to their own private affairs, while government
officials and politicians manage the conduct of ordinary politics, preserving
fundamental principles within the established constitutional framework.
Among many salient issues implicated in Ackerman's thesis, the most
important concerns the nature of the Constitution. Unlike orthodox judicial
liberals, Ackerman approaches this question not through the institution of
judicial review, but through the problem of constitutional amendment. He
observes that although there have been substantive changes in the original
structure of the Constitution, the American people have not altered the process
of constitutional revision.71 Ackerman regards this as a defect in
the constitutional system that his theory is intended to rectify.
Ackerman attempts to show through a historical narrative how on two
epochal occasions — Reconstruction and the New Deal — American
citizens engaged in self-conscious acts of constitutional creation. In these
moments of higher-law constitution making they followed the model of
constitutional change provided by the Federalist founders, who in the
Constitutional Convention undertook a "solemn and authoritative act" that
changed the established form of government. The making of the Constitution,
Ackerman states, was one of the "great and extraordinary occasions," requiring
application of the nation's revolutionary founding principles, for which the
founders believed a constitutional road should always be open to the
people.72 Although not conforming to the legal rules for amending
the existing constitution, the Articles of Confederation, this act of
revolutionary reform was legitimate.73
What the founding Federalists did, Ackerman says, later generations of
citizens did and can still do. They may change the Constitution through
political action outside the requirements, forms, and structure of Article V of
the Constitution. When they do so by means of legislative statutes and
executive orders and proclamations, their amending action is as authoritative
and legitimate as if done under the forms of Article V. According to Ackerman,
this result obtains ultimately because "the Constitution ... is an evolving
historical practice, constituted by generations of Americans as they mobilized,
argued, resolved their ongoing disputes over the nation's identity and
Ackerman's project is the most ambitious in a long line of
constitutional constructions that deny the primacy and ultimate authority of
the written Constitution and seek to establish for the United States an
unwritten constitution. It is not coincidental that the most serious previous
attempt to establish unwritten constitutionalism in America occurred during the
New Deal, the constitutional moment from which Ackerman takes his ideological
and theoretical bearings. Ackerman admits that his practical purpose is to
preserve the fruits of the New Deal constitutional revolution. The New Deal
created the structure of the modern republic, but a price was paid, he says,
for the informality with which New Deal liberals revised the Constitution. That
price was the long-range impermanence and instability of the New Deal as a
constitutional amendment, compared to constitutional revisions carried out
under the Article V amendment process.75
While much of the New Deal constitution remains in the living
Constitution of the 1990s, Ackerman laments that "the remorseless logic of
generational passage is visible everywhere."76 Evidence of
constitutional erosion can be seen, for example, in U.S. v. Lopez
(1995), in which, for the first time since the 1930s, the Supreme Court struck
down an exercise of the federal police power under the commerce clause. Such
tendencies in constitutional law lead Ackerman to assert that the main issue in
contemporary constitutional law is the basis on which the continuing
controversy over the reception of the New Deal should proceed. Will this issue
be settled, Ackerman asks, on a "formalist understanding that the only
constitutional achievements the present generation is bound to notice are those
monumentalized through the processes of Article V?"77 Or will a more
realistic understanding prevail, based on the notion of an unwritten
constitution, making it possible to see that the Constitution was in fact
amended in the 1930s. The issue, in other words, is the nature of
constitutional change and the Constitution itself.
Ackerman claims that his theory of generational constitutional
transformation is not simply an attempt to protect the New Deal and liberal
political philosophy against historical change. Yet his warning that refusal to
accept the theory would be an "act of betrayal," inflicting "a terrible
blindness" on the country, suggests that more is at stake in contemporary
constitutional debate than the alleged desire of Ackerman and other
neorepublican theorists to preserve popular self-government.78
Neorepublican constitutionalism is also represented in the theory of
constitutional amendment advanced by Sanford Levinson.79 In an
earlier work, focusing on the uncertainty that exists in constitutional law
concerning what counts as the Constitution, Levinson contemplated the "death of
constitutionalism." Ambiguity about what the Constitution is, he wrote, was the
result of conflicting traditions that defined it as the written text and also
as the assumptions and practices of the American political
tradition.80 Recently, Levinson has discovered in Article V of the
Constitution a text that authorizes the kind of political inventiveness that he
believes can revive and sustain American constitutionalism.
Levinson's theory of amendment concedes that Article V of the
Constitution expresses the Framers' thinking about how to amend the fundamental
law when imperfections in it become apparent. Levinson contends, however, that
the formal process stipulated in the text is not the only way to amend the
Constitution. To reach this conclusion he defines an amendment as "a legal
invention not immanent within or derivable from the existing body of accepted
legal materials."81 It is to be distinguished from "a numbered
textual addition" to the written Constitution.82 Throughout most of
American constitutional history, Levinson says, the Article V process has been
used to produce textual additions, not real constitutional amendments. An
Article V outcome should not be referred to as an amendment, he contends,
unless it effects a genuine change in the governmental order. To understand the
practice of American constitutionalism, therefore, it is necessary to recognize
— and assimilate in a "sophisticated theory" — "the extent to which
the Constitution has been amended — been the subject of political
inventiveness — by means other than the addition of explicit
Levinson observes that despite constant conceptual revision resulting
from " 'deconstructive' analysis," in political life there are "basic notions
that we simply seem unable to leave behind."84 The idea of
"constitutional amendment" as something different from ordinary interpretation
is one such notion; it continues to have great rhetorical force.85
It is therefore necessary, says Levinson, "to discern the heretofore hidden
alternative to Article V that fully legitimates" political action that changes
the system of government in basic ways.86 Levinson intends his
theory to illuminate "one of the central mysteries of our operative
constitutional practice," namely, "the radical transformation through time of
central legal doctrines" without the necessity of formal
What Levinson treats as "mystery" receives a rational explanation in the
theory of constitutionalism advanced by Stephen M. Griffin, a political
scientist writing in the constitutional realist tradition. Considered
historically, the Constitution is both the fundamental law of a republican
polity and the governing instrument of a sovereign nation-state. As such it
requires application and construction in the distinct, though not entirely
separate, modalities of law and politics. Griffin offers a
descriptive-explanatory account that confirms this basic feature of the
American constitutional order. He then transmutes the historical phenomenon of
bimodal constitutional construction into a normative standard on the basis of
which he posits an unwritten constitution of institutional and political
In Griffin's view, the key to understanding American constitutionalism
is the concept of constitutional change. Only through a consideration of how
the Constitution has changed, he argues, can one observe what constitutionalism
is and arrive at a valid definition of the Constitution itself. The decisive
fact guiding Griffin's descriptive-explanatory account is the near consensus
among constitutional scholars that fundamental constitutional changes have
occurred without benefit or authorization of the Article V amendment process.
This fact must mean, Griffin argues, that the theory of the Framers —
that the Constitution is a rule of fundamental law controlling the state and
alterable only through the procedure prescribed in Article V — is not
valid. Historically undeniable constitutional change means further that the law
versus politics distinction, on which the founders' theory of constitutionalism
depends, breaks down. The conclusion follows that the Constitution is
"primarily a political institution." More precisely, it is "political practice"
or "text-based institutional practice."88 An even more important
conclusion can be reached: rule-of-law constitutionalism, which supplies the
rationale of Article V as the means of constitutional change intended by the
founders, is not valid. The founding project of written constitutionalism
fails, Griffin argues, because it breeds reverence for the text Constitution
that prevents rational constitutional reform from occurring.89
A partisan of the regulatory-welfare state, Griffin sees that the New
Deal regime lacks the permanence that enactment by formal constitutional
amendment might have provided. Assuming the persistence of written
constitutionalism, the only way to protect the New Deal state against
obliteration is to redefine the concept of constitutional amendment. More than
other liberal theorists, however, Griffin seems to support the idea of the
unwritten constitution as the normative basis of American government on
intrinsic theoretical grounds. He implies that a constitution of text-based
institutional practice, in which the political branches determine their own
powers and departmental interactions determine the meaning of the Constitution,
offers the promise of good government.90 Nevertheless, his purpose
is primarily critical. Seeking to disestablish the normative appeal of written
constitutionalism, Griffin rejects the distinction between constitutional law
and ordinary politics.91 The nature of the constitutional document
is accordingly altered. No longer constitutive of fundamental principles, it
becomes — and has been from the outset, as Griffin sees it — a
pretext for expedient political action and a symbol of civil-religious
nationalism and patriotic sentimentalism.92 In Griffin's view these
habits and practices do not contribute to good government.
According to Griffin, reconceptualization of constitutional change in
political-institutional terms is not incompatible with the traditional
textual-documentary definition of the Constitution.93 Unlike
Ackerman and other proponents of the new amendment theory, Griffin denies that
constitutional change as conceived of in his descriptive-explanatory account
has legal meaning and effect equivalent to formal amendment under Article
V.94 His claim is that "norms not in the text are functionally
equivalent to norms in the text."95 From the standpoint of the
founders' constitutionalism, however, this is an unacceptable and illegitimate
claim. The point of having a written constitution was to identify the
legitimate and authoritative norms of the political community. Norms not in the
text are not constitutional norms. The claim of functional equivalency for
norms not in the constitutional text ultimately undermines the authority of the
Griffin concludes that rule-of-law constitutionalism is self-defeating.
Legally construed constitutional principles enforced by judges, he states, are
incapable of controlling government officials, whose actions are driven by
partisanship, ideology, and political expediency. The founders' constitutional
theory may have been compatible with the eighteenth-century ideal of limited
government, but it is not viable in the context of the twentieth-century
activist state.96 To cling to the constitutionalism of the founding
may prevent structural reforms necessary for coping with policy challenges of
the twenty-first century.97 If reform is stifled and American
constitutionalism cannot be renewed through theory, Griffin says with scholarly
resignation, "then we should be candid that we are abandoning constitutionalism
as a meaningful political ideal."98
If neorepublican amendment theorists emphasize the political dimension
of the constitutional tradition, other critics of written constitutionalism
draw on its legal and juridical strand. Unwilling to surrender the aspiration
to judicial governance, they seek to transform constitutional law into a type
of common law constitutionalism that dispenses with the text as a limitation on
government, although not for symbolic and rhetorical purposes. Like the new
amendment theorists, common law constitutionalists propose to use the cultural
authority of the text Constitution to legitimize the existence of an unwritten
constitution in which judges and other government officials create
constitutional meaning and norms.
Consideration of the Constitution in relation to the common law raises
complex jurisprudential issues beyond the scope of this essay. For present
purposes it is sufficient to say that the written Constitution as an embodiment
of fundamental principles and prescriptive rules for government differed in
essential respects from the English constitutional system based on unwritten
common law. The authoritative textuality of the written Constitution,
rationalized and applied through a deductive interpretive methodology,
distinguished it from the customary, evolutionary, and inductive character of
common law constitutionalism.
This is not to deny the possibility of coexistence and reciprocal
recognition between text-based constitutionalism and unwritten, common law
constitutionalism." Judges in both legal systems were understood to discover
law, rather than make it in a legislative manner. Moreover, the functional
legalization of the Constitution that can be said to have occurred with the
emergence of judicial review and the development of constitutional law caused
constitutional adjudication to resemble common law adjudication.100
In the twentieth century the elaboration of decisional rules not obviously
deduced from the text of the Constitution — as in civil liberties,
criminal procedure, and commercial regulation — could plausibly be viewed
as a constitutional common law.101 In the 1970s, it occurred to some
scholars that the idea of the Constitution as the source of common law
adjudication might bridge the gap between advocates of judicial activism and
judicial restraint.102 There was a risk, however, that activist
judges, claiming to discover fundamental values in substantive constitutional
guarantees, might be encouraged to create a body of federal law unrelated to
In the 1990s common law constitutionalism appealed to judicial liberals
who viewed original intent jurisprudence as a threat to the existing political
order. The model of common law judging appeared as a moderate approach capable
of resolving constitutional disputes that could not be settled by the deductive
interpretation of written constitutionalism because of the uncertainty and
opacity of the constitutional text.104 While recognizing the
relevance of constitutional text, structure, history, and tradition in settling
constitutional disputes, common law judging permitted courts to look outside
the written Constitution in order to interpret it and speak in its
name.105 In contrast to the judicial governance asserted by
theorists of reasoned adjudication, the common law model, according to Cass R.
Sunstein, called for a more limited judicial role in constitutional democracy.
Using the common law tools of analogical reasoning and stare decisis, judges
were seen to apply constitutional values consistent with the commitment to
deliberative democracy that forms the basis of constitutional
law.106 Yet common law judging could revise constitutional meaning
and understanding when social and political change required
Common law constitutionalism refers in general to gradual, interpretive,
and informal vehicles of change that since the New Deal are seen as
characterizing American constitutional life.108 Because it is more
informal and more easily corrected as a method of constitutional revision,
common law judging is considered preferable to the Article V amendment process.
According to Sunstein, the formal amendment procedure elicits populist
enthusiasm for short-sighted constitutional revision that is "essentially
childish," as well as dangerous to the principle of deliberative
The persistence of original-intent jurisprudence after the Bork
nomination fight led liberal scholars to adopt a "big-tent" strategy of
constitutional argumentation. Although differing in the emphasis they placed on
the political and juridical strands of the constitutional tradition, they
united in opposing originalist jurisprudence for the two "mortal sins of
constitutional interpretation" it was guilty of. These sins are legal formalism
and philosophic or normative foundationalism.110 Yet liberal
constitutional theorists did not succeed in dissociating themselves entirely
from the constitutionalism of the founding. The new amendment theorists are
unable or choose not to abandon the idea of "amendment." The common law
constitutionalists feel obliged to engage the idea of constitutional fidelity,
which since the publication of Raoul Berger's Government by Judiciary
has been identified with the theory of originalism.
Liberal concern to break the monopoly on constitutional fidelity
associated with originalist jurisprudence was a principal motive in organizing
the 1997 symposium, "Fidelity in Constitutional Theory."111
According to liberal critics, conservatives define constitutional fidelity
narrowly to mean either adherence to the text as a body of legal rules or to
specific understandings held by the framers and ratifiers of the Constitution.
Liberals, in contrast, hold to a broad conception of fidelity in the form
either of historical synthesis, as in Ackerman's descriptive-normative theory
of constitutional amendment, or of constitutional interpretation based on moral
and political philosophy. The jurisprudence of Ronald Dworkin illustrates the
philosophical approach to constitutional fidelity.
Dworkin seeks to confound originalists by claiming that fidelity to the
Constitution requires precisely what they most object to: reliance on moral
philosophy.112 According to Dworkin, fidelity takes into account the
written text and structure of the Constitution, as well as past constitutional
practice. Ultimately, however, constitutional fidelity requires broad judicial
responsibility to hold legislation to moral standards. Such standards are
abstract and are necessarily expressed in abstract constitutional
language.113 According to Dworkin, the Framers made a constitution
"out of abstract moral principles, not coded references to their own opinions
... about the best way to apply those principles."114 Therefore,
although it is proper to follow the Framers' "semantic intentions" in pursuing
questions of moral judgment, such as the meaning of cruel and unusual
punishment in the Eighth Amendment, Dworkin says it is wrong to consult the
Framers' political intentions, that is, their assumptions and expectations
about how a constitutional provision should be applied and
enforced.115 Constitutional fidelity thus insists on "fresh moral
judgments" about issues that divide citizens, rendered by judges who read the
Constitution "as a charter of principle" and who in individual cases give "the
best interpretation of an abstract principle of constitutional
Neorepublican amendment theory and common law constitutionalism have
been described as broad or "soft" originalism aimed at beating the originalists
at their own game. According to one of the organizers of the 1997 fidelity
symposium, it is a strategy dictated by the belief that the only hope of
persuading Justice Antonin Scalia to accept liberal interpretations of the
Constitution is to make originalist arguments.117 If that is true,
then Justice Scalia may have more effect on liberal opponents of originalism
than on judicial colleagues, in relation to whom he appears to have no interest
in coalition building. Despite a defiantly nonpolitical posture, however,
Justice Scalia emerged as the leading advocate of originalist jurisprudence in
In the 1990s, original-intent jurisprudence earned a surprising measure
of intellectual respect if, as appears to be the case, liberal constitutional
theory was revised to take into account originalist claims. At the least,
originalism was recognized as having rhetorical and symbolic
value.118 In constitutional politics it became possible, and perhaps
strategically necessary, to distinguish between forms or variations of
originalism.119 In this theoretical context, Justice Scalia, in an
academic lecture in 1996, presented a major statement of originalist
jurisprudence that was text-based rather than intent-seeking in the broader
historical sense implied in Raoul Berger's theory of constitutional
The central theme in Scalia's analysis of the field of public law was
the theory of the living constitution, which he believed was still dominant in
the judicial and academic legal community.121 He saw legal
liberalism as the functional equivalent of common law judging. In noting that
constitutional law is not mainly about the Constitution, he said that it is
about previous cases that are adhered to as precedent or distinguished and
evaded as not on point, in the manner of common law adjudication.122
In substantive terms, constitutional law under the doctrine of living
constitutionalism amounts to judges deciding cases on the basis of their
personal, subjective view of what justice or good public policy
requires.123 Properly understood, neither the Constitution nor
constitutional law warrants description as common law, defined as law developed
by judges.124 Yet in contemporary living constitutionalism the
Constitution is treated as common law, and judicial policy making is protected
and privileged by identification with the written Constitution. This symbolic
association enables federal judges to trump policy making by legislative
statute in an antidemocratic manner. For this reason Justice Scalia opposed
common law, or living constitutionalism.125
In place of subjective common law judging, Scalia urged text-based
originalism, or textualism. Every issue of law dealt with in federal courts, he
said, involves interpretation of text, in the form of statute, administrative
regulation, or constitutional clause or provision. In both statutory and
constitutional interpretation, judges look for the "objectified" intent of the
lawgiver in the text. This objectified textual intent, rather than what the
original drafters intended, is "the original meaning of the text," according to
Justice Scalia.126 He concluded that in the American constitutional
tradition the text is the law and must be observed. In democratic government,
moreover, the popularly elected legislature writes the laws.
Justice Scalia offers little comment on the philosophy or art of
interpreting texts. A text should be construed neither "strictly" nor
"leniently," he says. Rather, "it should be construed reasonably, to contain
all that it fairly means."127 Elaborating, he notes that in textual
interpretation, context is everything. The context of the Constitution tells
the interpreter not to expect great detail, giving words and phrases an
expansive rather than narrow interpretation, though not an interpretation that
the language will not bear.128 Scalia seems to be saying that if
judges and lawyers can be brought to understand the fundamental character or
nature of the Constitution, the problem of interpretation will take care of
itself. The real problem is the "great divide" in constitutional interpretation
between original meaning and current meaning.129
The current-meaning, or living-constitutionalist, school claims to
provide the flexibility in public policy required by a changing society.
Justice Scalia contends, however, that most of the "growing" cultivated by
living constitutionalists has imposed greater restraints on democratic
government. He states that in repudiating democratic government, devotees of
the living constitution in reality seek to prevent, rather than facilitate,
social change. At bottom, the doctrine of the living constitution is vacuous
because there can be no agreement on the guiding principle of the
constitutional evolution that the doctrine posits. Scalia asserts that
evolutionism is simply not a practicable constitutional philosophy. Appealing
to the written constitutionalism of the founding, he says that a constitution
has an antievolutionary purpose. Although there can be disagreement over how
the original meaning of the Constitution applies to a present problem,
originalism can give many clear-cut answers. Living constitutionalism, however,
makes every question an open question.130
The English scholar S. E. Finer observes that once the constitution of a
country is written, thereafter it is always written. The constitution may be
amended or an entirely new constitution adopted, but reversion to an unwritten
or customary constitution does not occur.131 Nevertheless, in the
history of written constitutionalism, as Finer notes, a constitutional text may
become a purely nominal or fašade constitution.132 Since the
American Revolution, constitutions in the United States have assumed written,
documentary form. In the theory of American constitutionalism, moreover, the
forms of the Constitution are purposive. Properly understood, they are not
simply a means to the end, but are united with the ends of the
Constitution.133 The form of the Constitution is intended to have
substantive influence and effect. This is what is meant in saying that the
Constitution has intrinsic, not merely instrumental, value. Constitutional
government and written constitutionalism as the American project rest on the
idea that law is an effort to constrain government with words inscribed in a
text. It follows that when a legal text is made or becomes indeterminate, it
serves as an invitation to exercise power by determining what the text shall
Liberal judicial interventionism as practiced by Chief Justice Warren
and Justice Brennan, for all that it seemed to reach beyond the Constitution in
seeking just outcomes of constitutional disputes, never simply dispensed with
the text of the Constitution. In contrast, contemporary advocates of common law
constitutionalism more readily and with greater candor admit to going outside
the text of the Constitution in search of philosophical and historical grounds
for constitutional decision making. To the extent that the constitutional text
is retained in common-law constitutional theory, the retention is vestigial and
Despite an observable trend in this direction, it is doubtful that in
the foreseeable future the constitutional text will be overtly repudiated or
expunged from the language of American government and politics. It is not
necessary for that to happen, however, in order to render the Constitution
otiose, ineffectual, and of no account concerning the ends and purposes for
which it was established. To be sure, the constitutional text has symbolic,
rhetorical, and civil-religious significance that encourages, if it does not
require, reference to it in political and legal discourse. There is a world of
difference, however, between reference to the Constitution that describes and
explains how acts of government conform to — hence, preserve and promote
— principles, goods, and values embodied in the text; and constitutional
allusion that treats the text as a justification, if not merely a pretext, for
government actions based on partisan and ideological considerations unrelated
to ends and principles embodied in the text. It is of course true that value
judgments are involved in distinguishing between these different ways of
recognizing or taking account of the Constitution. If values are not wholly
subjective, however, then the judgment required in evaluating constitutionalism
and constitutional government should not be categorically dismissed as personal
When the Constitution functions as a rhetorical pretext, the restraint
on political power that is the principal reason for adopting a normative
fundamental law is rendered illusory. Again, it is difficult to avoid the
historical conclusion that in a practical sense the point of having a written
constitution is to limit government. This is not to deny the obvious truth that
a constitution grants, confers, or delegates power. Yet in the granting of
power the constitution stipulates forms, procedures, and objects that define
and limit governmental power. Limited government thus constitutes the logic,
rationale, and end of written constitutionalism, if not the idea of
Constitutional controversy in the United States still takes the form,
ordinarily, of asking whether the Constitution permits, prohibits, or requires
a particular act or policy of government that has been or may be called into
question. In the deepest sense, however, the crisis that almost all
commentators agree exists in contemporary constitutional law reflects
uncertainty about the nature of the American Constitution. In this crisis the
substantive issue goes beyond the role of the judiciary and whether judicial
activism or judicial restraint is preferable. The real issue is the
constitution of the American people. In essence, the controversy concerns the
ends, principles, values, and institutions by which the people of the United
States exist and govern themselves as a political community. With reference to
the subject matter and specific materials considered in this book, the crisis
concerns the relationship between the text of the U.S. Constitution and the
nation's constitutive principles, institutions, and values.
These questions engage scholars.136 They are of preeminent
concern, however, to citizens and government officials, who are required to
deal with constitutional controversy and have a practical interest in knowing
what the Constitution is. Judges are by no means the only government officials
who make constitutional decisions. Nevertheless, preponderant authority to
decide what the Constitution means has been acquired by the judicial branch or
conceded to it by politically minded lawmakers and executive officers. This
circumstance makes it pertinent to consider what justices of the Supreme Court
have said in recent years about the nature of the Constitution.
The constitutional jurisprudence of the Supreme Court rests on the
assumption that decisions in this area of public law are based on the
Constitution. Whatever the Court offers as the ground of decision in a
particular case logically can be considered the Constitution, or a part of it.
It comes as no surprise to discover, as even a small sampling of cases shows,
that the justices disagree about what the Constitution is. More precisely,
their opinions differ over what reference to the Constitution signifies and
comprehends in political and legal discourse.
The justices frequently state that in constitutional cases sound
adjudicative method requires consideration of the text, structure, principles,
and history of the Constitution, as well as prior constitutional decisions of
the Supreme Court and the federal judiciary. In practice, however, the
political import of many cases, in addition to the adversarial nature of the
litigation and adjudication process, requires the justices to select as
decisive one feature of what to an outside observer might be described as an
eclectic or pluralistic constitutional tradition, signified or represented in
the written Constitution.
In U.S. v. Lopez (1995), for example, Chief Justice Rehnquist
wrote a majority opinion striking down an act of Congress, purportedly based on
the commerce clause of the Constitution, which prohibited possession of
firearms in school zones. Beginning with what he regarded as "first principles"
concerning the nature of the federal government as a government of enumerated
powers, Rehnquist offered a text-based explanation of the constitutional
impropriety of the congressional statute. He concluded that the possession of a
gun in a local school zone was in no sense an economic activity affecting any
sort of interstate commerce.137 To uphold the act as constitutional,
he reasoned, "would bid fair to convert congressional authority under the
Commerce Clause to a general police power of the sort retained by the States."
In Rehnquist's interpretive method, however, the constitutional text,
enumerating specific legislative powers, embodied and signified a larger,
abstract principle. This was the principle of divided sovereignty between the
states and the federal government. To approve the act of Congress in question,
he said, would be to conclude that there could never be a distinction between
what is truly national and what is truly local.138
In Seminole Tribe of Florida v. Florida (1996), Chief Justice
Rehnquist wrote an opinion that rested on a nontextualist foundation. In this
case the Court held that the Eleventh Amendment, barring lawsuits against
states by citizens of another state or a foreign state, prevents congressional
authorization of suits by private parties, even when Congress acts under the
exclusive power, conferred on it by the text of the commerce clause, to
regulate commerce with the Indian tribes. Rehnquist said the decision was based
on "the background principle of state sovereign immunity embodied in the
Eleventh Amendment."139 Viewed in this light, Rehnquist observed,
the Eleventh Amendment prevents suits by private parties against unconsenting
states even when Congress has exclusive authority in an area.140
In a dissenting opinion, Justice Souter accused the chief justice of
importing the English common law into the Constitution, against the intention
of the Framers. The common law was not received into federal constitutional law
and cannot be considered an enforceable background principle, declared Justice
Souter.141 The Framers opposed transforming common law into
constitutional law because they feared the exercise of judicial power over the
substantive policy that common law jurisdiction conferred on
courts.142 Souter likened the majority decision to the judicial
activist jurisprudence of the era of Lochner v. New York (1905), in
which the Court subordinated the text of the Constitution to "judicially
discoverable principles unfettered to any written provision."143
In Printz v. U.S. (1997), Justice Scalia wrote the majority
opinion holding unconstitutional a provision in an act of Congress that
utilized local law enforcement officers in a federal regulatory gun control
policy. Scalia, noted for his textualist-originalist approach to constitutional
interpretation, said that in this case no constitutional text spoke to the
precise question at issue.144 The Court must therefore seek the
basis for its decision in historical understanding and practice, the structure
of the Constitution, and the jurisprudence of the Supreme Court. The premise of
Justice Scalia's opinion was the "incontestable" fact that the Constitution
established a system of "dual sovereignty."145 He documented this
assertion with references to The Federalist and Madison's notes on the
Constitutional Convention, which made clear that the division of governmental
sovereignty into two separate spheres was "one of the Constitution's structural
protections of liberty."146 The most conclusive authority on which
the decision rested, however, was prior Supreme Court decisions that said the
federal government could not compel states to implement federal regulatory
In a dissenting opinion, Justice Stevens rebuked the Court for its
display of text-disregarding judicial activism. He accused Justice Scalia of
using historical sources, the structure of the Constitution, and prior Court
decisions to establish the presumption "that it is the members of this Court,
rather than the elected representatives of the people, who should determine
whether the Constitution contains the unwritten rule that the Court announces
today."148 Justice Stevens declared: "There is not a clause,
sentence, or paragraph in the entire text of the Constitution of the United
States that supports the proposition" that a local police officer may ignore a
congressional statutory command pursuant to an express delegation of power
enumerated in Article I of the Constitution.149 Challenging Scalia's
textualist credentials, Justice Stevens charged him with the impropriety of
fashioning a "judicially crafted constitutional rule" from a silent text, as
well as a historical record that supported the federal regulatory
A textualist interpreter in Printz, Justice Stevens employed the
logic of "fundamental principles" in U.S. Term Limits Inc. v. Thornton
(1995), the Arkansas term limits case. At issue was whether a state
constitutional amendment prohibiting candidates for Congress from appearing on
the ballot if they had served three terms in the House of Representatives or
two terms in the Senate violated the federal Constitution. Justice Stevens, for
the Court, declared the amendment "contrary to 'the fundamental principle of
our representative democracy' embodied in the Constitution, that the 'people
should choose whom they please to govern them.'" He said that to permit states
to adopt qualifications for congressional service "would be inconsistent with
the Framers' vision of a uniform National Legislature representing the people
of the United States."151
In Stevens's opinion, it was not the text of the Constitution that was
controlling, but principles believed to be embodied in the text. As so often in
constitutional adjudication, the significance of the text in relation to
fundamental constitutional principles was in dispute. In a dissenting opinion,
Justice Thomas said textual provisions concerning qualifications of members of
Congress did not necessarily embody the principles averred by Justice Stevens.
Thomas believed the Arkansas constitutional amendment was consistent with the
"notion of popular sovereignty that undergirds the Constitution." This
principle, he declared, "does not erase state boundaries, but rather tracks
them." To invalidate the Arkansas amendment, it was necessary "to point to
something in the Federal Constitution that deprives the people of Arkansas of
the power to enact such measures."152
Contemporary constitutional theory serves both descriptive-explanatory
and normative functions. It accounts for existing governmental institutions
while directing and prescribing constitutional decision making and governmental
practice toward the ends and purposes of the regime.153 The idea of
an eclectic, pluralistic Constitution might be taken as an apt characterization
of the choices in constitutional adjudication available to federal judges in
the late twentieth century. Consistent with this view is the fact that the
Supreme Court as an institution has not made a commitment to any one of the
several methods of adjudication presently employed in constitutional law. No
judge, including Justice Scalia — notwithstanding his proclivity toward
textualist originalism — adheres with rigorous consistency to a single
jurisprudential method.154 The "analytical heart" of the Supreme
Court in the 1990s, observes Cass R. Sunstein, consists of five justices who
refuse to subscribe to a single approach. Thinking inductively rather than
deductively, eschewing broad rules and abstract theories, they proceed on a
case-by-case basis, focusing only on what is necessary to decide a particular
Although supported by empirical observation, it is not clear that the
idea of an eclectic-pluralistic Constitution has gained normative acceptance as
an authoritative and legitimate account of the rule of law in American
government and politics. For example, a theorist of the common law Constitution
states that the terms of debate in constitutional jurisprudence continue to be
set by the view that principles of constitutional law must ultimately be traced
to the text of the Constitution. In this view, any alleged departure from the
text is considered illegitimate.156 The developments in
constitutional theory surveyed in this book suggest, however, that this
situation is changing. As further evidence of this trend, several Supreme Court
justices in the 1990s appear to be engaged in an effort to shift the focus of
constitutional adjudication away from the written Constitution. This would
weaken, if not undermine, the textualist-originalist interpretive presumption
that written constitutionalism introduces into American government.
A notable attempt to reconceptualize the nature of American
constitutionalism appeared in Planned Parenthood of Southeastern
Pennsylvania v. Casey (1992). Although upholding a Pennsylvania abortion
regulation act against constitutional challenge, the Supreme Court in this case
confirmed Roe v. Wade as the foundation of the right of abortion and
national pro-choice policy. From the standpoint of constitutional theory, the
significance of the decision lay in the attempt of Justices Kennedy, Souter,
and O'Connor, in a plurality opinion, to provide a descriptive and normative
account of the American polity in the late twentieth century.
The plurality opinion conceives of the Constitution as "a covenant" and
"a coherent succession" running "from the first generation of Americans to us
and then to future generations." Each generation, the justices admonish, must
learn that the written terms of the Constitution embody ideas and aspirations
that "must survive more ages than one." The Constitution is for the good of the
people, but responsibility for the Constitution belongs to the Supreme Court.
The Court's responsibility is explained in the assertion that the "root of
American governmental power is revealed most clearly" in the power conferred by
the Constitution on the federal judiciary — specifically, on the Supreme
Court.157 As a result of this revelation, it falls to the Supreme
Court to decide intensely divisive national controversies. Not often is the
Court asked to perform this duty; only twice in their lifetimes, the justices
observe — in Brown v. Board of Education and Roe v. Wade
— have they been called on to do so. On those occasions, however, or
"whenever the Court's interpretation of the Constitution calls the contending
sides of a national controversy to end their national division by accepting a
common mandate rooted in the Constitution," the decision of the Supreme Court
possesses a special dimension. It acquires "rare precedential force" to counter
efforts that will inevitably be made to overturn the decision.158 If
the Court should yield to these political pressures — should it "overrule
under fire in the absence of the most compelling reason to reexamine a
watershed decision" — its legitimacy will be subverted.159
The question necessarily arises: What makes the decisions of the Supreme
Court legitimate in ordinary cases, as well as on the extraordinary occasions
when it is called on to settle national political controversy? Is there a
particular manner or method of constitutional adjudication on which the
legitimacy of a Supreme Court decision depends? In the view of the plurality
justices, the answer to these questions is principled decision making, or the
appearance thereof. Justices Kennedy, Souter, and O'Connor declare: "The Court
must take care to speak and act in ways that allow people to accept its
decisions on the terms the Court claims for them, as grounded truly in
principle, not as compromises with social and political pressures having, as
such, no bearing on the principled choices that the Court is obliged to
make."160 The opinion states further that "the Court's legitimacy
depends on making legally principled decisions under circumstances in which
their principled character is sufficiently plausible to be accepted by the
The type of adjudication prescribed, and presumably practiced, by the
Casey plurality is common law constitutional interpretation. Decisions
are made and legal doctrines are developed incrementally, case by case.
Decisions acquire precedential force and become authoritative not because they
uphold fundamental law, in the sense of conforming to a fixed constitutional
principle of unchanging meaning. Decisions are authoritative because they are
"principled." In the view of the plurality justices, this means simply that a
decision is not an expedient compromise between contending political forces.
The key point in constitutional common law judging is that there is a
"promise of constancy" implicit in the Court's decision, especially a decision
intended to settle a national political controversy. Once given, this promise
"binds its maker for as long as the power to stand by the decision survives and
the understanding of the issue has not changed so fundamentally as to render
the commitment obsolete."162 The plurality opinion thus identifies
the doctrine of stare decisis, which in common law constitutional
interpretation has much greater authority and effect than has traditionally
been accorded it in constitutional law. Kennedy, Souter, and O'Connor hold that
a decision-precedent is controlling until the Court determines that public
opinion has changed to such an extent that the principle embodied in the
decision no longer applies and the promise given no longer need be considered
binding.163 The role envisioned for the Supreme Court by the
Casey plurality, like the substantive-values activism it may be intended
to supersede, raises the question of the countermajoritarian difficulty that
has bedeviled liberal constitutional theory since the Warren Court. This
impression is strengthened by the fact that Casey confirmed Roe v.
Wade, perhaps the most activist Supreme Court decision of the twentieth
The members of the Casey plurality forfend against the charge of
judicial imperialism by equating the legitimacy of Supreme Court decision
making with the political well-being of the American people. They state that
the Court's legitimacy is an achievement that has been earned over time. "So,
indeed, must be the character of a Nation of people who aspire to live
according to the rule of law." Americans' belief in themselves as a law-loving
and -abiding people, the plurality justices immodestly aver, is inseparable
from "their understanding of the Court invested with the authority to decide
their constitutional cases and speak before all others for their constitutional
ideals." Kennedy, Souter, and O'Connor warn, "If the Court's legitimacy should
be undermined, so would the country be in its very ability to see itself
through its constitutional ideals." This is not said for reasons of
institutional self-interest, the justices explain, "but for the sake of the
Nation to which [the Court] is responsible."164
Casey may signal a shift in the theory of constitutional
adjudication used to justify the role of the Supreme Court in American
government at the end of the twentieth century. Morton Horwitz, a liberal
commentator, saw the decision as a repudiation of the originalist attempt to
deny the legitimacy of changing constitutional meaning under the doctrine of
the living constitution. According to Horwitz, the plurality opinion offered a
theory explaining when and how fundamental constitutional change was legitimate
and could be effected by the Supreme Court. Rejecting the notion of a timeless
and unchanging fundamental law, the plurality gave promise of resolving the
crisis of legitimacy in constitutional law by articulating a concept of "legal
fundamentality" compatible with modernist philosophy. Horwitz believed the
Court also avoided the appearance of a judicial imposition of values
inconsistent with democratic theory.165
From a conservative perspective, too, the Casey decision appeared
to mark a major shift in constitutional theory. Gerard V. Bradley treated the
plurality opinion as promulgating a new constitution, the distinguishing
feature of which is the power of the Supreme Court to create constitutional
meaning. Bradley said the new constitution is related to the old one insofar as
judicial opinions refer to provisions of the text and the justices believe they
are being faithful to the original Constitution by addressing problems
contemplated by the founders. In fact, this approach to interpretation perfects
the judicial activism of the 1960s and rejects the written constitutionalism of
the founding. It does so in the most significant sense, Bradley argued, by
giving the Supreme Court authority to decide anything that it believes is
controversial enough to require a uniform national policy.166
In Cooper v. Aaron (1958), the Little Rock school desegregation
case, the Supreme Court claimed that its decisions interpreting the
Constitution, no less than the Constitution itself, were the supreme law of the
land. Instructed by liberal theorists, activist judges since then have with
increasing candor treated constitutional law as a policy-making legislative
endeavor. The Casey joint opinion, written by three Republican justices,
suggests that the originalist challenge to judicial activism has forced
judicial middle-of-the-roaders to associate themselves more openly with
advocates of living constitutionalism. In Casey this willingness to
break with written constitutionalism is seen in the decisive emphasis placed on
stare decisis as a controlling principle in what in essence is conceived of as
a common law constitution. This is the reason for affirming Roe v. Wade,
a decision that some or all of the authors of the plurality opinion appear to
believe erroneous under the original Constitution but which they accept under
the new constitution posited in Casey.167
In public policy terms, the central feature of the Casey
constitution is the right of abortion, redefined and relabeled as the right of
personal liberty under the due process clause of the Fourteenth
Amendment.168 The substance of the new constitution in institutional
terms is the sovereign, or ultimate, law-making authority of the Supreme Court.
In Bradley's view, the joint opinion expresses the centrist Republican judges'
appeal to public opinion for confirmation of the Court's authority as the
ultimate maker of constitutional meaning. The question after Casey is
whether the people will ratify the new constitution.169
It is perhaps surprising that Bradley's analysis of present
constitutional tendencies, at a descriptive level, comports with the account of
common law constitutional interpretation advanced by liberal theorists. Unless
his argument is dictated by rhetorical strategy, Bradley seems prepared to
recognize that the judicially fabricated constitution of the Casey
decision may gain acceptance as the ground of legitimacy in American
government.170 Other conservative scholars, however, reject this
description of the current situation and make a traditional
textualist-originalist appeal for constitutional renewal.171
Meanwhile, on the liberal side of the political spectrum, as we have seen, a
variety of theories compete for ascendancy as the most persuasive account and
justification of the contemporary liberal state.
The symbols of American constitutionalism — the Constitutional
document and ideas such as liberty, equality, popular sovereignty, and the rule
of law — are so firmly embedded in the political culture that both sides
in the contemporary debate are constrained to accept them. Consensus on the
symbols exists at such a high level of generality, however, as to be
practically meaningless. No one believes that it means very much for the actual
decision of cases that a liberal like Ronald Dworkin should agree with Justice
Scalia that constitutional interpretation properly takes into account the text,
structure, past constitutional practice, and history of constitutional
law.172 Nor can it be encouraging to liberals that Scalia, the
textualist-originalist, seems to adopt the outlook of a legal realist in
rejecting the possibility of a neutral ground in the culture
There is, then, more perhaps than at any time in the twentieth century,
disagreement, confusion, and uncertainty about what the Constitution of the
United States is.174 This does not prevent government officials from
making constitutional decisions, especially if they believe there is no right
answer to the question. In the absence of a federal constitutional convention,
which though permitted by the text of the Constitution is politically
inconceivable in the foreseeable future, the question — what is the
Constitution? — will be decided pluralistically, at different levels of
government and in various forums, including that of professional
scholarship.175 The Supreme Court will have a major voice in the
constitutional debate, but it will not be the only voice.176
The deeper significance of the controversy over the nature of the
Constitution concerns the character and condition of republican government in
the United States. As in the founding period, the question is whether American
citizens will govern themselves through limited constitutions, guaranteeing
individual and local liberty under the rule of law. In constituting government
it is still a practical consideration whether the ground of political
legitimacy should be a written constitution or an unwritten constitution of
custom, institutional practice, and common law adjudication. Written
constitutions were conceived in the eighteenth century as an improvement in
political science that could make fundamental law enforceable and effective.
Establishing the ends, principles, and forms of republican government in a
written constitution would not, by itself, be sufficient to limit government,
but having a written constitution was seen as a necessary basis for placing
limits on government.177 A properly enforced constitutional document
had a symbolic and civic-religious dimension that was integral to its
effectiveness. Although recognizing the imprecision of language as a means of
organizing and regulating government, the founders believed that "particular
discussions and adjudications" of the Constitution, which were anticipated in
its enforcement, would ascertain the meaning of the text.178 Should
adjudication and interpretation lead to trivialization and effective dismissal
of the constitutional text, however, producing a situation where rhetorical
symbolism was all that remained, the written Constitution would not be a real
constitution, either of republican government or of fundamental law.
Written constitutionalism has declined in the twentieth-century United
States, a corollary if not a consequence of the establishment of a national
government of unlimited power. The desire to restore limited government is
expressed in political opposition to the expansion of the regulatory-welfare
state. It has been the main cause of the revival of written constitutionalism,
as seen in the emergence of original-intent jurisprudence. As the federal
government has extended its power ever farther into social and political life,
more people have been led to ask: "What kind of government, and what kind of
constitution, does the United States have, anyway?"
With the exception of the "imperial presidency" in the Johnson-Nixon
era, debate on this question in constitutional law and theory since the 1960s
has focused on the judicial branch and the countermajoritarian difficulty. In
the main, defenders of government by judiciary have argued that an activist
Supreme Court promotes democracy by enacting public policies that promote
democracy and are good for the people. More recently the claim is made that an
activist Court promotes republican self-government by making its decisions
through a deliberative process, thus demonstrating its consistency with
democratic rule and maintaining its political legitimacy.179 Among
liberals, however, the assertion of common law constitutionalism as a
supposedly moderate alternative to more forthright judicial interventionism
suggests that these arguments have lost much of their persuasiveness. Within
the academic legal culture the idea that courts uniquely speak the voice of
"public reason" is contradicted by the well-known anecdotal account of Justice
Brennan's reply to the question, what does it take to win a case in the Supreme
Court? The answer, said Brennan, was five votes. It would be more accurate to
say that when the judges engage in activist policy making, they illustrate the
danger, perceived by the founders, that claims to protect minority rights may
be a pretext for "introducing into the government a will not dependent on the
[majority], ... a will independent of the society itself."180
As a practical matter, the Supreme Court for the foreseeable future will
have the last word in constitutional interpretation. The elaborate depository
of constitutional law, resulting from judicial review and legalistic
interpretation of the constitutional text, gives the Court the presumptive
upper hand in contests over constitutional meaning. All of the present
justices, moreover, agree on the institutional value of maintaining the Court's
authority as the ultimate interpreter of the Constitution.181 Most
of the time, moreover, members of Congress and officials in the executive
branch are content to let the judges assume responsibility for resolving
disputes over constitutional interpretation. Nevertheless, the tradition of
written constitutionalism, which has been revived in original-intent
jurisprudence, makes it possible to apply concepts and doctrines not
recoverable, or more difficult to recover, under the doctrine of the unwritten
living constitution. Under the originalist-textualist approach to
constitutional interpretation, for example, doctrines of federalism and
property rights have been revived that were long thought consigned to the
dustbin of history In contemporary constitutional politics these doctrines are
regarded as conservative, but the originalist method and the tradition of
written constitutionalism could also be used for liberal purposes, to defend
the regulatory-welfare state on the basis of text-based doctrines of national
supremacy, should that exigency arise.182
In conclusion, tension exists between the founding project of written
constitutionalism and the twentieth-century project of unwritten living
constitutionalism As a matter of historical fact, the result of this tension
may be said to be a pluralistic constitutional culture suitable to the needs of
a pluralistic republican people 183 Whether this perception will be
elevated into a persuasive constitutional theory, providing a normative
framework for limited republican government in the United States, remains to be
1 Michael Kammen, A Machine That Would Go of Itself: The Constitution
in American Culture (New York Vintage Books, 1987), p. 399.
2 Describing Bork's defeat as a decisive "constitutional moment," an
optimistic liberal commentator said it signified popular approval of judicial
discretion exercised for the "protection of rights not specifically stated in
the text or intended by the framers," and "public acceptance that the
Constitution is a commitment that certain areas of public life should be
governed by unelected judges with the authority to decide what values are so
important that they should be protected from majority rule." Erwin Chemerinsky,
"The Constitution Is Not 'Hard Law' The Bork Rejection and the Future of
Constitutional Jurisprudence," Constitutional Commentary 6 (1989),
29-38, at p. 36.
3 Morton J. Horwitz, "Foreword The Constitution of Change Legal
Fundamentally without Fundamentalism," Harvard Law Review 107 (1993),
4 H. Jefferson Powell, The Moral Tradition of American
Constitutionalism: A Theological Interpretation (Durham, N. C. Duke
University Press, 1993), p. 10.
5 David P. Bryden, "A Conservative Case for Judicial Activism," The
Public Interest 111 (1993), 72-85.
6 Norman P. Barry, The New Right (London Croom Helm, 1987), pp.
7 But it may not have been the milestone that a generation of liberal
constitutional scholars thought it was For a revisionist view of the
policy-making significance of Brown v. Board of Education, see Gerald N.
Rosenberg, The Hollow Hope Can Courts Bring About Social Change?
(Chicago University of Chicago Press, 1991).
8 G. Edward White, Earl Warren A Public Life (New York Oxford
University Press, 1982).
9 H. Jefferson Powell, The Moral Tradition of American
Constitutionalism, pp. 169-72.
10 Ibid., pp. 173-77.
11 Raoul Berger, Congress v. The Supreme Court (Cambridge, Mass
Harvard University Press, 1969).
12 Ibid., p. 245.
13 Ibid., pp. 1-2.
14 Ibid., p. 252.
15 Ibid., pp. 252, 254.
16 Ibid., p. 282.
17 Ibid., p. 3.
18 Ibid., p. 7.
19 Ibid., p. 366.
20 Howard Gillman, "The Collapse of Constitutional Originalism and the
Rise of the Notion of the 'Living Constitution' in the Course of American
State-Buildmg," Studies in American Political Development 11 (Fall
1997), 191-247, esp. 197-213.
21 Robert H. Bork, The Tempting of America The Political Seduction of
the Law (New York Simon & Schuster, 1990), p. 2.
22 Ibid., p. 5.
23 Earl M. Maltz, "The Failure of Attacks on Constitutional
Originalism," Constitutional Commentary 4 (1987), 43-56, at 51, 55.
24 Earl M. Maltz, Rethinking Constitutional Law Originalism
Interventionism and the Politics of Judicial Review (Lawrence University
Press of Kansas, 1994), pp. 26-27.
25 Gary L. McDowell, "The Philosophic Dimension of Constitutional
Interpretation," unpublished manuscript, pp. 1-4.
26 Henry P. Monaghan, "Our Perfect Constitution," New York University
Law Review 56 (1981), 353-96, at 353.
27 Ibid., p. 354.
28 Ibid., pp. 375-76, 384.
29 Maltz, Rethinking Constitutional Law, pp. 15-16 See also
Michael P. Zuckert, "Epistemology and Hermeneutics in the Constitutional
Jurisprudence of John Marshall," in Thomas C. Shevory, ed., John Marshall's
Achievement Law, Politics, and Constitutional Interpretations (Westport,
Conn Greenwood Press, 1989), pp. 193-216.
30 Michael S. Moore, "Do We Have an Unwritten Constitution?" Southern
California Law Review 63 (1989), 107-39, and "The Constitution as Hard
Law," Constitutional Commentary 6 (1989), 51-67, Stanley R. Brubaker,
"Conserving the Constitution," American Ear Foundation Research Journal
1987, 261-80, and "What Constitutes the Constitution?" unpublished manuscript,
31 While insisting that the "principles of the actual Constitution make
the judge's major moral choices for him," Bork acknowledged a role for moral
philosophy in constitutional law Observing that moral philosophy was valuable
"at the retail level," he said that moral reasoning made judges aware of the
complexities, likenesses, and dissimilarities of situations Bork believed this
type of philosophical analysis was essential in applying the principles of the
Constitution to new situations There was a limit, however, on the use of moral
philosophy judges must not use it to create new constitutional principles Bork,
The Tempting of America, p. 254.
32 Graham Walker, Moral Foundations of Constitutional Thought
(Princeton Princeton University Press, 1990), pp. 62-63n.
33 Ibid., p. 63n.
34 Thomas C. Grey, "Do We Have an Unwritten Constitution?" Stanford
Law Review 27 (1975), 703-18, at 703-09.
35 Ibid., p. 709.
36 Thomas C. Grey, "Origins of the Unwritten Constitution Fundamental
Law in American Revolutionary Thought," Stanford Law Review 30 (1978),
37 Ely was the author of a stinging critique of Roe v. Wade as an
example of unconstitutional judicial activism While conceding that unlimited
majority rule could be dangerous, he said it required a heroic inference to
reach "the conclusion that enforcement by unelected officials of an 'unwritten
constitution' is an appropriate response in a democratic republic." John Hart
Ely, "Constitutional Interpretivism: Its Allure and Impossibility," Indiana
Law Jour. nal 53 (1978), 411, Ely, Democracy and Distrust A Theory of
Judicial Review (Cambridge, Mass Harvard University Press, 1980), p. 8.
38 Ely, Democracy and Distrust, p. VII.
39 Ibid., p. 12.
40 Ibid., p. 13.
41 John Hart Ely, "On Discovering Fundamental Values," Harvard Law
Review 92 (1978), 21n.
42 Ely, Democracy and Distrust, p. 41.
43 Laurence H. Tribe, "The Puzzling Persistence of Process-Based
Constitutional Theories," Yale Law Journal 89 (1980), 1063-80 Tribe
criticized Ely's theory of constitutional review for trying to avoid
substantive problems of moral philosophy.
44 Michael J. Perry, "Book Review," Columbia Law Review 78
(1978), 678-705, at 697.
45 Ibid., pp. 700-01.
46 Paul Brest, "The Misconceived Quest for the Original Understanding,"
Boston University Law Review, 60 (1980), 204-38, at 219 Citing the
political philosopher Quentin Skinner, Brest said the historian brings to a
text expectations and preconceptions that organize and determine her
perceptions so as to preclude understanding an author as he understood himself.
47 Ibid., p. 221.
48 Ibid., pp. 225-26.
49 Ibid., pp. 205, 226.
50 Ibid., p. 234.
51 Ibid., p. 224.
52 Ibid., pp. 234-35.
53 Speech by Justice William J. Brennan, Jr., to the Text and Teaching
Symposium, Georgetown University, 12 October 1985, in The Great Debate
Interpreting Our Written Constitution (Washington, DC. The Federalist
Society, 1987), pp. 11-25.
54 Bork, The Tempting of America, p. 300.
55 Morton Horwitz, "Foreword The Constitution of Change," p. 117.
56 Chemerinsky, "The Constitution Is Not 'Hard Law,' " pp. 29-38, at 29.
57 Bork, The Tempting of America, pp. 271, 323.
58 Ibid., p. 337 A similar view is expressed in Joseph D. Grano,
"Deconstructing the Constitution," Academic Questions 2 (Winter,
59 Ethan Bronner, Battle for Justice How the Bork Nomination Shook
America (New York W. W. Norton, 1989), pp. 98-104.
60 Grano, "Deconstructing the Constitution," p. 18.
61 Philip Bobbitt, "Constitutional Interpretation," in Kermit H. Hall,
ed., The Oxford Companion to the Supreme Court of the United States (New
York Oxford University Press, 1992), p. 189.
62 Chemerinsky, "The Constitution Is Not 'Hard Law,' " 37-38.
63 Stephen M. Griffin, "What Is Constitutional Theory? The Newer Theory
and the Decline of the Learned Tradition," Southern California Law
Review 62 (1989), 493-538, at 495.
64 Chemerinsky, "The Constitution Is Not 'Hard Law,' " pp. 36-37.
65 Jeffrey Rosen, "Originalist Sin," The New Republic, 5 May
1997, p. 36.
66 Steven D. Smith, "The Constitution of Babel," First Things
(January 1998), pp. 27-32, at 27 See Fred M. Frohock, "The Boundaries of Public
Reason," American Political Science Review 91 (1997), 833-44.
67 J. M. Balkin, "The Rule of Law as a Source of Constitutional Change,"
Constitutional Commentary 6 (1989), 21-27, at 25.
68 Lawrence G. Sager, "The Incorrigible Constitution," New York
University Law Review 65 (1990), 893-961, at 955, 958.
69 Edward B. Foley, "Interpretation and Philosophy Dworkin's
Constitution," Constitutional Commentary 14 (1997), 151-74.
70 H. Jefferson Powell, The Moral Tradition of American
Constitutionalism, p. 10.
71 Bruce Ackerman, We the People Foundations (Cambridge, Mass
Harvard University Press, 1991), p. 43.
72 Ibid., p. 179, quoting The Federalist, No. 40.
73 Ibid., p. 195.
74 Ibid., p. 34.
75 Ackerman identifies three constitutional moments the 1787 founding,
the Reconstruction amendments, and the New Deal The changes in the
constitutional order that occurred on the first two occasions were in some
sense irregular from the standpoint of the existing constitutional rules and
forms The Federalist Framers disregarded their commission to revise the
Articles of Confederation and the requirement of unanimity in amending the
Articles In Reconstruction, the Thirteenth and Fourteenth amendments were
irregular to the extent that the ex-Confederate states that ratified them did
not participate in the deliberative process that formulated the amendments, the
states were in effect coerced into adopting them The New Deal regime was not
constitutionally irregular if conceived of as a series of institutional
adaptations and policy changes that were determined to be legitimate under
existing constitutional law by the federal judiciary and ultimately the
electorate The New Deal regime was constitutionally irregular, however, if
conceived of, as in Ackerman's account, as the establishment of a distinctive
governmental order under new constitutional principles, presumed to be as
binding on courts, government officials, and political actors as a
constitutional revision effected under Article V The problem of constitutional
amendment options and strategy in the New Deal is discussed in David E. Kyvig,
Explicit and Authentic Acts Amending the U. S. Constitution 1776-1995
(Lawrence University Press of Kansas, 1996), pp. 289-314.
76 Bruce Ackerman, "A Generation of Betrayal?" Fordham Law Review
65 (1997), 1519-36, at 1526.
77 Ibid., p. 1528.
78 Ibid., pp. 1528-29, 1535.
79 Sanford Levinson, ed., Responding to Imperfection: The Theory and
Practice of Constitutional Amendment (Princeton, N. J. Princeton University
Press, 1995), pp. 3-36.
80 Sanford Levinson, Constitutional faith (Princeton, N. J.
Princeton University Press, 1988), p. 36.
81 Levinson, ed., Responding to Imperfection, p. 21.
82 Ibid., p. 26.
83 Ibid., p. 26.
84 Ibid., p. 33.
86 Ibid., p. 34.
87 Ibid., p. 32.
88 Stephen M. Griffin, "Constitutionalism in the United States From
Theory to Politics," in Sanford Levinson, ed., Responding to
Imperfection, p. 38, Stephen M. Griffin, American Constitutionalism From
Theory to Politics (Princeton, N. J. Princeton University Press, 1996), pp.
5, 28, 56.
89 Griffin, "Constitutionalism in the United States From Theory to
Politics," p. 53.
90 Griffin refrains from employing the terminology of the unwritten
constitution because he says it simplifies issues that require more detailed
explanation It seems clear, however, that text-based institutional practice is
substantially the same thing as the unwritten constitution asserted in
progressive and liberal legal thought in the twentieth century Griffin,
American Constitutionalism, p. 55n.
91 Griffin, "Constitutionalism in the United States From Theory to
Politics," p. 43.
92 Ibid., Griffin, American Constitutionalism, p. 53.
93 Ibid., p. 55.
94 Ibid., p. 53.
95 Ibid., p. 55.
96 Ibid., p. 57.
97 Griffin, "Constitutionalism in the United States: From Theory to
Politics," p. 61.
98 Griffin, American Constitutionalism, p. 211.
99 See James R. Stoner, Jr., Common Law and Liberal Theory Coke,
Hobbes, and the Origins of American Constitutionalism (Lawrence University
Press of Kansas, 1992), James E. Herget, American Jurisprudence, 1870-1970 A
History (Houston Rice University Press, 1990), pp. 126-29.
100 Sylvia Snowiss, Judicial Review and the Law of the
Constitution (New Haven, Conn Yale University Press, 1990).
101 Henry Paul Monaghan, "Constitutional Common Law," Harvard Law
Review 89 (1975), 1-45.
102 Ibid., p. 44.
103 Ibid., p. 45.
104 Henry P. Monaghan, "Stare Decisis and Constitutional Adjudication,"
Columbia Law Review 88 (1988), 723-73, at 727-31 In this article
Monaghan aligns himself in opposition to original-intent jurisprudence, which
he previously supported See Henry P. Monaghan, "Our Perfect Constitution,"
New York University Law Review 56 (1981), pp. 353-96.
105 Cass R. Sunstein, The Partial Constitution (Cambridge, Mass
Harvard University Press, 1993), pp. 94, 106, 116, 119-21.
106 Ibid., p. 123 In the view of its proponents, constitutional common
law adjudication often does not change the Constitution but "translates" it in
a contemporary context in a way that preserves the constitutional values
contained in the text Ibid., p. 121 For theoretical discussion of
constitutional "translation" as a means of maintaining fidelity to the
Constitution, see Lawrence Lessig, "Fidelity and Constraint," Fordham Law
Review 65 (1997), 1365-1443 The key to constitutional translation is the
proposition that the meaning of words depends on the context in which they are
uttered Ibid., p. 1370.
107 Cass R. Sunstein, "Making Amends," The New Republic, 3 March
1997, pp. 38-43, at 42.
108 Ibid., p. 43.
109 Ibid. In 1997 an organization, Citizens for the Constitution, was
formed with the aim of protecting the Constitution against the threat posed by
too frequent advocacy of formal constitutional amendment In the view of this
organization, constitutional amendments are routinely introduced by their
supporters as "the favored first-step panacea for all societal ills." Proposing
specific public policies, such amendments have "the potential to undermine an
American culture that properly treasures and reveres our Constitution." Should
they be adopted, they would turn "an effective and enforceable charter of
government into a document of faddish aspirations." Citizens for the
Constitution, "The Threat to Our Constitution" (Washington, D.C., 1997), p. 1
Sunstein is listed as a member of Citizens for the Constitution.
110 Cass R. Sunstein, "Against Tradition," Social Philosophy and
Policy 13 (Winter 1996), pp. 207-28, at 208.
111 James E. Fleming, "Fidelity to Our Imperfect Constitution,"
Fordham Law Review 65 (1997), 1335-55, at 1336.
113 Ronald Dworkin, "The Arduous Virtue of Fidelity Originalism, Scalia,
Tribe, and Nerve," Fordham Law Review 65 (1997), 1249-68, at 1253.
115 Ibid., p. 1255.
116 Ibid., p. 1267.
117 Fleming, "Fidelity to Our Imperfect Constitution," pp. 1336, 1346.
118 Earl M. Maltz, Rethinking Constitutional Law Originalism,
Interventionism, and the Politics of Judicial Review (Lawrence University
Press of Kansas, 1994), pp. 46-73.
119 Jeffrey Rosen, "Originalist Sin," pp. 27, 36 In this article Rosen
analyzed Justice Scalia in the context of the originalist revival Rosen
credited him with redefining the terms of constitutional debate and causing
liberal theorists, such as Laurence Tribe and Ronald Dworkin, to talk like
originalists Rosen argued, however, that Scalia is not a true originalist, but
a moral traditionalist who is guilty of interjecting his own values into his
constitutional decisions Rosen said Scalia is not the dispassionate guardian of
the constitutional text that he professes to be.
120 Antonin Scalia, A Matter of Interpretation Federal Courts and the
Law (Princeton, N. J. Princeton University Press, 1997).
121 Ibid., p. 38.
122 Ibid., p. 9.
123 Scalia recognizes that in earlier centuries, when the declaratory
concept of law prevailed, common law judging did not have this character It
became subjective, willful, and politicized in the age of legal realism Ibid.,
124 Ibid., p. 4.
125 Ibid., p. 38.
126 Ibid. Scalia says that to ask the intent of the legislative or
constitution-writing body in practice becomes the question of what the
legislature meant or what a reasonable and intelligent person should have meant
It follows that what the legislature meant is what the judge thinks the
legislature meant or, what is the same thing, what the judge thinks is
reasonable and intelligent Ibid., p. 18.
127 Ibid., p. 23.
128 Ibid., p. 37.
129 Ibid., p. 38.
130 Ibid., pp. 41-46.
131 S. E. Finer, "Notes towards a History of Constitutions," in Vernon
Bogdanor, ed., Constitutions in Democratic Politics (Gower, England
Aldershot, 1988), pp. 17-32, at 21.
132 Ibid., p. 31.
133 Harvey C. Mansfield, Jr., America's Constitutional Soul
(Baltimore, Md. Johns Hopkins University Press, 1991), pp. 193-208.
134 Grano, "Deconstructing the Constitution," p. 18.
135 The problem of moral evaluation in the study of constitutionalism is
discussed with insight by Carl J. Friednch, Constitutional Government and
Democracy Theory and Practice in Europe and America, 4th ed. (Waltham, Mass
Blaisdell, 1968), pp. 125-28, and M. J. C. Vile, Constitutionalism and the
Separation of Powers (Oxford Oxford University Press, 1967), p. 308 In
contemporary constitutional law there is abundant discussion of what appears to
be an increasing tendency on the part of activist judges to protect
controversial decisions by wrapping them in "the dictates of the Constitution's
fine garb." Grano, "Deconstructing the Constitution," p. 11. Lino Graglia, a
conservative scholar, states that judicial activists protect the judiciary from
popular control by obfuscation and mystification, by appealing to the
Constitution as "a quasi-sacred document, a mysterious compendium of commands
and limitations on the popular will" Lino Graglia, "Judicial Activism Even on
the Right, It's Wrong," The Public Interest 95 (1989), 57-74, at 60 On
the left, the Critical Legal Studies group has long been known for its
reductionist view of legal reasoning as a form of political ideology used by
the ruling class to maintain hegemonic control.
136 The relationship between constitutional scholarship and
constitutional government is in a general sense the subject of this book
Professional and academic legal scholarship both reflects and influences
doctrinal and philosophical tendencies in constitutional practice In the crisis
situation that is seen to exist in late twentieth-century American
constitutionalism, some commentators may exaggerate the significance of their
critical function For a candid statement of scholarly ambition in shaping the
direction of constitutional law, see Sanford Levinson, "Authorizing
Constitutional Text On the Purported Twenty-Seventh Amendment,"
Constitutional Commentary 11 (1994), 101-14 Levinson states that in
their role as textbook and treatise writers, legal academics have power,
influence, and authority as "legal decision makers." As theorists and critics,
they have the ability to create meaning and act as legitimators and
delegitimators Ibid., pp. 108, 112.
137 131 L. Ed 2d 626, at 642.
138 Ibid., p. 643 In a dissenting opinion, Justice Breyer said the case
should be decided by adherence to the Court's historical development of
commerce clause jurisprudence. This led Breyer to regard the text of the
commerce clause not as a legal conception, but as referring to practical
relationships in society 115 S. Ct. 1624 (1995) at 1659.
139 116 S. Ct. 1114 (1996) at 1131.
141 Ibid., p. 1165.
142 Ibid., p. 1169.
143 Ibid., p. 1177 Although the common law was not received into
constitutional law at the founding, Justice Souter recognized that the Supreme
Court adopted a doctrine of federal common law under the Eleventh Amendment in
Hans v. Louisiana (1890) Souter accepted Hans because it formed a
historic strand in the federal-state relationship that warranted protection
under the doctrine of stare decisis Ibid., p. 1184.
144 117 S. Ct. 2356 (1997) at 2370.
145 Ibid., p. 2376.
146 Ibid., p. 2378 Justice Scalia also enumerated the separation of
powers and the unity of the executive branch as structural principles in the
147 Ibid., p. 2379.
148 Ibid., p. 2387.
149 Ibid., p. 2389.
150 Ibid., pp. 2393-94.
151 U. S. Term Limits Inc. v. Ray Thornton et al. 1995 WL. 306517
*2 (U.S. ), 3.
152 Ibid., p. 38.
153 Stephen M. Griffin, "What Is Constitutional Theory? The Newer Theory
and the Decline of the Learned Tradition," Southern California Law
Review 62 (1989), 493-538.
154 Cass R. Sunstein, "Foreword Leaving Things Undecided," Harvard
Law Review 110 (1996), 6-101, at 13-14 In the spectrum of adjudicative
theories, substantive-values activism and textualist-originalism are at the
extremes, and middle-ground positions are based on constitutional history,
structure, tradition, case law, and doctrinal development.
155 Ibid., p. 14.
156 David A Strauss, "Common Law Constitutional Interpretation,"
University of Chicago Law Review 63 (1996), 877-936, at 878.
157 Planned Parenthood of Southeastern Pennsylvania v. Casey, 112
S. Ct. 2791 (1992), at 2814.
158 Ibid., p. 2815.
160 Ibid., p. 2814.
162 Ibid., p. 2815.
163 In a dissenting opinion, Chief Justice Rehnquist described the
plurality's view of stare decisis as "truly novel." He said it meant that "when
the Court has ruled on a divisive issue, it is apparently prevented from
overruling that decision for the sole reason that it was incorrect, unless
opposition to the original decision has died away." Ibid., p. 2863.
164 Ibid., p. 2816.
165 Horwitz, "Foreword The Constitution of Change," pp. 116-17.
166 Gerard V. Bradley, "Shall We Ratify the New Constitution? The
Judicial Manifesto in Casey and Lee," in Terry Eastland, ed.,
Benchmarks Great Constitutional Controversies in the Supreme Court
(Grand Rapids, Mich. Wm. B. Werdman's, 1994), pp. 117-140, at 125-27.
167 Ibid., pp. 125-26.
168 Referred to by Bradley as the "megaright" in the new constitution,
the definition of this right is worth noting as a reflection of the ambitious
scope of the plurality justices' theoretical project. The opinion states "At
the heart of liberty is the right to define one's concept of existence, of
meaning, the universe, and of the mystery of human life. Beliefs about these
matters could not define the attributes of personhood were they formed under
the compulsion of the State." 112 S. Ct. 2807.
169 Bradley, "Shall We Ratify the New Constitution?' pp. 130-31.
170 Bradley says "The sheer fact of effectiveness — that a given
body's pronouncement can and will be taken as authoritative — may be
taken to engender obligation if in truth the authority secures and
advances the common good ." Ibid., p. 129 He opposes ratification of the new
Constitution asserted in Casey, but not because it rests on a false
interpretation of the 1787 Constitution He says that "now that we are
clearheaded," that kind of error is beside the point "We are asking about an
original act of constitution-making, not interpretation of settled
authorities." Ibid., p. 132.
171 Steven G. Calabresi, "The Tradition of the Written Constitution A
Comment on Professor Lessig's Theory of Translation," Fordham Law Review
65 (1997), 1435-56, Michael W. McConnell, "The Importance of Humility in
Judicial Review A Comment on Ronald Dworkin's 'Moral Reading' of the
Constitution," Fordham Law Review 65 (1997), 1269-93, Stephen B.
Presser, Recapturing the Constitution Race, Religion, and Abortion
Reconsidered (Washington: Regnery, 1994).
172 Ronald Dworkin, "The Arduous Virtue of Fidelity," p. 1250.
173 Louis Michael Seidman, "Romer's Radicalism The Unexpected
Revival of Warren Court Activism," 1996 Supreme Court Review, 67-121, at
174 Although indirectly more than directly, this view is confirmed in a
study by Mark A Graber of how contemporary constitutional theorists use the
Dred Scott case to show the superiority of their approach to
constitutional interpretation and the fallacy of other approaches Arguing that
the superiority of any theory cannot be demonstrated, Graber says "No
contemporary approach to the judicial function in constitutional cases is
immune to proslavery results in the particular fact situation presented by
Dred Scott or, for that matter, in the broader context provided by the
American law of slavery." Mark A. Graber, "Desperately Ducking Slavery Dred
Scott and Contemporary Constitutional Theory," Constitutional
Commentary 14 (1997), 271-318, at 280.
175 See the discussion in Walter F. Murphy, James E. Fleming, and
William F. Harris, American Constitutional Interpretation (Mineola, N.
Y. The Foundation Press, 1986), Part 2 "What Is the Constitution?" pp.
176 See Louis Fisher, "Constitutional Interpretation by Members of
Congress," North Carolina Law Review 63 (1985), 707-47, and Louis
Fisher, "The Curious Belief in Judicial Supremacy," Suffolk University Law
Review 25 (1991), 85-116.
177 Matthew J. Franck, Against the Imperial Judiciary The Supreme
Court vs. the Sovereignty of the People (Lawrence University Press of
Kansas, 1996), pp. 208-14.
178 The Federalist Papers, intro. by Clinton Rossiter (New York
New American Library, 1961), p. 229.
179 Kevin M. Stack, "The Practice of Dissent in the Supreme Court,"
Yale Law Journal 105 (1996), 2235-59, at 2246.
180 The Federalist Papers, p. 325.
181 In City of Boerne v. Flores (1997), although split on the
substantive question of church-state separation, the Court was unanimous in its
view that the Court's "exposition of the Constitution" is controlling and
determinative throughout the federal government 138 L. Ed 2d 624, at 638 While
stating that Congress has an obligation to draw its own conclusions regarding
the Constitution's meaning, Justice O'Connor, in a dissenting opinion, said
"when it enacts legislation in furtherance of its delegated powers, Congress
must make its judgments consistent with this Court's exposition of the
Constitution and with the limits placed on its legislative authority by
provisions such as the Fourteenth Amendment." 117 S. Ct. 2157, at 2176.
182 See the dissenting opinion of Justice Breyer in U.S. v.
Lopez, 115 S. Ct. 1624, at 1659.
183 In my view there is reason to question Justice Scalia's statement,
apparently offered as historical description "The American people have been
converted to belief in The Living Constitution, a 'morphing' document that
means, from age to age, what it ought to mean." A Matter of Interpretation
Federal Courts and the Law, p. 47 A more accurate description of the
eclectic-pluralistic constitutional outlook of the late twentieth century is
found in Michael Kammen, A Machine That Would Go of Itself: The Constitution
in American Culture (New York Random House, 1986).
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