The Originalist Challenge to the Living Constitution
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 twentieth century.
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 Amendment.
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 Constitution."13
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 law.
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 to."22
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 circumstances change.24
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 order.25
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 truth.28
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 scholars.
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 original intent.30
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 living constitutionalism.
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 constitution.34
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 Constitution."35
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 choices."38
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 away."40
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 constitutional debate.42
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 policy.44
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 democracy.45
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 countermajoritarian difficulty.
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 making.47
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 social life."49
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 undemocratic.52
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 nonoriginalism.
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 the Framers.
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 Framers.56
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 liberalism.59
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 people.
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 constitutionalism.
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 destiny."74
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 text."83
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 amendment.87
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 practice.
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 written Constitution.
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 the Constitution.103
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 it.107
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 democracy.109
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 morality."116
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 the 1990s.
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 interpretation.120
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 façade 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 mean.134
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 practically inconsequential.
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 and arbitrary.135
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 constitutionalism itself.
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 programs.147
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 scheme.150
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 case.155
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 Nation."161
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 century.
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 wars.173
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 seen.
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), 33-34.
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. 8-9.
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, 1990.
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), 843-94.
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, 1988-89), 10-21.
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., p. 10.
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 Constitution.
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 105-06.
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. 81-183.
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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