Dark Bilious Vapors

The specific metaphor of a living, evolving Constitution arose in the 1920s to explain how a broad view of federal power that came with World War I (and later, the New Deal) was consistent with the American constitutional tradition. The Constitution's words, Justice Oliver Wendell Holmes Jr. wrote in 1920, "called into life a being" whose "development … could not have been foreseen completely by the most gifted of its begetters." Hence we must interpret our Constitution "in the light of our whole experience and not merely in that of what was said a hundred years ago."

Holmes was right: The living Constitution is central to the American constitutional tradition, so central that even its loudest critics actually believe in it. Many Americans fail to realize how much of our current law and institutions are inconsistent with the original expectations of the founding generation. A host of federal laws securing the environment, protecting workers and consumers—even central aspects of Social Security—go beyond the original understanding of federal power, not to mention most federal civil rights laws that protect women, racial and religious minorities, and the disabled from private discrimination. Independent federal agencies like the Federal Reserve Board, the Federal Trade Commission, and the Federal Communications Commission would all be unconstitutional under the original understanding of the Constitution. Presidential authority would be vastly curtailed—including all the powers that the Bush administration regularly touts. Indeed, most of the Bush administration's policy goals—from No Child Left Behind to national tort reform—would be beyond federal power.

Conversely, a vast number of civil-liberties guarantees we now expect from our Constitution have no basis in the original understanding. If you reject the living Constitution, you also reject constitutional guarantees of equality for women, not to mention Brown v. Board of Education and Loving v. Virginia, which struck down laws banning interracial marriage. Liberals and conservatives alike would be discomfited. The original understanding cannot explain why the Constitution would limit race-conscious affirmative action by the federal government, nor does it justify the current scope of executive power.

Even the Supreme Court's two professed originalists, Justices Antonin Scalia and Clarence Thomas, believe in the living Constitution. Scalia's concurrence in Raich v. Ashcroft—this term's medicinal-marijuana case—demonstrates that he long ago signed on to the idea of a flexible and broad national power that came with the New Deal. And Thomas argues for First Amendment protections far broader in scope than the framers would have dreamed of. Both Justices joined the majority in Bush v. Gore, which relied on Warren Court precedents securing voting rights under the 14^th Amendment. There was just one tiny originalist problem with that logic: The framers and ratifiers of the 14^th Amendment didn't think it applied to voting.

Nobody, and I mean nobody, whether Democrat or Republican, really wants to live under the Constitution according to the original understanding once they truly understand what that entails. Calls for a return to the framers' understandings are a political slogan, not a serious theory of constitutional decision-making.
--Jack M. Balkin

Len on 08.30.05 @ 05:50 AM CST