Living Constitutionalism for the Formalist, Pt. 2

Besides its comparative advantages over originalism in the above respects, [n.1] CMF avoids certain positive disadvantages of originalism.

For instance, as between CMF and originalism, it's fairly clear that the former more reliably leads to just or desirable outcomes. Indeed, it's widely acknowledged [n.2] that in certain classes of issues, the original understanding produces unjust or undesirable outcomes systematically: Dred Scott; the Court's modern free speech jurisprudence; New Deal legislation; federal civil rights legislation; legislation creating independent federal agencies; and so forth. It is no coincidence that CMF is more "progressive" in this way, of course, since CMF tracks the natural course of language as it progresses through time. [n.3]

CMF also avoids a methodologically vicious tautology inherent in "framers intent" originalism. [n.4] The tautology derives from the fact that the best evidence we have of framers' intent is often their contemporaneous legislative acts and judicial opinions. The originalist interpretive argument here is that since the framers knew better than anyone what they meant by their constitution, then if they enacted a law or issued an opinion that is consistent with a given constitutional provision on some interpretation A but inconsistent with that provision on interpretation B, we should infer that they intended A. Now, this approach seems reasonable -- until one realizes that it renders the prospect of the framers' enacting unconstitutional legislation something close to a logical impossibility: Founding era legislators and judges could have been nothing other than "faithful" to their expressed ideals because by hypothesis their legislative acts and judicial opinions defined the faith. [n.5]

In sum, then, CMF is a type of living constitutionalism that not only challenges originalism on its own terms but also carries with it its own distinctive set of substantive and methodological advantages. We can jettison original meanings and still engage in interpretations that are "principled" along the very same dimensions originalism claims are its exclusive selling point. And we can anticipate outcomes that are more in keeping with modern moral and political expectations. (It's a floor wax and a dessert topping.)

NOTES

1. Unfortunately, these advantages are often grossly oversold. For instance, the claim that in the absence of semantic objectivity we would be left with a "bevy of Platonic guardians" (or the like) is transparently bogus. Even in the face of radical indeterminacy, justices would still be constrained by conscience, institutional identity, peer review, professional norms and the prospect of impeachment. The fact, then, that a given theory of constitutional interpretation doesn't "constrain" judges according to some proprietary criteria is obviously an insufficient reason to disfavor that theory.

2. Even originalist Justice Scalia has been led in a subset of these areas to be somewhat faint of heart when it comes to the assiduous application of his favored interpretive theory. Though Scalia himself wouldn't necessarily say that he's "acknowledged" such systematic injustice as the reason for his faint-heartedness, his express condition for departure from an established rule -- that an "evolution in social attitudes has occurred" -- nonetheless suggests he endorses prudential deference to robust consensus judgments about justice that might deviate from the original understanding (at least when he's among those in the consensus).

3. I'm presupposing here that both common (lay) and professional lexicons have "natural" careers, though the pressures that shape and guide them are distinctive. More on this later.

4. The "tautology" is obviously not pure, since there is other textual evidence (e.g., private correspondence) that originalist interpreters can turn to that isn't as likely to be beset with politically-induced distortions. But to the extent that contemporaneous legislation is the only, or best, evidence available, there is something of the vicious circle I describe above inherent in framers' intent originalism.

On the other hand, framers' intent originalism has been for the most part been supplanted by the popular meaning variety, so CMF's escape from tautology is not so impressive or distinctive an advantage. Still, the tautology problem is worth marking in case there is ever a relapse.

5. You could say that George W. Bush himself (admittedly no constitutional expert, he) tacitly argued against this version of originalism, then, when he noted: "Every day our nation was segregated was a day that America was unfaithful to our founding ideals." (Good to know he recognizes the possibility.)