The Living Constitution

Elena Kagan, like all the other recent nominees to the Supreme Court bench, has had to contend with questions about how strictly she’d stick to the Constitution. As David A. Strauss explained, many people seem to think that the Constitution should be interpreted rigidly – sticking as closely as possible to the framers’ intent – while others think it should be completely flexible. “It bothered me that a lot of people, including pretty sophisticated people, seemed to think that, in interpreting the Constitution, we are faced with a really unattractive choice,” he said. Strauss, author of The Living Constitution, takes a different approach, as he discusses below, arguing against the “originalism” of Justices like Antonin Scalia.

Q. What inspired you to write The Living Constitution?

The Living Constitution, by David StraussA. “Inspired” might not be the right word – maybe “troubled” is more like it. I The choice, people think, is either to interpret the Constitution very rigidly, in the way it would have been interpreted when it was written centuries ago; or just to turn judges loose to interpret it in any way they like. Who wants to have to make that choice?

I thought that there must be other ways to approach our Constitution. In fact, I think we do approach it in a way that doesn’t fall into either of those traps, and in the book I try to say what it is that we actually do.

Q. How important is the Constitution to law today? What is its role?

A. It’s important because it sets out the fundamental principles of our system of law and government. Of course there are lots of very important laws besides what’s in the Constitution. But even those are in a sense built on top of the Constitution, in the way a building rests on its foundation.

Q. What is originalism, and who are its advocates on the Supreme Court?

A. Originalism, in its strictest form, is the first of the two unattractive options I mentioned earlier. It’s the idea that when we are trying to figure out what the Constitution requires, we should look only one place: to the decisions made by the people who adopted the constitutional provision we’re interpreting. Whatever they thought back then, we should do today. Since the most important provisions of our Constitution are more than a century old – many of them, of course, more than two centuries old – that is a pretty daunting task, in my book. On the current Supreme Court, Justices Antonin Scalia and Clarence Thomas would describe themselves as originalists.

Q. What do you argue are the flaws of originalism?

A. Three things. First, sometimes it’s just hard to figure out what they thought they were doing when they adopted some provision of the Constitution. We might have a general idea – when they adopted the First Amendment, which says that the freedom of speech can’t be abridged, they were obviously concerned with the right of people to speak freely. But what did they think about, say, limits on the amount of money people can spend to support a candidate in an election, or about people who stage loud demonstrations at funerals? We just can’t tell what they thought about specific issues like that, back then – maybe they themselves, back then, didn’t have a clear idea. After all, they had a lot on their plate when they were writing the Constitution, and they couldn’t think through and resolve every possible issue.

The second problem is that even if we knew exactly what they were thinking back then, we would have to apply their thoughts to our world – and our world is very different from theirs. So even if we know exactly what they thought about freedom of speech in 1791, when the Bill of Rights was adopted, we might have to decide a case today that is about telecommunications or the Internet. It’s just not that helpful, I don’t think, to start speculating about what James Madison might have thought about, say, spreading private information about people on the Internet.

The third problem is one that Thomas Jefferson himself talked about when the Constitution was being written. The people who wrote and adopted the most important parts of our Constitution are dead and gone, and have been for a long time. The world belongs to the living, Jefferson said. What right does that past have to rule over us today? I think that’s a hard question to answer.

Q. What are some of the rulings that have come to be more foundational than the exact text of the Constitution, if any?

A. Every constitutional ruling by the courts has some connection to the text. That’s important. But the text is the starting point – it doesn’t give all the answers. There are many, many examples of rulings that are now accepted by everyone but that are only one among many possible interpretations of the text. Even the case that, in a way, started all of this – the Supreme Court’s ruling in 1803 that it had the power to strike down federal laws it thought were unconstitutional, Marbury v. Madison – even that ruling does not have a particularly clear basis in the text.

Q. How important is it for Supreme Court justices to stick to precedent?

A. I think precedent is what actually limits the Court and prevents the second disaster scenario I described in my first answer – a situation in which the justices can just do what they want. There are many provisions of the text that are worded in a general way; just telling the justices to follow the text leaves them with tremendous leeway to impose their own views on the rest of us. And the originalists’ solution – insisting that the judges follow the ideas of the people who wrote and adopted the Constitution – doesn’t really work, for the reasons I said. So I think our system, in important areas, really is based more on precedent than on anything else.

Q. What are some of the dangers or problems of a living Constitution? Is it unstable, or undemocratic? How would you answer such charges?

A. The approach to the Constitution that I describe – one that’s based mostly on precedent – often does not have clear, black-and-white rules. It requires judgment. Whenever you rely on judgment, you run the risk that people will make mistakes, or even abuse their power. But what I’d say in response is that judgment is inevitable – the world is just too complex to have black-and-white rules for everything. And as long as people are going to be exercising their judgment, we are better off having it done openly and candidly, rather than have judges pretending that they’re just doing what the Founding Fathers told them to do, when in fact that’s just not possible.

If democracy means majority rule, then our Constitution is undemocratic in some ways – no doubt about it. Part of what the Constitution does is to keep the majority from squashing the minority in certain ways, such as by preventing a minority political party from speaking or by discriminating against racial or religious minorities. But that’s just a feature of our Constitution; it’s not peculiar to a precedent-based approach to constitutional interpretation. And, of course, most of us think it’s a good feature of our Constitution.

*Photo courtesy Mr. T in DC.


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