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05/15/2017

Larry Solum's Legal Theory Lexicon: 'Living Constitutionalism'
Michael Ramsey

At Legal Theory Blog, Larry Solum has a new entry in his Legal Theory Lexicon: Living Constitutionalism.  Here is the introduction:

Constitutional discourse in both the academy and the public sphere has recently included quite a bit of talk about "originalism."  But what about originalism's great historical rival, "living constitutionalism?"  What is living constitutionalism and how is it different from originalism?  A preliminary answer to that question can be offered in the form of a simple definition:

Living Constitutionalism:  Living constitutionalism is the view that the legal content of constitutional doctrine does and should change in response to changing circumstances and values.

This entry in the Legal Theory Lexicon will examine the history of living constitutionalism, discuss the question as to how and whether it differs from originalism, and briefly explore some of the main forms of contemporary academic living constitutionalism.  As always, the Lexicon provides a short introduction to a concept in legal theory for law students.

And from the section entitled "Living Constitutionalism versus Originalism":

Like other theoretical terms, "living constitutionalism" and "originalism" have meanings that are disputed.  This means that some theorists are likely to offer definitions for these terms that make it true (as a matter of definition) that living constitutionalism and originalism are mutually exclusive, where as other theorists may embrace the possibility that some moderate forms of living constitutionalism are compatible with originalism.  The most prominent example of compatibilism is Jack Balkin's theory, which he explicated and defended in his book, Living Originalism.

The following definitions of "living constitutionalism" and "originalism" illustrate the possibility of compatibilism:

Originalism:  A constitutional theory is "originalist" if it affirms (1) the fixation thesis (the linguistic meaning of the constitutional text is fixed at the time each provision is framed and ratified), and (2) the constraint principle (the fixed original meaning should constraint constitutional practice).

Living Constitutionalism: A constitutional theory is "living constitutionalist" if it affirms that the legal content of constitutional doctrine does and should change in response to changing circumstances and values.

Nonoriginalism: A constitutional theory is "nonoriginalist" if it denies either the fixation thesis or the constraint principle.

Given these definitions, "living originalism" is a conceptual possibility if it is the case that the fixed original meaning of the constitutional text underdetermines at least some questions of constitutional doctrine.  Such underdetermination may occur if the constitution contains provisions that are vague or open textured.  Such provisions could be said to create "construction zones," areas of doctrine where the linguistic meaning of the text would need to be supplemented by precisification or default rules.  Thus, if some living constitutionalists accept that the constitutional text is binding when it is clear, then they could embrace originalism as to some issues while affirming that constitutional doctrine should evolve with respect to others.

Some originalists may reject the idea of compatibilism.  For example, some originalists may embrace the proposition that the constitutional text is fully determinate and hence that embracing the constraint principle entails that constitutional doctrine does not change.  It is important to remember that this kind of determinacy does not entail the further conclusion that constitutional applications are fixed.  Thus, one can believe that the original meaning of the Second Amendment creates a rule that forbids government regulations that ban the possession of weapons that can be carried by a person, but reject the idea that the category of weapons is limited to weapons that existed in 1791 when the Second Amendment was adopted.

If you accept the definitions offered above, then compatibilism and hence "living originalism' is at least a conceptual possibility.

As Professor Solum would say, "Highly Recommended."