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06/11/2020

Barzun on Originalism and Living Constitutionalism
Mike Rappaport

Over at Balkinization, Charles Barzun criticizes originalism.  I am not sure that I understand his argument entirely, so I will just give some specific responses.  Barzun’s words are indented.  Mine are not indented.

It is an essential feature of the Constitution that it is the kind of thing that is amenable to different but proper interpretations over time, and it is in virtue of that amenability to change that (at least in part) it compels our obedience to it as our fundamental law.

I mainly disagree with this, especially the first part of the sentence (the nonitalized part).  The Constitution is the kind of thing that is correctly interpreted only in one way.  It is true that sometimes the answers are not clear.  And in those situations, a court may make a mistake, and later courts may follow that interpretation.  But that is not because the mistaken interpretation was “different but proper.”  Rather, it is because our precedent rules sometimes require that we follow mistaken interpretations in order to protect other interests such as reliance.

My suggestion is that this last, italicized phrase [ed, the italicized portion above] contains the essential nugget of living constitutionalism.  In philosopher’s lingo, it amounts to the claim that the Constitution’s adaptability to changed circumstances—precisely its “living” quality—is what grounds (at least in part) its normative claim on us.  I qualify it with “at least in part” because the Constitution (and its interpretations) must clearly satisfy some minimal threshold of moral adequacy in order to compel obligation.  But the basic idea is to stress the moral significance of the Constitution’s responsiveness to social, political, and economic change.  Let’s call this claim the adaptability claim.

I agree that, as a normative matter, the adaptability of the Constitution to changing values and circumstances is important.  But Barzun completely ignores the Amendment Process.  That is how the Constitution is to be adapted to new values and circumstances, when such adaptation is needed.  In fact, as John McGinnis and I show, living constitutionalism undermines the Amendment Process, largely preventing it from operating.       

At first blush, the adaptability claim seems to be nearly the opposite of what originalists argue, which is that the Constitution’s current authority derives primarily from the continuity it establishes between the law today and the founding (though they, too, would likely acknowledge the need for some minimum moral threshold).  Thus, the adaptability claim seems to be a meaningful claim and a genuine rival to originalism.

Yes, I agree with that, although Barzun will take it back in his next paragraph.

But it’s not hard to see that the adaptability claim just restates the traditional theory of the common law, according to which the law evolves through case-by-case adjudication.  If that’s right, then even originalists are committed to the adaptability claim, for every time a judge decides a constitutional case (or refuses to do so) the Constitution has either adapted or failed to adapt.  And who would deny that the Court should respond properly rather than improperly in such cases?  Surely Chief Justice John Marshall had something like this idea in mind when he famously insisted that “we must never forget that it is a constitution we are expounding.”  And that’s true even if the proper response was to rule the Bank of the United States unconstitutional.

Unless I am misunderstanding Barzun here, I believe he is mistaken here.  First, even assuming that the common law has this adaptability quality, the Constitution is not the common law.  It is a controversial, and I think erroneous claim, to view the written Constitution as common law.

Second, Barzun’s interpretation of Chief Justice Marshall’s statement that “we must never forget that it is a constitution we are expounding,” while a common one, is by no means clearly correct.  As John McGinnis and I argue in this article:  “While Marshall certainly addresses the problems of allowing future decision makers to respond to new circumstances, his argument is not that the Constitution should be adapted to mean whatever those future decision makers believe it should mean. Instead, he argues that this problem of anticipating future circumstances requires that Congress be given broad authority so that it can choose among the means.”  Moreover, we add that “it is significant that the . . . interpretation [followed by Barzun] was not one that was followed by the courts at the time.  During the nineteenth century, this quote was never cited to support the view that the meaning of the Constitution could change over time.”  It was only during the New Deal that it came to mean what Barzun thinks it means.