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07/02/2020

Eric Segall: Is Living Constitutionalism our Law?
Michael Ramsey

At Dorf on Law, Eric Segall: Is Living Constitutionalism our Law? A Response to Charles Barzun and Jack Balkin.  From the introdcution:

Last Wednesday I had the great privilege of recording my first Supreme Myths Podcast/Video with Yale Law Professor Jack Balkin. Also last week, Professor Charles Barzun completed a three-part series on Balkinization on living constitutionalism and originalism. Both Balkin and Barzun share some common views about constitutional interpretation, judicial review, and the relationship between originalism and living constitutionalism that I will address in this post.

Both Balkin and Barzun believe that constitutional law is deeply affected by much more than just the Constitution's original meaning. ...

But Balkin also believes the Constitution's adaptability in the hands of judges is consistent with originalism (hence the title Living Originalism). In his view, the original Constitution sets forth rules, standards, and principles, and when the non-rule parts of the Constitution are litigated, judges should, indeed, must, treat them them as licenses to effectuate constitutional change. ... 

Barzun tells a similar story. He argues that the Supreme Court does not generally explain its decisions through pure moral reasoning or through reference to its own or our system's democratic legitimacy. ...

At the end of his blog post comes the kicker. Barzun, like Balkin, suggests that all of this change (living constitutionalism) is justified by the meaning of our original Constitution. He says the

approach I’ve just described has such a pedigree, as do the constitutional doctrines it has yielded. Those doctrines fit naturally with originalism because they are conceptualized as changing applications of constitutional principles in light of new facts—or new understandings of facts.... It is our law, and judges take an oath to support it.

And from the core of the argument:

There are at least two major objections to the general idea that living constitutionalism is authorized by the Constitution's original meaning. The first one is purely historical. As I detailed in my book Originalism as Faith, historians have shown that the framers both expected and wanted highly deferential judicial review. ...

Neither Balkin nor Barzun, nor most other originalists today, have wrestled with this problem (the original originalists didn't have this problem). The idea that judges should either pave the way for, or be the agents of, constitutional change would have shocked most of the founding generation. Professor Jud Campbell captured this idea beautifully in a magnificent article on how today's law of free speech has nothing to do with the first amendment's original meaning because the founding generation did not equate having rights, even natural law rights, with judicial enforcement of those rights. Strong, non-deferential judicial review may be good or bad, right or wrong, but it is not consistent with the original Constitution.

The second objection focuses more on today than yesterday. Both Balkin and Barzun describe the process of constitutional change richly and accurately. But neither fully address what Professor Christopher Sprigman has called the "making it all up" problem. Or, as Dean Erwin Chemerinsky observed in the Harvard Law Review Foreword in 1988, the Court's constitutional law decisions are nothing more or less than the aggregate of the value preferences of the Justices. ...

If my descriptive account is accurate, a real question is why society today would defer to unelected, life-tenured, elite lawyers to impose their values on the rest of us. ...

I agree with pretty much all of this, except: I think the Framers did believe in robust judicially enforceable rights, but they were the textual rights spelled out in the Constitution or the traditional rights incorporated by reference (as with the First Amendment).