Meaning: The Central Fallacy of Conservative Constitutionalism

It appears that, by now, I’ve missed Constitution Day, which is too bad, as the right ought not be allowed to get away with recasting the day as some paean to an idyllic past that never existed. Senator Hatch’s contribution to that disingenuous goal:

These days, some treat the Constitution as if it were something like the J. Crew catalog, reflecting only the shifting and morphing tastes and fads of the moment. If that is all the Constitution is, then our liberty is no more secure than the Supreme Court’s latest mood swing. [. . .]

The conflict over judicial appointments is really a conflict over two fundamentally different models of judicial power. In one model, which is often called judicial restraint, judges submit to the Constitution. Restrained judges read the words of the Constitution and look to the same authority that provided them, namely, to the people for the meaning of those words. In the other model, which is often called judicial activism, judges control the Constitution. Activist judges read the words of the Constitution but look wherever they wish for the meaning they want to give those words.

Here, the perennial norms of anti-elitism, and the valorization of the outsider, converge to create a curious conclusion: the people, not the government, own the Constitution, dictate its meaning, and therefore foreclose any possibility of updating without formal amendment. This sounds nice, and is representative of the narrative regularly fed to the tea party masses, but as a usable statement, it’s meaningless. What could it possibly mean that judges should look “to the people for the meaning of those words”?

We have to be generous with the Senator to imagine what he was actually trying to say: perhaps that the people, two hundred years ago, pre-committed to certain values; those values somehow bind us unless formally abrogated; and the courts, by interpreting them with less than 100% fidelity, risk overwriting the will of our predecessors.

This is the conservative argument, but as I’ve argued before, it’s actually an empty one. The values to which our forbears wisely committed us aren’t objectively knowable without some interpretive act. No dictionary explains, in sufficient detail, what an “equal protection” is. Recourse to original definitions and narrow historicity, an analysis Scalia performs correctly, provides a semblance of objectivity, but leads to absurd conclusions, and in fact suggests that the “people,” as in, the modern people, have practically no relation to the document.

“Activist” judges solve this problem — for it is a problem, if our governing document no longer reflects us as a people — by recognizing that we weren’t left with a hollow statute, but with a text that serves as a guide, not a complete solution, to the work of governing. The document commits us to vindicating certain values, but the full meaning of those values is to be found by testing their applicability to problems and questions that our predecessors never confronted. This does introduce room for error. But it allows us to see the Constitution not as something we’ve outgrown, that retains relevance only through the amendment process, but rather as a challenge to live up to the promises of liberty and equality we first made to ourselves, in light of a more challenging world. For better or worse, it’s also the only norm of interpretation that actually takes “the people” into account at all.



  1. Is the Cliff Notes of this post, “Originalist bad, Living Constitution Good,” ?

  2. “Hatch, confused.”

    1. I don’t think anyone has ever proven adequatley that a ‘living Constitution’ approach is better than an originalist one. Me personally, I favor the ‘living Constitution’ that is subject to the whims of the day at a very broad level…but there’s a lot of merit to the other side IMO.

    2. Well, I personally think it will always be a mix of the two and they’re not mutually exclusive.

      And since so much of it is left to “judgment”, even one guy’s originalist could be another guy’s living constitution.

  3. Personally, I think we should scrap the whole thing and start over with a new one.

  4. The problem with original intent is determining what it was. There was no official record of the convention; all we have are some notes, mostly Madison along with some others, and in spite of Madison’s diligence, they are incomplete and biased. Then there is the fact that the convention did not create law; the ratification afterward did. The state legislatures did that ratifying and made the law, but to the extent we have records of those debates, we ignore them in Constitutional interpretation. We turn to The Federalist, but it was just one side of a newspaper debate. We ignore the other side, along with the numerous other debates that went on, the public speeches, the private letters, thousands of pamphlets and editorials, etc., etc.

    Any proponent of original intent who is intellectually honest has to admit that most of the documents we use for interpretation are advocacy pieces (and only one side of a debate); that we exclude the vast bulk of the Constitutional debate documents (which have at least as much legitimacy as The Federalist) simply out of arbitrariness and convenience; and that we were to “do it right” and incorporate all these materials into our analysis, there would be nowhere to start and nowhere to end.

  5. […] the head of government goes awry, he is always measured against the Constitution… often erroneously, and subject to a potentially undesirable adversarial quality. But like the British, we, too, can […]

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