A Lethal Blow to Originalism

It's Alive

Can Elena Kagan save the legal left?

Justin Driver

June 22, 2010 | 12:00 am / TNR

In 1997, Justice Antonin Scalia released a slender volume setting forth his judicial vision. In addition to defending originalism, Scalia sought to disparage what he viewed as the then-dominant mode of interpreting the Constitution. “The ascendant school of constitutional interpretation affirms the existence of what is called The Living Constitution, a body of law that ... grows and changes from age to age, in order to meet the needs of a changing society,” Scalia wrote. “And it is the judges who determine those needs and ‘find’ that changing law.” Scalia proceeded to express disgust at the widespread acceptance of living constitutionalism among not only the legal elite, but also ordinary citizens: “The American people have been converted to belief in The Living Constitution, a ‘morphing’ document that means, from age to age, what it ought to mean.”

Today, a mere 13 years later, it would appear that many Americans have changed their minds—and in a way that surely cheers Scalia. Since 2003, Quinnipiac University has conducted a poll asking respondents which theory of constitutional interpretation “comes closer to your point of view”: Should the Supreme Court “only consider the original intentions of the authors of the Constitution,” or should it “consider changing times and current realities in applying the principles of the Constitution?” Although the question’s phrasing contains considerable infelicity, recent responses nevertheless suggest that Americans increasingly embrace originalism over living constitutionalism. In July 2008, 52 percent of respondents favored living constitutionalism and only 40 percent favored originalism. When the poll was conducted in April of this year, however, originalists outnumbered living constitutionalists, 49 percent to 42 percent.

Originalism’s influence is also plainly on the rise where it matters most immediately—at the Supreme Court. Two years ago, in District of Columbia v. Heller, among the Court’s most significant decisions of the last decade, the justices divided 5-4 in determining that the Second Amendment protects an individual’s right to possess firearms in some circumstances. The justices were united, however, in disputing the Second Amendment’s meaning on what was at least purported to be primarily originalist terrain—a circumscribed jurisprudential exchange that would have been difficult to imagine until recently.

Perhaps the most vivid illustration of living constitutionalism’s decline unfolded last summer during Sonia Sotomayor’s confirmation hearings. A common view of the Sotomayor hearings is that they were only the latest in a lengthy series of tediously non-substantive examinations of recent Court nominees. According to this telling, Sotomayor’s testimony fit comfortably within Elena Kagan’s suddenly famous law review lamentation regarding the sorry state of the confirmation process. The hearings that followed Robert Bork’s defeat, Kagan wrote in 1995, “have presented to the public a vapid and hollow charade, in which repetition of platitudes has replaced discussion of viewpoints and personal anecdotes have supplanted legal analysis.”

Sotomayor’s testimony before the Senate Judiciary Committee certainly shortchanged neither the platitudinous nor the anecdotal. But, whereas Kagan bemoaned the absence of substantive engagement that she witnessed ringside during the testimony of Ruth Bader Ginsburg, the principal problem with Sotomayor’s hearings was not that they lacked substance. The real issue was that much of the substance they did contain inflicted affirmative damage to liberals’ constitutional conception. Indeed, in the wake of Sotomayor’s acquiescent performance, liberals should applaud a return to the Ginsburg era. For all of the criticism about her supposed evasiveness, Ginsburg’s hearings left no doubt that she understood the Constitution as an evolving document. Not only did Ginsburg explain how the original understanding of the Fourteenth Amendment’s equal protection clause could not adequately account for the Court’s decisions promoting gender equality beginning in the 1970s, she also twice invoked Benjamin Cardozo’s notion that the Framers intended the Constitution to govern “not for the passing hour, but for the expanding future.”

Following Sotomayor’s nomination, she touted Cardozo as her favorite justice, but his imprint upon her ensuing testimony was indiscernible. When Senator Lindsey Graham asked Sotomayor whether she believed in a living Constitution, she distanced herself from the concept. “The Constitution is a document that is immutable [in] the sense that it’s lasted two hundred years. The Constitution has not changed except by amendment,” Sotomayor explained. “It is a process, an amendment process that is set forth in the document. It doesn’t live other than to be timeless by the expression of what it says. What changes is society. What changes is what facts a judge may get presented.”

In Sotomayor’s defense, the nation is today a good deal more constitutionally conservative than it was when Ginsburg testified. An undeniable part of the reason for this trend, however, is that members of the legal left have demonstrated insufficient intellectual courage in defending living constitutionalism—and insufficient deftness in attacking originalism. Just as figures in the political world have almost completely rejected the word “liberal,” the legal world has largely abandoned the “living Constitution.” Even left-leaning legal academics, who were not long ago the leading advocates of living constitutionalism, have overwhelmingly forsaken the term and instead have proposed a steady series of would-be successors. (Laurence H. Tribe’s The Invisible Constitution may be the most widely known contribution to the growing genre.)

The stakes, in other words, at Kagan’s upcoming confirmation hearings could hardly be higher. Viewed optimistically, liberals can hope that Kagan seizes the occasion to reassert the legitimacy of living constitutionalism. At a minimum, though, the hearings offer a valuable opportunity to halt the alarming slide toward originalism. If, instead, what one prominent conservative gleefully called “the Sotomayor test” becomes established as the new standard for Court nominees, the hearings will represent yet another failure for the liberal judicial vision.



Contrary to popular understanding, neither Earl Warren nor William Brennan dreamt up the notion of living constitutionalism. Over the years, Scalia has repeatedly emphasized that the metaphor of a living Constitution sniffs of a suspiciously recent vintage. “A change occurred in the last half of the twentieth century, and I’m sorry to say that my Court was responsible for it,” Scalia explained in 2008 in a typically lapsarian narrative. “It was my Court that invented the notion of a living Constitution.” Similarly, Scalia has stated that the “living Constitution stuff has been going on since the Warren Court.”

In fact, the metaphor has a lineage that stretches back long before the Warren Court. In 1914, Justice Oliver Wendell Holmes Jr. wrote an opinion describing constitutional provisions as “organic, living institutions,” and, in 1920, he wrote another opinion stating that the Founding generation “called into life a being the development of which could not have been foreseen completely by the most gifted of its begetters.” In 1927, moreover, Howard Lee McBain, a Columbia University professor, wrote a book called The Living Constitution. “However unchanging the form, it is the peculiar virtue of our bills of rights that their substance has changed and is changing,” McBain explained.

Although legal liberals have almost universally eschewed the beleaguered label in recent years, not everyone is prepared to discard it. Last month, University of Chicago law professor David A. Strauss published a book he titled—defiantly—The Living Constitution, which offers a powerful defense of both the idea and the metaphor. Strauss begins by distilling the case against originalism to its bare essence and then explains how the question becomes not whether the Constitution lives, but how the Constitution lives. Scalia has said of his occasional willingness to follow judicial precedent that conflicts with unadulterated originalism, “I’m an originalist—I’m not a nut.” “That way of putting it is disarming,” Strauss writes, “but it seems fair to respond: if following a theory consistently would make you a nut, isn’t that a problem with the theory?” Strauss also skewers Scalia’s familiar declaration that he practices a “fainthearted” originalism. “[I]f you’re going to say that originalism is only sometimes the right approach, then you have to answer at least two other questions,” Strauss explains. “What principle determines when it is right to abandon originalism? And, once you decide not to be an originalist in a certain category of cases, what do you do instead?”

Strauss answers his rhetorical question by insisting that originalists, in the breach, adhere to a version of the living Constitution, which he defines as a document “that evolves, changes over time, and adapts to new circumstances, without being formally amended.” And originalists often find themselves in the breach because the Constitution’s most significant provisions frequently provide little textual guidance. How much process, exactly, is due under the due process clause? Strauss suggests that originalists, by transforming generalities into specifics, disrespect the very Framers they purport to valorize.

Elena Kagan is as capable as anyone of persuasively articulating these ideas in a public forum. Kagan has great familiarity with two of the leading examples that Strauss draws upon to illuminate how the living Constitution works: freedom of speech and the equal protection clause. Kagan knows intimately the role that doctrinal development has played in shaping the modern First Amendment, as she began her academic career by writing in the area. And Kagan’s clerkship for Thurgood Marshall would enable her to extol his legacy as a lawyer who helped to usher in a racially egalitarian conception of the Fourteenth Amendment. (I should disclose here that at least part of my faith in Kagan stems from my professional and personal relationship with her—which dates to when she taught at Harvard Law School and I was her student there.)

At her hearings, Kagan might initiate discussion of the subject by saying, “I generally agree with the statements then-Judge Roberts and then-Judge Alito expressed when they were sitting at this table.” That’s because—while Sotomayor fled from living constitutionalism—the last two Republican nominees to the Court did not. Senator Arlen Specter asked both John Roberts and Samuel Alito whether they agreed with the idea, expressed by Justice John Marshall Harlan’s dissent in Poe v. Ullman (1961), that the constitutional concept of liberty is a living one. Roberts offered a one-sentence response: “I’d agree that the tradition of liberty is a living thing, yes.” Although Alito evaded the question of whether the Constitution embodies evolving values, he nevertheless allowed, “I think the Constitution is a living thing in the sense that matters.” Scalia, by way of contrast, charted a distinct path at his confirmation hearings: “I think it is fair to say you would not regard me as someone who would be likely to use the phrase ‘living Constitution.’”

Some portions of the Roberts and Alito hearings even resonate with passages from Strauss’s book. “When [the Framers] adopt broad terms and broad principles, we should hold them to their word. ... And that means when they have adopted principles like liberty, that doesn’t get a crabbed or narrow construction,” Roberts said. Here is Alito: “The genius of [the Constitution] is that it is not terribly specific on certain things. It sets out some things [that] are very specific, but it sets out some general principles, and then leaves it for each generation to apply those to the particular factual situations that come up.” And here is Strauss: “The genius of the U.S. Constitution is precisely that it is specific where specificity is valuable and general where generality is valuable.”

Having established that even conservatives like Roberts and Alito do not completely disavow living constitutionalism, Kagan could—instead of flatly pledging allegiance to canonical cases like Brown v. Board of Education and pledging contempt for anti-canonical cases like Dred Scott—proceed to explain, in some detail, how these familiar cases fit into the originalist and living constitutionalist paradigms. Regarding Brown, Kagan should note that there is little reason to believe that the ratifiers of the Fourteenth Amendment would have understood the equal protection clause to invalidate racially segregated public schools. The most celebrated decision in the Court’s history contemplated, and rejected, an exclusively originalist constitutional interpretation. “[W]e cannot turn the clock back to 1868 when the Amendment was adopted, or even to 1896 when Plessy v.Ferguson was written,” the Court stated in Brown. “We must consider public education in the light of its full development and its present place in American life throughout the Nation.”

Although the Court decided Brown unanimously, we do have some contemporaneous evidence of how an originalist might have approached the case. The Dixiecrats’ Southern Manifesto analyzed Brown this way: “The original Constitution does not mention education. Neither does the Fourteenth Amendment nor any other amendment. The debates preceding the submission of the Fourteenth Amendment clearly show that there was no intent that it should affect the systems of education maintained by the states.” However mightily modern originalists may struggle to have their theory accommodateBrown, moreover, no amount of struggle can square originalism with Bolling v. Sharpe, a companion case to Brown that invalidated segregation in District of Columbia public schools. Because the Fourteenth Amendment does not apply to the federal government, the Court relied upon the Fifth Amendment’s due process clause to strike down Jim Crow in Washington. Setting aside the considerable textual leaps that are required, an originalist account of Bolling would still need to explain precisely how the Bill of Rights ratifiers opposed racially segregated schooling in 1791—just after they ratified the slavery-legitimating Constitution. None of the foregoing would take Kagan into particularly dangerous waters, as she would be merely highlighting some of the originalist deficiencies that helped to undo Bork in 1987.

Apart from offering meaningful exegeses of decisions that are habitually discussed in confirmation hearings, though, it would be better still if Kagan would affirm other, broadly celebrated opinions as constitutional bedrock. In doing so, she should further articulate how originalism cannot plausibly account for many of our nation’s most treasured decisions. Harper v. Virginia Board of Elections (1966), for instance, features a particularly intense confrontation between originalism and living constitutionalism. In Harper, the Court considered whether states could continue administering the poll tax in state elections. In invalidating the measure, Justice William Douglas’s opinion for the Court made a strong case for the validity of a living Constitution. “[T]he Equal Protection Clause is not shackled to the political theory of a particular era,” Douglas wrote. “In determining what lines are unconstitutionally discriminatory, we have never been confined to historic notions of equality. ... Notions of what constitutes equal treatment for purposes of the Equal Protection Clause do change.”

As with Brown, the originalist take on Harper, provided by Justice Hugo Black’s dissent, now seems unacceptably wooden: “The Court’s justification for consulting its own notions rather than following the original meaning of the Constitution, as I would, apparently is based on the belief of the majority of the Court that for this Court to be bound by the original meaning of the Constitution is an intolerable and debilitating evil.” By singingHarper’s praises, while making clear that she does not necessarily subscribe to the notion that wealth is a suspect classification, Kagan would admittedly invite a senator to assert that the Constitution—properly understood—permits states to prevent poor people from voting. But, if the firestorm that recently engulfed Rand Paul offers any indication of the public’s appetite for the fine parsing of widely revered constitutional understandings, it seems doubtful that even one senator would accept that invitation.

Kagan’s embrace of living constitutionalism might have the happy byproduct of generating a frank acknowledgement that the act of judging—at least on occasion—calls for the exercise of judgment. Contrary to Roberts’s judge-as-umpire analogy and Sotomayor’s decidedly unphilosophical contention that her “judicial philosophy” could be summed up simply as “fidelity to the law,” many esteemed legal authorities (including judges) have long recognized that judicial decisions sometimes do not yield plainly right and plainly wrong answers. Justice David Souter’s Harvard commencement address this month wisely revived that notion. Reasonable judicial minds can reach different legal conclusions, especially in cases that reach the Supreme Court. When the justices divide 5-4, it seems implausible that one of the two sides invariably either is composed of bad judges or is operating in bad faith.



Quite apart from validating living constitutionalism, the left also should dedicate greater energy to vanquishing originalism. The political right has consistently outmaneuvered the political left in attacking the opposition’s preferred method of constitutional interpretation. Understanding that the best defense is often a good offense, the right has honed accessible shorthand for caricaturing the legal approach of liberals. George W. Bush’s mantra during much of his presidency praised judges who would not legislate from the bench, judges who understood the difference between making law and interpreting law. Alas, the left currently lacks a pithy critique of originalism.

Democrats might begin to mount such a critique by drawing inspiration from history. As Jeff Shesol demonstrates in Supreme Power, his compelling account of the 1930s Court-packing plan, Franklin Roosevelt leveled withering assessments of judicial interpretation excessively bound by history. When the Court initially interpreted the commerce clause in a historically contingent fashion in finding that early New Deal legislation exceeded congressional power, Roosevelt famously complained, “The country was in the horse-and-buggy age when that clause was written.” In 1926, well before that episode, Roosevelt mocked conservatives’ penchant for nostalgia. “My old neighbor on the Hudson River, Rip Van Winkle, went soundly asleep, and seemed annoyed, on waking up many years later, to find that the world was very different,” FDR explained. “Rip has many successors today. ... They have not been physically asleep, but they have come to view the world with eyes of the past.” Roosevelt thus provides at least two options that a Democrat might try out on the stump: labeling originalism “the horse-and-buggy Constitution,” or, alternately, designating it “Rip Van Winkle’s Constitution.”

Perhaps the most effective way to pan originalism in today’s political climate, though, is the most obvious. “At first blush it seems certain that a living Constitution is better than what must be its counterpart, a dead Constitution,” Justice William Rehnquist wrote in a 1976 article (which proceeds to attack living constitutionalism as undemocratic). “It would seem that only a necrophile could disagree. If we could get one of the major public opinion research firms in the country to sample public opinion concerning whether the United States Constitution should be living or dead, the overwhelming majority of the responses doubtless would favor a living Constitution.” Assuming Rehnquist’s prediction holds 34 years later, the living Constitution, so widely understood to lack a pulse, might well experience a resurrection.

Justin Driver is an assistant professor at the University of Texas School of Law.