In an essay on FindLaw (HT: How Appealing), Columbia law professor Michael C. Dorf defends the “living Constitution”. Dorf argues that “originalists like Justice Scalia either misunderstand or mischaracterize what [the ‘living Constitution’ metaphor] stands for.” According to Dorf, originalists are wrong to contend that living constitutionalists “‘substitute’ their own values for the Constitution’s values, and then use those substituted values as the basis for invalidating legislative action.” On the contrary, Dorf contends, “no serious judge, lawyer or academic argues for that.”
Oh, really? Well, just off the top of my head, how about the Ninth Circuit judge that Dorf clerked for, notorious activist Stephen Reinhardt? In Reinhardt’s words: “The judgments about the Constitution are value judgments. Judges exercise their own independent value judgments. You reach the answer that essentially your values tell you to reach.”
And how about Barack Obama, who informs readers of The Audacity of Hope that he “taught constitutional law at the University of Chicago” for a decade? As I set forth in my new Weekly Standard essay, Obama has explicitly proclaimed that in the “truly difficult” cases (which category is apparently sufficiently malleable to encompass easy cases like Roe v. Wade) “the critical ingredient is supplied by what is in the judge’s heart.”
Reinhardt and Obama are perhaps more candid than many other living constitutionalists, but it’s difficult to see how the rhetoric that the others invoke (e.g., “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life”) is anything more than camouflage for casting their own values in constitutional garb.
Let’s consider now Dorf’s own description/defense of living constitutionalism:
For living Constitutionalists, the act of ratification by people who are long dead, and whose numbers did not include any women or enslaved African-Americans, does not suffice to make the Constitution effective today. For us living-Constitutionalists, the Constitution’s current authority derives at least in substantial part from the fact that we the living people accept it as authoritative. And if our acceptance validates the Constitution, then … the way in which contemporary Americans understand the Constitution’s language should play a substantial role in how the courts interpret that language.
Understood in this way, the notion of a living Constitution is simply an effort to interpret the Constitution, not to replace it. Justice Scalia and others may still have reasons to prefer the dead to the living Constitution, but their core claim—that the dead Constitution is the real Constitution—proves, upon inspection, to be nothing more than an assertion of the power of the dead few to rule the living many from the grave.
This argument is deeply defective in several respects that I will only briefly outline here.
First, as I wrote of Cass Sunstein’s similar argument in my review of his book Radicals in Robes, the claim that the act of ratification by dead white men doesn’t make the Constitution “effective today” has unworkable anarchistic implications. Why should any of us be ruled by statutes that were enacted long ago, or that were enacted before we were born, or that were enacted before we reached voting age? Why, for that matter, should any of us accept the legitimacy of any law that we don’t like and that we didn’t consent to?
Second, few if any of the monuments of living constitutionalism (such as Roe)—not to mention the ongoing projects, like judicial imposition of same-sex marriage—can be seriously defended as judicial efforts to discern “the way in which contemporary Americans understand the Constitution’s language.”
Third, precisely because originalists recognize that the Constitution leaves the broad bulk of policy decisions to the democratic processes, Dorf is wrong to contend that originalism asserts “the power of the dead few to rule the living many from the grave.” It is living constitutionalists who are profoundly undemocratic, as they assert the power of the judicial few to rule the living many (as well as future generations) from the bench.