Construct or Construe

Living originalism? The heart sinks. Is this going to resemble a treatise on secular spirituality or tabloid ethics or some other well-meant oxymoron? To a degree, the despondency is justified. How can you breathe life into a text if its meaning remains what it was in 1787 or 1868? Jack Balkin, who holds one of America’s premier chairs of constitutional law, argues that you can. He is not seeking to recruit diehard originalists to the cause of creative interpretation of the US constitution, or to persuade them and their antagonists that they are all really in the same business. What he sets out to do is to offer an account of modern American constitutional adjudication which, while keeping the fundamentalists at bay, begins with fidelity to the text but recognises that, if it is to continue to be the basis of a living polity, it has to be creatively bodied out as time goes by.

It is a troubling comment on the state of America’s constitutional law and politics that such an enterprise is considered necessary. Its equivalent in Britain would be a book explaining why Magna Carta, while still seminal, does not have the significance it had in 1215. The reason for the difference is that the politicisation of the US Supreme Court, which has the final word on what is constitutional, has collapsed a major part of the distinction between law and politics in the United States and significantly realigned the separation of powers. This was not the doing of the framers of the constitution. It was the Supreme Court itself which, in 1803 in the historic case of Marbury v. Madison, held itself to have the power to determine the constitutionality of congressional legislation. The ambit of the court’s jurisdiction has never been seriously challenged since then. Balkin’s endeavour is to redefine the consequent geometric model – a pyramid with the people at the bottom, state and federal legislatures above them and the federal courts at the top – as an organic democracy in which, almost cyclically, each element respects and influences the others.

To do this, Balkin breaks down constitutional interpretation into the ascertainment of meaning (for example, what ‘speech’ in the First Amendment embraces) and constitutional construction: how do you apply your interpretation? I believe this to be a false dichotomy. You cannot ascertain the meaning of words except in relation to known or supposed facts. The question of what ‘speech’ means in the First Amendment can be discussed only if you ask it in relation to, say, flag-burning. In fact Balkin himself implicitly recognises this by his adoption of a protean mode of constitutional interpretation that embraces both meaning and application. To do this he uses the word ‘construction’ to correspond with the verb ‘to construct’ rather than ‘to construe’. By so doing he not only compounds but expl0its the incomprehension that has beset generations of law students, whose teachers rarely start by explaining that the construction of contracts or of statutes means taking them apart, not putting them together.

Thus he suggests that from ‘interpretation-as-ascertainment’ one proceeds to ‘interpretation-as-construction’, ‘implementing and applying the constitution using all of the various modalities of interpretation: arguments from history, structure, ethos, consequences and precedent’ – arguments from everything, in fact, except contemporary intent as embodied in whatever happens to be the Supreme Court majority. When in the recent hearing of the challenge to Obama’s healthcare legislation Justice Antonin Scalia asked the solicitor general whether the statute satisfied the constitutional ‘necessary and proper’ formula (‘I get that it might be necessary, but is it proper?’), it is doubtful whether he was thinking of what the word ‘proper’ meant in 1787, which was ‘appropriate’ rather than ‘desirable’, and probable that he had in mind his own standard of propriety. The idiosyncrasy is revealing because Balkin’s underlying enterprise is to allow as much literalism as possible into the creativist tent. The total process, he suggests, ‘involves far more than developing doctrines and precedents’: it culminates in ‘activities which build out the American state over time’. Such a collaborative enterprise looks like liberalism on the back foot, which is pretty much where liberalism is at the moment in the US.

Balkin is firm, nevertheless, about keeping conservative originalists out of the tent. These were the people who succeeded for a time in blocking Roosevelt’s New Deal legislation, and who later opposed liberal rulings on civil rights, contraception, abortion and so forth, on the ground that the constitution said nothing in terms about them. But their modern successors are not stupid. The cleverest of them, Justice Scalia, as Balkin acknowledges, has wisely declared himself ‘a faint-hearted originalist’, accepting as he does such developments as the constitutional recognition of centralised economic power which the New Deal cases eventually brought about, despite the certainty that the framers of the constitution would have fallen off their chairs at the idea.

This is in truth a school of legal conservatism, familiar throughout the common law world, which, because it sets high store by precedent, finds itself eventually regarding as authoritative and orthodox decisions it originally denounced as activist and heretical. Balkin rightly points out its intellectual shakiness; but it is actually only slightly shakier, at least in Balkin’s scheme of things, than Earl Warren’s influential stance that the true constitutional mandate to the courts was to preserve both democracy and individual rights, not to comb through the text in a theological belief that it must contain all the answers. Balkin, however, is less ecumenical than this. He sets out to cede as much ground as he decently can to the originalists, provided the originalists will allow him to build a living constitution by constructing it rather than merely construing it.

But originalism can play creativity at its own game. Scalia, discarding appeals to the framers’ actual or supposed intentions, argues for the original meaning of the words on the page as a bulwark against moral slippage. The object of the constitutional prohibition of cruel and unusual punishments, he contends, is to stop a future generation introducing punishments even more cruel that those used at the end of the 18th century – no mere fantasy, you might think, in the days of Bagram and Gitmo. Liberal lawmaking has to face the possibility that what was regarded as cruel in 1791, when the Eighth Amendment was adopted, will not be considered cruel in, say, 2091, and so will be granted legitimacy by a living originalism.

Whether you describe the true judicial enterprise as a search for the framers’ original intent or for the constitution’s original intended application, the attempt at interpretation repeatedly turns out to be a mare’s nest because it has to be carried out in a factual and political context undreamed of by the framers. Indeed, the search is itself question-begging: why would the framers not have intended and expected that their instrument should be flexibly used and adapted by a future society of whose nature and problems they knew they had no conception? The question was asked by Leonard Levy in his classic debunking of originalism, Original Intent and the Framers’ Constitution (1988), a book not discussed by Balkin.

One of the things Levy pointed out was that Reagan’s attorney general, Edwin Meese, was repeatedly using originalist arguments in order to expand presidential prerogative powers and keep them from being controlled by Congress and the Supreme Court. The last Bush administration, Dick Cheney especially, thrived on this doctrine, which academics are developing into a meta-doctrine of executive supremacy that marginalises both the legislature and the courts. Balkin confronts this problem in his final section, ‘The Problem of Constitutional Evil’. In the past, he says, ‘lawyers have used legal-sounding arguments to defend the legality of slavery, Jim Crow and compulsory sterilisation.’ Why only ‘legal-sounding’? These were legal arguments; not only that, they succeeded. Chief Justice Taney’s lead judgment in the Dred Scott case, whose denial of citizenship to slaves and their descendants helped to spark the Civil War, contains perfectly tenable legal logic founded on originalist principles and what seemed to the Court to be self-evident truths about race. The torture memos produced by Bush’s office of legal counsel are ignoble, immoral and arguably plain wrong; but they are legal arguments.

What then, Balkin finally asks, if a politically packed bench, using such arguments, cedes huge tranches of power to an unreviewable presidential prerogative? He postulates this scenario in the wake of a succession of Bush-type administrations, but it could happen in many other ways. Can the system ever correct itself? ‘Ultimately it is a question of design and faith in that design,’ he writes, ‘whether the system of living constitutionalism we have generated through years of construction is a worthy successor to the framers’ idea of separation of powers and checks and balances.’

Here at last is the real issue. Originalism, like the concomitant assault on judicial activism, has always been a stalking-horse. Along with what the historian Lawrence Kaplan called ‘Founder hagiolatry’, it developed during the Cold War as a riposte to the progressivist critique which had dominated the first part of the 20th century and viewed the constitution as an elitist arrangement made by propertied men in their own interests. In the last two generations originalism has been a form of resistance not to judicial lawmaking but to the law that judicial liberals make. With the swing of the judicial pendulum to the right, originalism, as Scalia’s diffidence about it foreshadowed, may well become an embarrassment. If it is now being discarded, Balkin has missed the party.

The great political accident of Eisenhower’s nomination of Earl Warren to the post of chief justice in 1953 (in return for Warren’s clearing the way for Eisenhower’s presidential campaign), followed by a series of overtly liberal judicial appointments, gave the Supreme Court a lawmaking impetus, commonly characterised as activism, which carried it into the early years of this century. One of the intellectual obfuscations of these years, on both sides of the Atlantic, has been the repeated counterposing of activism to self-restraint, as if self-restraint were something different from deciding the same case the other way. Abstaining from redressing a wrong is about as interventionist as it gets.

Where self-restraint does have real meaning is in keeping appellate judges from deciding constitutional questions that they do not need to determine in order to decide the case before them. In 2009, the US Supreme Court, its right wing newly reinforced, took advantage of an appeal brought by Citizens United, a non-profit corporation, to determine whether corporate spending restrictions applied to a campaign they wanted to run, by taking it on themselves to reconsider the constitutionality of the legal limits on corporate interventions in elections. Nobody had asked them to do this, but the outcome has been cataclysmic. In January 2010 – by when Balkin’s text must have been completed, since the decision is not mentioned in it – the court handed down a 5-4 decision holding that the First Amendment forbade any restriction on ‘independent’ interventions in federal elections, and opening the door to a federal circuit ruling that the sums collected and spent for this purpose could not be capped. To accomplish this, the Supreme Court abandoned one of its own precedents (concluding that it was ‘not well reasoned’) and provoked a New Yorker cartoon showing an attorney, arms spread, submitting plaintively to the nine justices: ‘If you prick a corporation, does it not bleed? If you tickle it, does it not laugh?’

More recently that magazine described the Citizens United decision as ‘baby brother to the Dred Scott and Bush v. Gore atrocities’. It could also be described as an essay in living originalism. In the Republican primaries it has enabled corporate and private money to float political action committees (so-called super-PACs) which can now support candidates ad libidinem so long as they remain ‘independent’. Examples are already multiplying of venomous and not infrequently mendacious PAC ads and videos, which the candidate they support can always disown if they go too far or backfire. All the evidence is that Obama is going to face a massively funded negative onslaught, in which fact is routinely swamped by fiction, in the run-up to November’s election. Little wonder that he has denounced the Citizens United decision: originalist or not, it may be his undoing.