This is the eighth post in a series (Part One, Part Two Part Three Part Four Part Five Part Six Part Seven Part Eight Part Nine) that replies to Stephen Griffin’s generous comments about Semantic Originalism on Balkinization.
Originalist theories all share a commitment to the fixation thesis–the claim that the linguistic meaning of the Constitution was fixed at the time each provision was framed and ratified. This idea seems, on the surface at least, to be inconsistent with the notion of a living constitution, which has been played an explicit role in constitutional theory since the early 1960s.
And that brings us to Griffin’s eighth question:
8. One important similarity among the originalist theories offered by Whittington, Barnett, and Solum is that they all end, in one form or another, by discussing the need to amend the Constitution when original meaning runs out. As the quotes above demonstrate, Solum thinks judges should frankly acknowledge when they are amending the Constitution. But suppose there were reasons why we have not typically responded, especially in the twentieth century and since the New Deal, with amendments to ratify fundamental changes in our constitutional order. Suppose those reasons were internal to the Constitution as a rule of law and exposed the more complex and uncertain features of the functioning of our constitutional system. Suppose we started not only from the reality that amendments are off the table as a practical matter but from the insight that this is generally a good thing (see Eisgruber’s 2001 book) or to be regretted but necessary to the new democratic constitutional order founded by the New Deal (see my book!). Then we might have a start on explaining, as I think Solum cannot, some central features of contemporary judicial practice. We would also have a purchase on understanding how ideas of the “living Constitution” became real and credible.
Griffin’s question implicates the big questions of contemporary constitutional theory, including the relationship between the New Deal and Living Constitutionalism. Griffin also raises Christopher Eisgruber’s Constitutional Self-Government and his own American Constitutionalism. That’s a large agenda for a single blog post, but let’s have a go.
The New Deal and the Warren Court
Telling the tale of the New Deal Supreme Court is no easy trick. We all know the basic story. As Roosevelt’s appointments began to transform the composition of the Court, New Deal legislation was upheld under the Commerce Clause in cases like NLRB v. Jones & Laughlin Steel, United States v. Darby, and Wickard v. Filburn. In a way, these cases have become Delphic–we read them in light of our contemporary constitutional assumptions and agendas. One of the best scholarly treatments of this period is Kurt Lash’s important article The Constitutional Convention of 1937: The Original Meaning of the New Jurisprudential Deal. Lash notes that while the Court embraced Chief Justice Hughes’s "changed circumstances" theory in Jones and Laughlin Steel, a different rationale emerged in Darby:
In the 1941 case United States v. Darby, a unanimous Court embraced the “now classic dissent of Mr. Justice Holmes, ” reversed Hammer v. Daggenhart, and upheld federal regulation of hours and wages. Abandoning the “ changed circumstances ” rationale of now-retired Chief Justice Hughes,134 the Court refused to read the Tenth Amendment beyond its specific terms and linked the new vision of commerce power to the intentions of the Founders:
The [Tenth] amendment states but a truism that all is retained which has not been surrendered. There is nothing in the history of its adoption to suggest that it was more than declaratory of the relationship between the national and state governments as it had been established by the Constitution before the amendment or that its purpose was other than to allay fears that the new national government might seek to exercise powers not granted, and that the states might not be able to exercise fully their reserved powers. See e.g., II Elliot’s Debates, 123, 131; III id. 450, 464, 600; IV id. 140, 149; I Annals of Congress, 432, 761, 767-768; Story, Commentaries on the Constitution, §§ 1907-1908.135
Instead of justifying the expansion of government power as a response to changed circumstances or popular mandate, the Court insisted it had recovered the originally intended meaning of federal power: “From the beginning and for many years the amendment has been construed as not depriving the national government of authority to resort to all means for the exercise of a granted power which are appropriate and plainly adapted to the permitted end. Martin v. Hunter’s Lessee; McCulloch v. Maryland . . . . ” The next year, in Wickard v. Filburn, the Court continued the same theme, stating: “At the beginning Chief Justice Marshall described the federal commerce power with a breadth never yet exceeded. Gibbons v. Ogden. He made emphatic the embracing and penetrating nature of this power by warning that effective restraints on its exercise must proceed from political rather than from judicial processes.”
Bruce Ackerman has labeled this attempt to justify the New Deal expansion of federal power on the intentions of the Founders a “ myth of rediscovery. ”
As Lash notes, it is not clear that the originalist turn in Darby and Wickard is warranted by the evidence, and it would certainly be anachonistic to read contemporary originalist theories back into these New Deal cases. But what Kurt clearly establishes is that these cases are not plausibly read as crafting a theory of "living constitutionalism" or a proto-theory of that notion using the idea of "changing circumstances". And of course, we all know Carolene Products famous Footnote Four, with its presumption of constitutionality and its emphasis on the need to find textualist foundations for individual rights.
I do not mean to imply that the New Deal court was "no big deal." Of course, it was. Indeed, the New Deal was such a "big deal" that Bruce Ackerman argued that its jurisprudence was warranted by a "constitutional moment" in which FDR acted as the tribune of "We the People" and used "transformative appointments" to institute a new constitutional regime. But the rhetoric of the new regime was not "living constitutionalism." That idea emerged later in connection with the Warren Court. It was Brown v. Board and Griswold v. Connecticut that created the need for a new constitutional theory that would reconcile the New Deal’s rejection of Lochner with the Warren Court’s new fundamental rights jurisprudence. And that brings us to "living constituitonalism."
Semantic Originalism and Living Constitutionalism
What is Living Constitutionalism? One of the first formulations was provided by Charles Reich in his 1963 article, Mr. Justice Black and the Living Constitution:
[I]n a dynamic society the Bill of Rights must keep changing in its application or lose even its original meaning. There is no such thing as a constitutional provision with a static meaning. If it stays the same while other provisions of the Constitution change and society itself changes, the provision will atrophy. That, indeed, is what has happened to some of the safeguards of the Bill of Rights. A constitutional provision can maintain its integrity only by moving in the same direction and at the same rate as the rest of society. In constitutions, constancy requires change.
Another influential formulation of living constitutionalism was offered by Justice William Brennan:
To remain faithful to the content of the Constitution, therefore, an approach to interpreting the text must account for the existence of the substantive value choices and must accept the ambiguity inherent in the effort to apply them to modern circumstances. The Framers discerned fundamental principles through struggles against particular malefactions of the Crown: the struggle shapes the particular contours of the articulated principles. But our acceptance of the fundamental principles has not and should not bind us to those precise, at times anachronistic, contours. Brennan’s formulation could be glossed in a variety of ways.
If you read these passages closely, you will see that they are ambiguous. Do living constitutionalists advocate the power of the Supreme Court to override the semantic content of the constituton? Or are they saying something else–that constitutional construction (of the abstract and vague provisions of the Constitution) evolves over time? Depending on how we resolve the ambiguity, we can view living constitutionalism as "compatable" or "incompatable" with semantic originalism.
The compatabilist story about the relationship between living constitutionalism and originalism can be articulated via the distinction between constitutional interpretation and constitutional construction. Compatibilism could be the view that originalism and living constitutionalism have separate domains. Originalism has constitutional interpretation as its domain: the semantic content of the constitution is its original public meaning. Living constitutionalism has constitutional construction as its domain: the vague provisions of the constitution can be given constructions that change over time in order to adapt to changing values and circumstances.
If living constitutionalism accepts the fixation thesis, some theory of semantic content, and some version of the contribution thesis, then living constitutionalism is committed to the idea that the Constitution provides constitutional law a hard core. Metaphorically, the idea of a hard core might be expressed in terms of materials. Living constitutionalists might see the hard core as made of wood, hard enough to constrain and bind but capable of change in response to the saws of amendment and the chisels of enduring constructions. Let us call this kind of living 
constitutionalism hard core living constitutionalism.
Jack Balkin has demonstrated that hard core living constitutionalism is compatible with originalism. But some living constitutionalist may deny that there is a hard core. They might believe that even the core of constitutional law is malleable and subject to manipulation. That is, they might assert that the living constitution has a soft core. Once again, we might express this idea through a metaphor. We can think of a soft core in terms of silly putty and not wood: silly putty can take on a shape in response to manipulation, but it offers only slight resistance, easily giving way to the warm hands of the Justices. We can call the version of living constitutionalism soft core living constitutionalism.
What then about incompatibilism? The incompatibilist story assumes that originalism and living constitutionalism compete for the same domain. In the case of semantic originalism, that domain must be limited to constitutional interpretation. Hence, the incompatibilist story must interpret living constitutionalism as a theory of content. One possibility is that living constitutionalism is a theory of semantic content. That is, living constitutionalists could be understood as denying the fixation thesis and asserting that the semantic meaning of a given constitutional provisions changes in response to changing circumstances. This view is simply false. Supreme Court decisions cannot change the meaning of the constitution.
Eisgruber’s Constitutional Self-Government
Griffin’s eighth question asks that I comment on Christopher Eisgruber’s important book Constitutional Self-Government. That book is rich, and I can’t even begin to summarize it in a paragraph or two–much less offer a full response. What I would like to do is suggest that Eisgruber comes very close to endorsing "semantic originalism" although he would not call himself an "originalist."
Here is the crucial passage:
As Dworkin points out, the argument over originalism has nothinbg do do with whether interpreters must honor the linguistic intentions of the framers or ratifiers. Everybody agrees that interpretation must honor the framers’ linguistic intentions.
Understanding what Eisgruber means in this passage is a bit tricky. Eisgruber is relying on Dworkin. Here is the relevant passage from Dworkin’s essay, Bork’s Jurisprudence:
I must begin by emphasizing a distinction rarely explicit in discussions of the original understanding thesis, but which is, I think, essential to understanding its vulnerability to the objection I shall describe. The thesis insists that judges should interpret the Constitution to mean only what the framers intended it to mean. But the framers had two very different kinds of intention that, in very different senses, constituted what they meant. They had linguistic intentions, that is, intentions that the Constitution contain particular statements. They also had legal intentions, that is, intentions about what the law would be in virtue of these statements.
The core point of this passage is the distinction between semantic content (or the linguistic meaning of constitutional text) and legal content (the rules of constitutional law). Dworkin and Eisgruber believe that the "linguistic intentions of the framers" uncontroversially determine the semantic content of the Constitution. That theory is actually false–as I demonstrate at length in "Semantic Originalism." Ironically, on this question Dworkin and Eisgruber endorse the "Old Originalism" of Robert Bork and Raoul Berger with its emphasis on the original intentions of the Framers. So when Eisgruber says "Everybody agrees that interpretation must honor the framers’ linguistic intentions" he is flat out wrong. I disagree, and New Originalists like Balkin, Barnett, and Whittington also disagree.
But this disagreement may be an illusion. Consider the following passage from Dworkin’s essay:
We make constant assumptions about the framers’ linguistic intentions, and we never contradict these in our views about what the Constitution says. We assume, for example, that the framers of the Eighth Amendment meant by “cruel”’ roughly what we mean by “cruel,”’ and that they followed roughly the same linguistic practices we do in forming statements out of words. We therefore assume that they intended the Constitution to say that cruel and unusual punishments are forbidden rather than, for example, that expensive and unusual punishments are forbidden. (We would give up that assumption, however, if incredibly, we learned that “cruel”’ was invariably used to mean expensive in the Eighteenth Century.)
Notice that Dworkin makes "usage" rather than "intention" the key variable. If the conventional semantic meaning of "cruel" in the Eighteenth Century was "expensive," then Dworkin believes we are bound by that usage. That is the theory of "Semantic Originalism." And if Eisgruber agrees with Dworkin about the role of conventional semantic meaning, then Eisgruber is an originalist. He would then accept both the fixation thesis and the clause meaning thesis (or something close to it).
But as I said, Eisgruber would deny that he is an originalist. Why is that? The answer is that Eisgruber has a very unusual stipulated definition of originalism:
My proposal is this: a theory should count as “originalist” if and only if, in some cases involving ambiguous moral and political concepts in the Constitution, it dictates that we must comply with a certain moral view because it was held in the past (when the Constitution or a relevant amendment was ratified), even though we now think that view erroneous.. In short, any originalist theory worthy of the name will permit historical fact to trump moral judgment in one or more controversies about the meaning of the Constitution’s abstract moral and political concepts.
Does Eisgruber’s stipulated definition account for the way the term originalism has been used by theorists who self-identify as originalist? The answer to this question is surely “no.”
First, the “great divide” to use Scalia’s criterion for distinguishing originalists and nonoriginalists is between those who affirm or deny the fixation thesis–the linguistic meaning of the constitutional text was fixed by conventional usage at the time of framing and ratification. The fixation thesis is best understood as a claim about the fixity of semantic content, and Eisgruber’s definition would therefore exclude many theorists who are clearly originalists, including both original-intentions originalists and original-public-meaning originalists.
Second, Eisgruber’s definition excludes almost all of the New Originalist theories. Such theories characteristically affirm the interpretation-construction distinction, and observance of that distinction results leads to the conclusion that the abstract moral and political provisions that Eisgruber identifies require construction.
Third, so far as I know, no originalist has every used the term “originalism” to mean what Eisgruber suggests it means. This is not to say that no originalist has ever satisfied Eisgruber’s criterion; some have. Rather, it is to say that no originalist defines originalism in the way that Eisgruber defines it. This is particularly important because Eisgruber uses “if and only if” to express his definition: this means that Eisgruber believes his formula captures the necessary and sufficient conditions for a theory counting as originalist. If no self-identified originalist has used the terms “originalism” or “originalist” in this way, then it is very difficult to see how Eisgruber could claim that his definition reflects the actual pattern of usage in debates over originalism.
Of course, I have only dealt with a small portion of Eisgruber’s book. In particular, I haven’t dealt with Eisgruber’s argument that the Constitution uses ambiguous moral and political concepts like "freedom of speech" and "judicial power" and that contemporary interpreters should adopt the best conceptions of these concepts. That topic is addressed in a prior post in this series: Reply to Griffin, Part Five: Concepts and Kinds.
Griffin’s American Constitutionalism
And this brings me to Griffin’s American Constitutionalism. Once again, I can hardly hope to do justice to this very important book in a paragraph or two. The overarching theme of Griffin’s book concerns the relationship between two views of constitutional law, which we might call "the political view" and "the legalistic view." One of Griffin’s chief aims is to trace the historical roots of the "the legalistic view"–the notion that the Constitution can be understood as ordinary law that is interpreted by Courts on the model of either statutory law or common law. Griffin has a powerful argument, and I urge you to read American Constitutionalism–because the argument defies easy summary.
Here is a passage from near the end of American Constitutionalism that captures the flavor of Griffin’s argument:
The Court’s defense of the legalized Constitution [in Casey] has thus become increasingly problematic. The apparent extension of the legalized Constitution that was the consequence of the judicial activism of the Warren and Burger Courts resulted instead in an increased politicization of the judicial sphere. Rather than producing a new consensus, judicial activism instead introduced deep political conflicts into the constitutional arena. The diverse battles over nominations to the Court, the Court’s retreat on fundamental rights, and the inability of the Court to satisfy even minimal standards of coherence and consistency provide clear evidence of this politicization.
Frequent readers of Legal Theory Blog will know that I am in deep sympathy with Griffin on these points. They point to large questions that are far beyond the scope of the modest ambitions of "Semantic Originalism." Griffin’s project is about "American Constitutionalism" a set of fundamental practices that encompass the written Constitution, but that encompass a variety of fundamental institutions and constituitive norms. (The party system, which is entirely extraconstitutional, is a good example of a "constitutional practice" that is outside of the text of the United States Constitution.) "Semantic Originalism" limits itself to the role of the semantic content of the constitutional text in the larger project of American constitutionalism.
We can imagine many different constitutional futures. One possibility, which Griffin may (or may not) favor would involve a more thorough politicization of the our constitutional order–the return of the fundamental questions of the American constitutionalism to the political sphere and a deemphasis of the legal role of the United States Supreme Court. We can imagine various roles for the Court in the return of politics–ranging from a more modest role to a more overtly political Court. Another possibility might involve the emergence of a political consensus on a more thorough legalization of the judicial power–an elevation of the rule of law values as a shaping influence on the Court’s self-understanding.
These questions about our constitutional future are important, but they are not the only questions that are worthy of attention. The ninth and final post in this series will attempt to summarize the themes that have emerged in this series of posts and offer some reflection on Griffin’s illuminating questions.