The Ghost of Living Constitutionalism

Originalism's rival is really no rival at all.

(This is part two of a three-part series derived from a term paper I wrote in a previous semester titled “We Have All Always Been Originalists”, read part 1 here)

Justice Scalia conceded long ago that, originalism “is...not without its warts.” Given the complexities of law and the unknowable nature of human experiences under law, an approach that attempts to place sole consideration on the intentions, text, and context of law will not provide complete answers in every situation. At the end of the day, a judge can only do so much homework before having to make the best judgment they can, and no judge can fully discolor their judgments from their own biases.  

The purported alternate approach, called by some the living constitution, is to look to the values of society and to consider the immediate consequences of a ruling. But does this view have any pure adherents? While many conservative observers view this theory as a monolithic Leftist dogma that has invaded the courts of law for the purposes of legislating from the bench, is there really any unity in jurisprudential thought coming from a solid contingent of living constitution practitioners?

Is there, for example, a single case before the Supreme Court in the last hundred years whose judgment didn’t contain some mention of precedent or a consideration of how, why, and in what way a law was crafted? 

Perhaps the closest we can come to a true adherent of the Living Constitution was Justice William Brennan who, as Judge Diarmuid F. O'Scannlain recalls, “used to hold up one hand, fingers spread, to illustrate what he called the most important rule in constitutional law: the Rule of Five. With five votes, a Justice can do anything.” But even this vaunted living constitutionalist and his allies on the court used what many would deride as originalism in crafting the major judgments of their time. 

Let us consider Roe v. Wade, the case most often cited as representing living constitutionalism. The first objection many offer to Roe v. Wade is that Norma McCorvey did not have standing, since her child had already been born. Detractors of Roe v. Wade argue the court violated its tradition of standing by hearing the case in the first place. Was the court’s answer to declare that they could hear what cases they wanted to or that standing has no constitutional grounding despite being a principle of precedent? No. The argument offered in defense of hearing the case was that “Litigation involving pregnancy, which is 'capable of repetition, yet evading review,' is an exception to the usual federal rule.” This is a citation of precedent, referring to Southern Pacific Terminal v. ICC.  

Moving on to the most common argument against Roe v. Wade, it is argued that the Court invented a constitutional right to abortion when abortion itself is not found anywhere in the US Constitution. But, again, was the court’s determination simply an arbitrary determination that there should be a right to abortion and therefore they would judge that there is? Once again, no. 

The court carefully traced its view of rights as protected by the 9th and 14th amendments and cited various cases, including Meyer v. Nebraska, Pierce v. Society of Sisters, and Griswold v. Connecticut, that had found and secured a constitutionally protected right to privacy: “This right of privacy, whether it be founded in the Fourteenth Amendment's concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, in the Ninth Amendment’s reservation of rights to the people, is broad enough to encompass a woman's decision whether or not to terminate her pregnancy.”  

Again, here we are not seeing an undiluted and pure application of a living constitution, but an application of precedent and traditional understanding of constitutional rights expanded to apply to circumstances that, the court argues, should have been applied previously. The only real argument for the presence of living constitutionalism in Roe v. Wade is that the court arbitrarily held up a women’s right to privacy over an unborn child’s right to live and did not fully consider at what stage of pregnancy an unborn child might be or should be considered human life.  

But even this argument suggests that living constitutionalism was wrapped in the bow of originalism to hide its designs, suggesting, once more, that jurisprudence is ultimately a consideration of precedence, of intentions, of texts, and of contexts...of originalism.  

This case, most often cited as “legislating from the bench” is still bound to a certain form of originalism, suggesting that even if the liberal court was operating from the view of a living constitution, they did not feel they could escape the demands of precedence and established law in the justifications for their ruling. Crucially, if abortion did not involve the termination of an unborn human life, the discerning conservative originalist would be forced to find the same right of privacy that the liberal court found in the 9th and 14th Amendments.  

(read part 3 here)