Living Constitutionalism:
Michael Dorf has a new Findlaw column up on Who Killed the "Living Constitution"? in which he argues that " that the living Constitution is a problematic metaphor, but only because originalists like Justice Scalia either misunderstand or mischaracterize what it stands for." According to Dorf:
If the "living Constitution" metaphor is understood in the way that Rehnquist and Scalia understand it, then it is easy to see why the metaphor--if taken as a jurisprudential roadmap--would be bad for democracy. When judges rely upon the Constitution itself to hold a legislative act invalid, they serve the higher law, duly adopted pursuant to the rigorous ratification process. However, when judges "substitute" their own values for the Constitution's values, and then use those substituted values as the basis for invalidating legislative action, they illegitimately take important decisions away from the people's elected representatives.

Yet the foregoing is a valid critique only if champions of the living Constitution really think that they have a warrant to substitute their views for those of the Constitution. In fact, however, no serious judge, lawyer or academic argues for that.

Originalists and living-Constitutionalists both agree that where the constitutional text is clear, it controls. For example, Article II states that no person under the age of 35 can be President, and no champion of the living Constitution would argue that nonetheless an especially precocious 32-year-old should be deemed Presidency-eligible simply because she dislikes the textual limit.

Originalists and living-Constitutionalists part ways over how to interpret ambiguous provisions of the constitutional text. Originalists say that judges should resolve textual ambiguity by consulting the prevailing views of the Founding generation. (I explored the relation between this formulation of originalism and the more traditional focus on "framers' intent" in an earlier column, but we can put aside these nuances here.) The act of ratification by that earlier generation of Americans gave the text its power as law, and therefore, that earlier generation's understanding should prevail, originalists say.

By contrast, living-Constitutionalists believe that while the original understanding has some bearing on the Constitution's contemporary meaning, it is not the whole story. 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, as Justice Powell said in the Rummel case, the way in which contemporary Americans understand the Constitution's language should play a substantial role in how the courts interpret that language.
There is much that can be said about Dorf's column. Larry Solum has a nice response on his Legal Theory Blog. There he notes that Dorf has confused the problem of ambiguity with that of vagueness, and failed to take into account the degree to which the New Originalism allows, indeed requires, nonoriginalist constitutional construction when the language of the Constitution is vague. This is why Jack Balkin thinks that originalism is compatable with "living constitutionalism" and why back on 1999, I dubbed my approach to be "an originalism for nonoriginalists." Here is how Solum explains this distinction:
But the contemporary theoretical landscape is a lot more complicated than that. (Dorf is writing a short column and certainly isn't obliged to do a literature review in that context.) Dorf is assuming a theoretical move that might be called "incompatibilism"--the view that originalism and living constituitonalism are incompatible. But this view has been challenged, most prominently by Jack Balkin, who argues for "compatibilism"--the view that adherence to original public meaning is consistent with "living constitutionalism" in what we might call the "zone of construction" (relying on the Whittington-Barnett distinction between "interpretation" and "construction").

There is, however, a much deeper problem with Dorf's description of the theoretical landscape. Dorf says "Originalists and living-Constitutionalists both agree that where the constitutional text is clear, it controls," but "clarity" is itself a poor term to describe what is going on here. There are two distinct sources of constitutional "underdeterminacy": vagueness and ambiguity.

Ambiguity occurs when a constitutional unit of meaning (term, phrase, or clause) has more than one sense. When original public meaning (conventional semantic meaning at the time of constitutional utterance) is ambiguous, context usually resolves the ambiguity. Living constitutionalism is usually irrelevant in cases of ambiguity. The constitution uses the phrase "domestic violence" to refer to insurrection or revolt within the territory of the United States. No one sensible thinks that the fact that "domestic violence" has now acquired a new sense, referring to spouse and/or child abuse creates an ambiguity that should be resolved by reference to "living constituitonalism". Originalists and living constitutionalists should be agreed that when the context of constitutional utterance resolves an ambiguity, the disambiguated semantic content of the constitution has the force of law.

Vagueness occurs when a constitutional unit of meaning has borderline cases. For example, phrases like "executive power" or "freedom of speech" are vague. The central insight of the "New Originalism" is that the original public meaning of the Constitution can just be vague--original meaning can run out. When the constitution is vague, resolution of the vagueness (line drawing) requires what Keith Whittington calls "constitutional construction." But precisely because construction operates in the zone of vagueness where "original public meaning" (conventional semantic meaning at the time of constitutional utterance) runs out, there can be no deep disagreement between originalists (qua originalists) and living constitutionalists on the proper method of construction. Of course, particular originalists can disagree among themselves and with living constituitonalists about methods of construction. But when originalists turn their attention to methods of construction, they move beyond the core commitment of originalism to the proposition that the semantic content of the constitution wax fixed at the time of constitutional utterance. That is, the views of particular originalists about proper methods of constitutional construction are outside the core of originalism as a theory.
The phrase "natural born citizens" is ambiguous. It could be a term of art at the time of the Founding that refers in part to persons born in the United States and subject to its jurisdiction (or something even more particular as described here), or it could have the modern meaning of someone born naturally, i.e. not by cesarean section or in vitro fertilization. No one thinks, including Dorf, that we make this choice based on which meaning we like best. Everyone thinks we must ascertain the original public meaning of this term, whatever it may be. Most of the words and sentences in the Constitution mean the same today as they did then but sometimes the meaning of a specific phrase like "natural born citizen" is no longer part of our lexicon and is archaic. We then need to investigate and discover its original public meaning. By the same token, the original meaning of whole passages of the Constitution, like the Privileges or Immunities Clause of the Fourteenth Amendment, are now ignored because judges thought they got in the way of government power. These passages are now "dead" or, to switch the metaphor, they are "lost."

In contrast to ambiguity, as Solum notes, any word can be vague depending on the context, and so can the original meaning of a term in the Constitution. For instance, while the meaning of "search" has not changed since the founding, whether a particular activity is a search or not cannot be decided historically. Is the thermal image of a house to detect increased heat emanating from grow lights a search? All modern courts can do is apply the original meaning of "search" and then decide whether this activity is sufficiently close to the core or paradigm meaning of the term to be included. And judicial opinion on this question can evolve as part of a "living" constitutional law.

Moreover, Dorf is correct to note that some originalists might try to answer the question of construction by asking what the framers would have intended, but this is a residual carry over from the prior original intentions originalism that, at least in the abstract, has been largely abandoned. To ask how the framers would have decided a question is to pose a counterfactual not a factual question, and one that has no historical answer. Dorf would be right to criticize such originalists as back-sliders from original public meaning originalism, but he is wrong to tar all originalists, especially the New Originalists, with the same brush.

Similarly, I also think he he wrong to deny that some who famously used the term "living constitution" did so to justify the judicial alteration of the Constitution, especially by eliminating the parts they deem to be archaic. Consider Dorf's own views on the Second Amendment in which he posits that Supreme Court precedents should trump the original meaning of the text:
Although eclectic interpretive theories customarily list authoritative text as the first consideration in ascertaining meaning, I shall defer consideration of the Second Amendment’s text as such until Part II. I do so not simply because the Second Amendment lacks a “plain meaning,” but because, contrary to conventional wisdom, constitutional doctrine typically trumps constitutional text – at least absent arguments of sufficient strength to overcome the principle of stare decisis.
Notice that he does not repeat this formulation of his approach in his Findlaw column probably because it would tend to conform to, rather then undermine, the stereotype of living constitutionalism. In his article, Dorf is careful to allow some role for precedent to be deemed mistakenly in conflict with the text when such conflicts are "clear." But, as typically practiced, the (selective) use of and adherence to precedent to "trump" an inconvenient original meaning of the text works precisely to substitute the judges meaning for that which was originally enacted. As practiced, therefore, this is "living constitutionalism" in its bad sense.

But Balkin's reconciliation of original meaning and living constitutionalism subtly alters the term "living constitution" to one that should be acceptable to originalists. So too has former Attorney General Ed Meese who initiated the modern debate over originalism with a series of speeches in the 1980s. I once heard Meese say something like this: Only a constitution that is still followed is still alive. A constitution whose terms are ignored because times have changed is a dead constitution.

That would be the whole Constitution. Even the "lost" parts like the Ninth Amendment and Privileges or Immunities Clause of the Fourteenth Amendment that restrict the powers of the federal and state governments, despite the fact that the Supreme Court in all its wisdom has decided these provisions of the text are meaningless.

Update: I think this exchange from the comments is worth adding to the original post:

Commenter: So what do originalists propose in the situation in which the Constitutional text is vague such that neither the text nor its history provides any clear answer? Such cases seem to me to be quite common among the tiny sliver of cases that reach the Supreme Court.

Me: There is no consensus "originalist" answer to your question. This is something originalists should be debating respectfully among themselves. What originalists should not do is default to "framers intent" without a serious defense of that method of constitutional construction. A lot will depend on your theory of constitutional legitimacy. If you think the legitimacy of the Constitution rests on (someone's) consent, you may do it one way. (But you had better have a reasonably well worked out theory of consent.) If you reject consent theories, as I do, and think the Constitution's legitimacy rests on the justice of the government it establishes coercively imposing laws on those persons who do NOT consent, then you may do it another way. In this spirit, I propose the adoption of a "presumption of liberty" to replace the current "presumption of constitutionality" as currently qualified by the Supreme Court doctrine of "fundamental rights."

Be this as it may, any constitutional construction must stay within the "frame" provided by original meaning. Just because original meaning cannot completely handle a particular case and controversy does not mean it does not limit the range of possible constitutional constructions available to a conscientious interpreter. An originalist rejects contradicting or overriding what original meaning there is with something the "interpreter" likes better. While this leaves considerable room for an evolving constitutional law, that is one reason why the Constitution is still useful after all these years. It is a feature not a bug.
I should also add that there are a great many "easy" cases resolved by original meaning, including some that the Supreme Court has long gotten wrong. Gonzales v. Raich is one recent example. In Raich only one justice even purported to apply original meaning, and that was Justice Thomas. Justice Scalia's concurring opinion was squarely within the New Deal Court's misreading of the "living" Constitution. The existence of hard cases of constitutional construction is no good reason to wrongly decide cases that are easily handled by original meaning, even if such a decision cuts against the grain of the four "liberal" justices' preference for strong federal power.