The real defense of the "living constitution" is that its so-called alternative, which user Readin calls "reliable constitution" and which in reality is called originalism, is anything but free of interpretations. E.g.
Originalists routinely argue that originalism is the only coherent and legitimate theory of constitutional interpretation. This Article endeavors to undermine those claims by demonstrating that, despite the suggestion of originalist rhetoric, originalism is not a single, coherent, unified theory of constitutional interpretation, but is rather a disparate collection of distinct constitutional theories that share little more than a misleading reliance on a common label. Originalists generally agree only on certain very broad precepts that serve as the fundamental underlying principles of constitutional interpretation: specifically, that the "writtenness" of the Constitution necessitates a fixed constitutional meaning, and that courts that see themselves as empowered to give the Constitution some avowedly different meaning are behaving contrary to law. Originalists have been able to achieve agreement on these broad underlying principles, but they have often viewed as unduly narrow and mistaken the understanding held by the original originalists-the "framers" of originalism, if you will-as to how those principles must be put into action. And originalists disagree so profoundly amongst themselves about how to effectuate those underlying principles that over time they have articulated-and continue to articulate-a wide array of strikingly disparate, and mutually exclusive, constitutional theories. In this regard, originalists have followed a living, evolving approach to constitutional interpretation.
When scholars like Raoul Berger and Robert Bork, and political
and judicial figures like Attorney General Edwin Meese III and then-Justice Rehnquist, began to compose scholarly monographs articulating an intellectual defense of originalism in the 1970s and 1980s, they repeated and developed the notion that the proper
meaning of the Constitution is the meaning originally intended by the
Framers. [...]
Even in the early days of “original intent” originalism, there was
internal disagreement about the proper focus of the inquiry. The
“intent of the Framers” was a misleading abstraction that implied a
degree of agreement that was not really there. Just who were the
“Framers” whose intentions mattered: the men who drafted the text
of the Constitution and agreed upon it at the Philadelphia
convention, or the men whose ratification votes at the subsequent
state conventions gave it the force of law? The early originalists could
not agree on the answer to that question. Meese focused on the intent
of the drafters; Berger initially concurred, but later shifted his focus
to the intent of the ratifiers.
The move from original intent to original meaning exponentially
multiplied that sort of internal disagreement among originalists. [...]
as the focus shifted from original intent
to original meaning, many originalists began to speak in terms of the
“public understanding” of the meaning of the Constitution. [...]
the move to original understanding did
not obviate the disagreement over whose intentions matter; it simply
replaced that debate with a new one among originalists—at least, that
is, among those originalists who abandoned the quest for original
intent—as to whose understanding matters. [...]
At first, this notion of “objective” meaning was seemingly tied to
the actual understanding of the people. In insisting on objective
constitutional meaning, for example, the Reagan Justice Department
explained that “[o]ur fundamental law is the text of the Constitution
as understood by the ratifying society, not the subjective views of any
group or individual.” In other words, the objective meaning is the
one actually shared by the ratifying society as a whole: “The common
understanding of the text is what counts . . . .” As Justice Scalia
explained it, the originalist should seek the “meaning of the words of
the Constitution to the society that adopted it—regardless of what the
Framers might secretly have intended.”
Indeed, some originalists who seek the original, objective
meaning have in fact gone so far in the direction of reliance on the
actual public understanding as dispositive proof of original meaning
that they determine original meaning by reference to the concrete [...]
Justice Scalia has frequently
decided cases on the basis of the proposition that if the first
Congresses and presidents engaged in a practice, then the Framing
generation must have expected and thus understood the practice to
be constitutional—in which case it “necessarily remains constitutional
today.”
Most originalists who seek the original, objective meaning of the
Constitution, however, have explicitly rejected this practice. Indeed,
originalists have found themselves disagreeing with Justice Scalia on
matters of constitutional theory with increasing frequency. [...]
This newer generation of originalists has developed a theory that
some of its proponents have labeled “original, objective-public-meaning textualism.” This theory disavows not only original intent,
but also original understanding. Its proponents do not concern
themselves with how the words of the Constitution were actually
understood by the Framers, the ratifiers, the public, or anyone else, but rather with how a hypothetical, reasonable person should have
understood them. [...]
What is more, even among those originalists who claim to rely on
the original, objective public meaning of the constitutional text, there
is profound disagreement about the nature and effect of originalism. [...]
To
take just one example of the polarizing debates currently raging in the
originalist community, consider the role of precedent in originalist
theory. Justice Scalia has famously declared himself to be a “fainthearted originalist,” insofar as he would sometimes allow judicial
precedent or societal custom to trump the original meaning of the
Constitution. Justice Scalia insists that “almost every originalist
would adulterate [originalism] with the doctrine of stare decisis.”
But a growing number of originalists would not. Gary Lawson, for
instance, has argued that it is unconstitutional for the Supreme Court
to follow a precedent that deviates from the Constitution’s original,
objective meaning. And Michael Stokes Paulsen concurs that “stare
decisis . . . is completely irreconcilable with originalism.” Indeed,
Randy Barnett has argued that, because Justice Scalia sometimes is
willing to allow stare decisis to trump original meaning, “Justice
Scalia is simply not an originalist.” Even Justice Scalia admits that
“stare decisis is not part of [his] originalist philosophy; it is a
pragmatic exception to it.”
One conclusion that could be drawn from this conceptual
diversity and disagreement is that “originalism” is not a constitutional
theory at all, but rather is simply rhetorical code for a commitment to
a series of particular judicial outcomes favored by political
conservatives. [...]
But making sense of
the evolution and dissonance of originalist theory does not necessitate
that degree of cynicism. Originalism might better be understood by
reference to its archnemesis, living constitutionalism. Modern
originalism’s genesis, of course, was as a response to the perceived
excesses of the theory of the living constitution. But originalism is a
jurisprudential theory undergoing its own endless evolution, with its
own living constitution. That is to say, originalists’ understanding of
the relationship among originalism’s current meaning, its original
meaning, and its underlying principles is similar to living
constitutionalists’ understanding of the relationship among the
Constitution’s current meaning, its original meaning, and its
underlying principles. Just as the theory of living constitutionalism
permits the meaning of the Constitution’s provisions to evolve to
reflect current societal values, the theory of originalism permits the
meaning of originalism to evolve to reflect current interpretive values. [...]
Agreement
on the proposition that the Constitution must have a fixed meaning
leaves plenty of room for disagreement about what that meaning is,
and how and at what level of generality it is to be ascertained. [...]
The
project of actualizing these capacious principles into a working theory
is a task that each generation of originalists has undertaken anew,
occasionally drawing upon, but occasionally rejecting, the work of its
predecessors. This, of course, sounds very much like the living
constitutionalists’ view of the manner in which constitutional meaning
evolves.
In one respect, this story of evolution reflects well on originalists.
The proponents of any rigorous theory should, after all, constantly
strive to improve it, to smooth out the bumps of incoherence. For
most theories, this development is a virtue, a sign that its proponents
are sufficiently humble to respond to criticism and to recognize the
room for theoretical maturation while still holding on to their core
principles. But for originalists, there is a twist: the central claims of
their faith are to a substantial degree belied by the very existence of
this evolution and discord. Originalists have consistently insisted that
they have discovered the one, true faith—the one approach that is
self-evidently correct. Yet the faith, it seems, keeps changing.
Nonoriginalists, [Scalia] argues, “divide into as many camps as there are
individual views of the good, the true, and the beautiful,” which
makes theoretical coherence among nonoriginalists a virtual
impossibility. [...]> These criticisms are nothing new. Robert Bork made the same
case more than thirty-five years ago, arguing that nonoriginalism
fails the test of legitimacy because “[w]here constitutional materials
do not clearly specify the value to be preferred, there is no principled
way to prefer any claimed human value to any other.” And without
the constraint of constitutional text or history, he argued, “the judge
has no basis other than his own values upon which to set aside the
community judgment embodied in the statute. That, by definition, is
an inadequate basis for judicial supremacy.” Justice Scalia has
elaborated on this theme, arguing that the “principal theoretical
defect of nonoriginalism . . . is its incompatibility with the very
principle that legitimizes judicial review of constitutionality.” [...]
Of course, the mere fact that originalists disagree among
themselves does not necessarily mean that they are all wrong—or that
at least one of them is not actually right. It is possible that among the
many competing versions of originalism lies the one “correct” and
uniquely legitimate method of constitutional interpretation, just as it
is possible that there is a correct moral philosophy and a correct
answer to the question, “which was the greatest baseball team of all
time?” But if fifty people with fifty different approaches all insist that
their particular approaches are not merely the best but are also
correct, and that all other approaches are not merely less desirable
but also illegitimate and wrong, then one can have only so much
confidence in any one of their claims.
To take perhaps the most obvious example of originalists’
invoking divergent theories and reaching disparate results, consider
the range of responses originalists have offered to Brown v. Board of
Education. In the 1970s, Raoul Berger argued vigorously that, as a
matter of original intent—which he claimed can easily be determined
from the debates surrounding the drafting and ratification of the
Fourteenth Amendment—Brown was incorrectly decided (although
he also argued that this result obviously was undesirable as a political
matter).
But Robert Bork relied on a different version of originalism to
argue that Brown was correctly decided. Bork argued—first in 1971
and then again in 1990—that, although the Fourteenth Amendment
originally was intended and understood to permit segregated schools,
Brown nevertheless was correct because the “purpose that brought
the fourteenth amendment into being” was “equality,” and “equality
and segregation were mutually inconsistent,” even “though the ratifiers did not understand that.” Bork thus viewed the original
meaning at a very high level of generality—so high, in fact, that many
commentators have observed that his approach is starkly inconsistent
with most standard versions of originalism. [...] Earl Maltz, however, has challenged the originalist propriety of
Brown, relying on contemporaneous historical evidence of the
“understanding” of “those who drafted and ratified the Fourteenth
Amendment . . . during the earlier Reconstruction period” to
conclude that Brown is incompatible with originalism. [...] And Justice Scalia has allegedly acknowledged that
Brown cannot be defended on originalist grounds.
And in fact the paper gives a few more takes on Brown, all claiming to be originalist approaches, but this answer is already too long.
Original-expected-application
originalism supports the constitutionality of legislative prayer,
whereas other forms of originalism that seek to identify the principle
embedded in the text do not. Justice Scalia’s particular version of
expected-applications originalism supports the constitutionality of
government-sponsored Ten Commandments monuments, whereas
forms of originalism that seek to identify and vindicate the original
purpose of the Establishment Clause do not. And so on. [...]
[...] originalism often fails to constrain judges
because the process of applying the original meaning (or
understanding or intent) to the particular problem at hand still leaves
room for substantial discretion on the part of the judge to follow her
personal preferences—especially when that meaning (or
understanding or intent) is articulated at a broad level of generality. [...]
Indeed, that is precisely what originalist judges have done. Even
those self-professed originalists on the bench who have claimed to
endorse one particular brand of originalism, to the exclusion of all others, have in fact bounced around among originalist theories from
case to case, each time choosing the version of originalism that allows
them to reach their desired results. This point can be illustrated by
reference to the jurisprudence of the three most influential originalist
judges: Justices Scalia and Thomas and Judge Bork. [...]
Consider [Scalia's] approach to the Eleventh Amendment and the
question of state sovereign immunity. The Court’s recent decisions in
this area are, of course, all but impossible to square with either the
text of the Amendment or (most commentators have concluded) its
history. Justice Scalia has acknowledged that “[i]f this text were
intended as a comprehensive description of state sovereign immunity
in federal courts,” then many of the Court’s decisions in this area
would be “unquestionably” wrong. But he nevertheless has
endorsed the Court’s decisions on the ground that an unwritten
“assumption” of state sovereign immunity “was implicit in the
Eleventh Amendment.”
To be sure, that approach is not inexorably
inconsistent with an originalist jurisprudence, which Justice Scalia
claimed to have employed in reaching his conclusion. It might well
follow (assuming the correctness of the history upon which it is
based) from an original intent or original understanding approach.
But it certainly is in substantial tension with the particular version of
original-meaning originalism that Justice Scalia generally professes to
follow—a version that relies on the primacy of constitutional text in
the quest for constitutional meaning, and that treats the objective,
“original meaning of the text” as the touchstone of original
meaning. In the abstract (and in other contexts), Justice Scalia has
insisted that, when it comes to constitutional interpretation, “[w]ords
do have a limited range of meaning, and no interpretation that goes
beyond” the “limited range of meaning” that words carry is
“permissible.” Indeed, he has condemned interpretations that the
constitutional “language will not bear.” Yet when it comes to
interpreting the Eleventh Amendment, he reaches a result (one
generally preferred by political conservatives) that cannot be
squared with, and is admittedly not limited by, the constitutional text.
Similarly, Justice Scalia has adamantly asserted that, because
what should matter to originalists is the original objective meaning of
the text, rather than the subjective understandings of the Framers,
historical sources such as The Federalist should be used to determine
the common, objective meaning of the words used in the
Constitution, not to ascertain the actual, subjective understanding of
the Framers. But he has not always been faithful to that assertion.
In Printz v. United States,
for example, Justice Scalia’s opinion for
the Court concluded that the federal government lacks authority to
compel state officials to implement federal law, even though he found
“no constitutional text speaking to this precise question,” and even
though the most relevant constitutional text—the Commerce Clause,
the Necessary and Proper Clause, and the Supremacy Clause (and
even perhaps the truistic Tenth Amendment)—appeared to cut
against his conclusion.Justice Scalia’s opinion relied heavily on The
Federalist not to determine the original meaning of the text, which he
concluded was all but irrelevant, but rather to ascertain “the historical
understanding and practice” of the Framers. Indeed, Justice Scalia
was so focused on the actual understandings of the Framers that he
went as far as to discount almost entirely the views that one Framer
expressed in The Federalist—concluding that Hamilton was too
nationalistic to be trusted—and to rely instead on another Framer’s—
Madison’s—particular understanding of the Constitution.
There are several more inconsistencies in Scalia's approached discussed in the paper, followed by some of Bork's and Thomas'. To skip to the latter...
Finally, consider Justice Thomas, who has long declared himself
to be an originalist. But of which variety? [...] For instance, in
McIntyre v. Ohio Elections Commission,
he articulates his
constitutional jurisprudence as follows:
When interpreting the Free Speech and Press Clauses, we must be
guided by their original meaning, for “[t]he Constitution is a written
instrument. As such its meaning does not alter. That which it meant
when adopted, it means now.” We have long recognized that the
meaning of the Constitution “must necessarily depend on the words
of the constitution [and] the meaning and intention of the
convention which framed and proposed it for adoption and
ratification to the conventions . . . in the several states.” We should
seek the original understanding when we interpret the Speech and
Press Clauses . . . .
This conflation of distinct modes of originalism allows him to draw
indiscriminately on sources that are of differing value to different
versions of originalism—Anglo-American law and tradition, the
drafting history of the Constitution, the ratification history,
postenactment behavior and statements of government officials,
and eighteenth-century dictionaries, among other evidence—
which of course broadens his ability to find evidence to support what
may really be a subconsciously predetermined meaning that yields his
preferred outcome.
Indeed, after a thorough study of Justice Thomas’s
jurisprudence, Scott Gerber has concluded that “Justice Thomas is a
‘liberal originalist’ on civil rights and a ‘conservative originalist’ on
civil liberties and federalism.” Gerber uses the term “liberal
originalism” to refer to the notion that the Constitution should be
interpreted at a higher level of generality to reflect the natural-law
inspired political philosophy of the Declaration of Independence, and
the term “conservative originalism” to refer to the notion that the
Constitution should be interpreted in the same manner in which the
Framers would have interpreted it. Thus, explains Gerber, “Justice
Thomas appeals to the ideal of equality at the heart of the
Declaration of Independence when he decides questions involving
race, but to the Framers’ specific intentions—as manifested in the text
and historical context of the Constitution—when he decides questions
involving civil liberties and federalism.” This allows him to reject
segregation and affirmative action, even though the framers of the
Fourteenth Amendment likely would have accepted them, while at
the same time relying on the narrow understanding of the Framers to
reach politically conservative results in cases involving other issues,
such as the establishment of religion and abortion.
Basically, originalism (as the purported true meaning of the constitution) is really an evolving, living project which might use somewhat more historical means of understanding the Constitution, but it still requires plenty of interpretation and argument. More worrisome than this evolution is that originalism many methodological flavors (which can and do lead to conflicting conclusions) show up in the works of the same judge. Basically, there's no such thing as a "reliable constitution" that doesn't depend on whom is doing the interpretation, even if they profess to be originalists, simply because there are flavors of originalism one can pick to come to a conclusion that may be so desired for politically exterior motives or some other kinds of cognitive biases.
