Can Lawyers Ascertain the Meaning of the Living Constitution?

I agree with most of what co-blogger Randy Barnett says in his recent post responding to critics who claim that lawyers and judges cannot determine the original meaning of the Constitution. But I think we should also pay attention to the opposite question of whether lawyers can figure out the meaning of the living Constitution.

The main alternative to originalism, after all, is some form of living constitution theory. People who claim that originalism is too difficult to apply often implicitly assume that applying living constitution theory is, by contrast, relatively easy. Much of the time, that is not so. Consider, for instance, the famous Carolene Products claim that courts should give special protection to the rights of “discrete and insular minorities.” It is often hard to figure out which groups really are discrete and insular minorities, and which policies discriminate against them or inflict disproportionate harm on them. Bruce Ackerman’s classic article “Beyond Carolene Products is a good discussion of some of these problems.

Or consider John Hart Ely’s famous theory that judicial review should be “representation-reinforcing,” by striking down laws that seriously undermine people’s ability to participate in the democratic process effectively. Justice Stephen Breyer similarly argues that judicial review should promote democratic participation. Often, figuring out what is or is not representation-reinforcing turns out to be a complex question that requires understanding of empirical social science and normative democratic theory to answer intelligently. There are serious representation-reinforcement rationales for some forms of judicial review that Ely and Breyer consider to be clearly anti-democratic. I give some examples here.

Other forms of living constitution theory have similar complexities. Even if your approach is to simply rely on precedent and try to build on its logic when novel cases arise, there are going to significant challenges. As Randy points out, the interpretation of old precedents is often no less complex than the interpretation of the original meaning of the Constitution itself. And even if you have a perfect understanding of the logic of a decision made in, say, 1850, you might need a good deal of additional knowledge to figure out how to apply in the very different conditions of 2013.

This is not to say that living constitution theory is always indeterminate, or that judges are completely incapable of applying it. Far from it. And obviously there are cases where the original meaning is difficult or even impossible to figure out. My point is simply that the difficulties involved in figuring out the implications of living constitution theory particular cases are, on average, at least as great as those of originalism.

This response is not relevant to opponents of originalism who use the indeterminacy critique as a justification for jettisoning judicial review entirely, or confining it within very narrow limits. But most of those who emphasize the supposed indeterminacy of originalism do support robust judicial review. They merely want it to enforce a nonoriginalist interpretation of the Constitution. For these critics, it’s not enough to point out that the original meaning is sometimes hard to figure out. They must also explain why figuring out the meaning of the living Constitution is easier.

UPDATE: In this post, I assume that figuring out the meaning of the living Constitution includes both determining the principle or rule that the living Constitution requires judges to apply, and also its implications for how to decide particular cases. These are, of course, conceptually distinct tasks. But successful judicial enforcement of the living Constitution requires solutions to both problems.