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The Constitution as Super Statute

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REASONING FROM CANONICAL LEGAL TEXTS
statute. The U.S. Constitution is, of course, “higher law” than any statute.
1
Moreover, substantial parts of it are more than two hundred years old although many statutes are of similar vintage. And, if one deems its
“authors” to be not those who drafted it but rather those who ratified it – although the ratifiers were most likely voting on what they believed
were the drafters’ intended meanings – then the constitutional authors constitute a more numerous and diffuse group than the legislatures that
author statutes, though the latter are usually bicameral and include the chief executive in the legislative process. None of these characteristics
of the Constitution, however, make it different in kind from a statute. And therefore, there is no reason why the same intentionalism that
should guide statutory and all other legal interpretation should not guide constitutional interpretation.
One argument occasionally raised against intentionalism in con- stitutional interpretation rests on a misunderstanding of intentional-
ism. Its proponents point out that many clauses in the Constitution appear to invoke moral concepts like “equality,” “liberty,” “freedom of
speech,” “free exercise of religion,” “reasonable cause,” and “cruel and unusual punishment.” They go on to argue that these clauses should
be interpreted according to the interpreter’s best understanding of the moral reality to which those concepts refer, and not according to the
Constitution’s authors’ particular understanding of those concepts and how they might apply.
2
Thus, for example, if the death penalty is really “cruel and unusual,” it should be deemed unconstitutional, even if the
authors of the Constitution would not have thought that it was. Or, if official gender discrimination is really a denial of “equal protection,”
it should not matter that the authors of the Fourteenth Amendment did not believe the amendment applied to gender discrimination. And
so on.
Now, nothing in this argument is inconsistent with intentionalist constitutional interpretation. As we made clear in Chapter 5, particu-
larly in our discussion of Bassham,
3
and again at the end of Chapter 7,
4
1
See U.S. Const. Art. VI. cl. 2: “This Constitution . . . shall be the supreme Law of the Land.”
2
See Ronald Dworkin, Comment, in Antonin Scalia, A Matter of Interpretation: Federal Courts and the Law 115–27 Princeton: Princeton University Press 1997.
3
See Chapter 5, supra text at notes 32–41.
4
See Chapter 7, supra text at note 48.
IS CONSTITUTIONAL INTERPRETATION DIFFERENT
? 223
constitutional authors, in using a particular term, may have in mind particular exemplars of that term, which exemplars they believe are con-
sistent with a definition they also have in mind, which definition they believe captures the true nature of the term’s referent. Where, from
the standpoint of the interpreter, the exemplars, the definition, and the true nature of the thing come apart, it is an open question whether
the term’s authors intended the exemplars, the definition, or the true nature to control the term’s application. We can imagine circumstances
that would support the dominance of exemplars of the term, the dom- inance of the conventional definition of the term, or the dominance
of the real nature of the term. The intentionalist seeks the dominant authorial intention.
If, therefore, the constitutional authors did indeed intend for the real nature of the various terms that seem value-laden to control and to
dominate the authors’ possibly mistaken definitions and exemplars, then the interpreter of those terms must seek their true nature and not what the
constitutional authors believed that nature to be. That is intentionalist interpretation, not something else. The constitutional authors would
essentially be saying to their interpreters, we intend by these terms in these clauses for you to seek out the true nature of equality, liberty, and
so forth and gauge the validity of ordinary laws by whether they are consistent with what you discover.
We should, however, caution against too hasty an assumption that the Constitution contains terms of this type – that is, terms by which the
authors intended to refer to “moral reality.” Many legal norms are wholly or in part “standards” rather than “rules.” That is, the norms delegate
to some other decision maker – the citizen, the administrator, or the judge – the task of determining what should be done. The authors of
the hypothetical legal standard “drive at a reasonable speed” prescribed such a standard because they would not or did not want to prescribe in
rulelike fashion a rigid code of speed limits. The driver, or the judge who must assess the driver’s conduct, or the administrator who must post a
speed limit for the curve on Elm Street must decide what a “reasonable speed” is at a particular time or place. The authors of the standard did
not settle that issue. Rules settle, standards delegate.
It should be kept in mind, however, that ordinarily, standards delegate only within the boundaries set by rules. The “reasonable” speed limit
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REASONING FROM CANONICAL LEGAL TEXTS
deals only with driving speeds. It does not affect other domains of life. Similarly, a statute instructing a judge to impose a “fair” punishment for
a crime deals only with that crime and with the punishment thereof.
In interpreting the “moralized” clauses of the Constitution, we can imagine that their authors intended for them to be rule-bounded stan-
dards, delegating to future interpreters the task of deciding what “equal- ity,” or “freedom of speech,” or “liberty” means within the boundaries
established by the Constitution’s determinate rules themselves prod- ucts of the authors’ intended meanings. But the true nature of equality,
liberty, and so forth may not respect such rule-defined boundaries.
So consider the possibility that the “true nature” of liberty, say, or equality demands that we have a thoroughly centralized government no
state or local governments, a unicameral national legislature no Senate, a lower burden of proof in criminal trials than “beyond a reasonable
doubt,” and so on. In other words, it might be the case that much of what our Constitution requires or presupposes is inconsistent with the
“true nature” of political morality. If the Constitution’s authors really did intend by these moralized clauses for us to implement the true nature
of equality, liberty, and the like, then they intended in those clauses to repudiate much or perhaps all of what they intended the rest of the
Constitution to establish.
5
Now their intentions might have been deeply conflictual in this way. But we think one should be cautious before assuming too quickly that
they really did intend in a handful of the Constitution’s many provi- sions to open the door to interpreters’ repudiating clearly established
constitutional rules and structures.
As an aside, but one illustrative of the problem, consider that the Supreme Court has held that the Fourteenth Amendment’s equal pro-
tection clause condemns state senates that, like the United States Senate, are not apportioned according to “one person, one vote.”
6
And consider that the Court has often held that the principles of equal protection are
5
See Larry Alexander and Frederick Schauer, Law’s Limited Domain Confronts Morality’s Uni- versal Empire, 48 William Mary l. Rev. 1579, 1595–99 2007.
6
See Reynolds v. Sims, 377 U.S. 533 1964 holding unconstitutional malapportioned state senates.
IS CONSTITUTIONAL INTERPRETATION DIFFERENT
? 225
part of the “due process” protected by the Fifth Amendment.
7
Finally, consider that the Fifth Amendment was ratified two years after Article
I of the Constitution, which article, among other things, establishes the United States Senate.
8
Should we conclude, therefore, that the United States Senate is unconstitutional under the Fifth Amendment?
In any event, even if the authors of the Constitution intended in certain clauses to delegate to future decision makers the task of divin-
ing the “moral reality” to which those clauses were intended to refer, no special legal reasoning is brought into play. Ordinary intentionalist
interpretation produces the call to engage in moral reasoning. And the moral reasoning it calls for is just that: moral reasoning. The notion that
the Constitution is just a super statute, one to be interpreted like any statute by reference to the intended meaning of its authors, is perfectly
compatible with its containing moral referents.

II. Two Opposing Views


A
.
THE

DEAD HAND OF THE PAST

CRITICISM AND THE NOTION OF THE

LIVING CONSTITUTION

It is now commonplace to hear the Constitution described as a “living constitution.”
9
Intentionalism, according to proponents of the “living constitution” view, accords far too much weight to the “dead hand of
the past.” After all, the Constitution’s authors, leaving aside more recent amendments, lived in a far different time and confronted different prob-
lems from those we now face, and they possessed far less knowledge
7
See Bolling v. Sharpe, 347 U.S. 497 1954 striking down racially segregated schools in the District of Columbia; but see David E. Bernstein, Bolling, Equal Protection, Due Process, and
Lochnerphobia, 93 Geo. L.J. 1253 2005 arguing that Bolling did not equate Fifth Amendment due process and Fourteenth Amendment equal protection.
8
See U.S. Const. Art. I, sect. 3, cl. 1; U.S. Const. amend. V ratified in 1791.
9
See, e.g., William J. Brennan Jr., Presentation to the American Bar Association, July 9, 1985, reprinted in Alpheus Thomas Mason and Donald Grier Stephenson Jr., eds., American Con-
stitutional Law 607–15 8th ed., Englewood Cliffs, N. J.: Prentice Hall 1987 describing “living Constitution” approach to constitutional interpretation; David A. Strauss, Common Law
Constitutional Understanding, 63 U. Chi. L. Rev. 877, 879 1996 same; Paul Brest, The Mis- conceived Quest for the Original Understanding, 60 B.U.L. Rev. 204, 209–17 1980 same.
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REASONING FROM CANONICAL LEGAL TEXTS
than we now possess. If we interpret the Constitution by reference to their intended meanings, much of the Constitution will turn out to
be irrelevant, anachronistic, or perverse. Moreover, the Constitution is remarkably difficult to amend. Why then should interpreters be shack-
led to a set of understandings that are ill-suited to today’s world and its problems? Why not give interpreters the leeway to allow the Constitution
to adapt to today’s world and knowledge? Why not view the Constitution as “alive” rather than as a fossil preserved in amber?
The complaint of the living constitutionalists is really a complaint against constitutionalism itself and more generally a complaint against
entrenching rulelike settlements of controversial matters. Rules settle controversies about what ought to be done by making determinate pre-
scriptions and entrenching them to at least some extent against change. Constitutions are merely settlements with a high degree of entrenchment.
All entrenched rules are potentially infelicitous when enacted. And even if they are ideal when enacted, they may become infelicitous because of
changes in the circumstances to which they apply. One cannot attain the settlement benefits of entrenched rules – benefits of coordination, exper-
tise, and efficient decision making – without the costs and risks associated with entrenched rules. The living constitutionalist is really just someone
who thinks that the risks of constitutional entrenchments are too high, but that, despite the absence of constitutional entrenchments, judges
should nonetheless have authority to make final decisions on matters they deem “constitutional.” The living constitutionalist opposes consti-
tutions under the guise of supporting “living” ones and combines that view with a preference for judicial governance.
The living constitutionalist’s arguments, therefore, extend not just to “updating” the constitutional authors’ notions of what equality, liberty,
and the like demand, but to updating as well the age requirement for the presidency, the composition of the Senate, the terms of elected federal
officials, the life tenure of federal judges, and so on. These rules in the Constitution are as much the product of the “dead hand of the past” as
are those that living constitutionalists usually target for unshackling from their authorially intended meanings. To repeat, the “living constitution”
position is antientrenchment and therefore anticonstitutional. It is not a particular methodology of constitutional interpretation.

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