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Is Constitutional Conservatism Neither? How Mistaking Our Nation to Be Constituted by One Document Offends Rule of Law

By       Message Darren Latham       (Page 4 of 12 pages) Become a premium member to see this article and all articles as one long page.     Permalink

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[S] trict constructionism [is] a degraded form of textualism that brings the whole philosophy into disrepute. Justice Antonin Scalia

Fantasy that "strict construction" can decide cases ignores reality of constitutional adjudication. To some, "strict construction" signifies that rigid focus on only text shown above to be neither possible nor legitimate. Others mean strict originalism, using only the "original meaning" of that text. But that view also fails, as such meaning rarely is clear and lacks legitimate basis for exclusive use.

Original meaning seldom is certain. Most words have multiple meanings or shades of meaning always in transition; and the founders chose general over specific terms for much of the 1788 text. Some originalists look to historical word-usage--newspapers, speeches, books--seeking "original public meaning." Others imagine a specific intent shared by a thousand representatives voting across state ratifying conventions. Both approaches leave most disputed questions of interpretation unsettled.

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Not only does strict originalism falter on semantic uncertainty, but it violates the rule of law requirement of a present legitimate basis for government power. Allowing a 225-year-old text to define power over 315 million must meet today's legitimacy test, our constitutional standard. The status of such text in our constitution must both (i) reflect the present citizenry's will and (ii) respect inalienable rights. A strict originalist use of that text does neither: part I described why such a reading cannot fully respect inalienable rights; this part explains its conflict with sovereignty. 


  Strict Originalism's Conflict with Our Sovereignty

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Strict originalism violates sovereignty's mandate that today's people are the ones whose assent to government matters. Since the Civil War, we have continually assumed assent. In a perpetual state of implied consensus, we act as though a big-enough proportion of us concurs on some core notion of the present scope of federal power and means for change. The fact that our assent is only implicit does raise a complex question of what the people now take to be constitutionally entrenched. And a precise answer ever eludes us since (i) while at least a majority seems necessary, it is debatable how large a supermajority must agree for constitution making; (ii) we dispute the criteria (e.g., age, good conduct, citizenship) for who comprises the group whose constitutional assent matters; (iii) we cannot, day-to-day, draw a complete, direct response to questions of constitutional foundations from a continually regenerating population of over 300 million; and (iv) we disagree over exactly what should be taken to be accepted by implication of past and present events, in the absence of such daily constitutional votes.

Despite those inherent uncertainties, history does make clear a core implication of our popular sovereignty: the accepted constitutional regime includes more than a narrow, originalist reading of the amended 1788 text. That is, the popular will component of our constitutional standard recognizes some precedent as part of today's constitution. Too much interpretation has been followed with too much reliance and impact for too many generations without any corrective amendment; too much of the long-accepted scope of federal and state power stands on court and practical precedent.


  Our Constitution's Precedential Heritage

That constitutionally-entrenched precedent includes our embracing the 1788 Constitution itself despite its inception violating the Articles; the courts' power to decide legislation's constitutionality; the Louisiana Purchase, which Jefferson thought beyond a narrow reading of textual authority; McCulloch v. Maryland's 1819 approval of federal banks, based only on implications of finance-related powers expressed in the 1788 text (and reading the Necessary and Proper Clause to authorize laws "conducive" to such specific powers); McCulloch's denying state power to tax the bank because text made federal law "supreme"; and the Civil War Amendments (Thirteenth to Fifteenth, primarily abolishing slavery, clarifying citizenship, protecting equality and due process rights against infringement by states, and banning racial voting bars), whose validity we accept today despite Southern states arguably being coerced to adopt them.

And the understood scope of Congress's legislative power today extends from the New Deal era. Since the latter 1930s, the Court has held the commerce power authorizes Congress to address matters "substantially affecting" interstate commerce. That standard allows regulation of even, for instance, working conditions at businesses that operate in one state only. Generations have accepted that precedent as establishing the constitutional scope of federal power in our modern, industrialized nation and integrated economy. That is, we did not feel the need to formally amend the constitutional text, to rigidly commit ourselves to untested language that attempts to more-explicitly reflect our evolved constitutional understanding. The people thus reconfirmed the Court's role in incrementally articulating our constitutional understanding, in a common-law style--preferring that to the uncertainty of creating and adopting new constitutional text through amendment.

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On the heels of our founding, Justice John Marshall had underscored the constitutional status of precedent and Court's duty to "adapt" interpretation to the times. In McCulloch, he observed that the 1788 text's general terms showed original intent for broad interpretation: the founders established "a constitution, intended to endure for ages to come, and consequently, to be adapted [by interpretation] to various crises of human affairs." Moreover, precedent regarding the scope of federal power established by long-enduring practices "ought not to be lightly disregarded."

Even conservative justices follow precedent, affirming that the framers' mandate to adapt the 1788 Constitution by interpretation guides us still. The 1788 text itself expanded federal power well beyond the Articles' scope and was accepted by the voting class of the founding generation. But that first consensus does not extend to us cleanly; that electorate was tiny, privileged, white, male, and dead long ago. Rather, we join a chain of acceptance starting with that 1788 consent but linking through subsequent generations, each generation implicitly acceding to at least some of the interpretations expressed in the precedent of their time. What has been accepted over generations thus evolved--extending our full constitution beyond original text.


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Darren Latham, associate professor at Florida Coastal School of Law in Jacksonville, teaches constitutional law, comparative law, and international commercial law courses and writes on constitutional history and theory.

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Is Constitutional Conservatism Neither? How Mistaking Our Nation to Be Constituted by One Document Offends Rule of Law