Reason
Death to the Living Constitution
By Damon W. Root
July 21, 2011

Can “progressive originalism” become the Next Big Thing on the legal left?

How should progressives approach the U.S. Constitution? Is it a living document, designed to evolve with the changing times? Or does it have a fixed meaning, one that may sometimes support progressive political outcomes?

Those were the central questions debated earlier this week at the Brookings Institution, a liberal think tank in Washington, D.C., which hosted a debate on “Progressive Visions of Jurisprudence.”

As the event description helpfully put it, while conservatives have largely coalesced around the school of thought known as originalism, which says that the Constitution should be read according to its original public meaning, “progressives have floundered both in developing any sort of consensus as to what they want from the courts and in describing their expectations to the public at large.”

On hand to rescue the left from further floundering was University of Chicago law professor Geoffrey Stone, who preached the old-time religion of living constitutionalism, and his debate opponent, Douglas Kendall, founder and president of the Constitutional Accountability Center, who instead urged progressives to follow the Constitution’s text and history “because those sources are on our side.”

There is something to be said for Kendall’s approach. Unlike Stone, who declared originalism to be “inevitably a fraud in practice” because “the text of the Constitution is unbearably ambiguous,” Kendall correctly observed that the Constitution isn’t always so vague, and that conservatives, despite their purported featly to originalism, sometimes get the text wrong.

Consider the current debate over birthright citizenship. Under the 14th Amendment, “All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” The Framers and ratifiers of that clause understood it to provide citizenship to all children born on American soil, regardless of the immigration status of their parents, with the exception of those born to foreign diplomats or to others with similar immunity from U.S. law.

Yet that hasn’t stopped an assortment of conservative politicians and activists from trying to ban birthright citizenship for the children of undocumented immigrants without first amending the Constitution to allow them to do so—the hallmark of the living constitutionalist approach. In response, Kendall’s Constitutional Accountability Center published an issue brief full of compelling originalist evidence proving the unconstitutionality of these proposed anti-immigration laws.

Leading conservative legal figures did the same. Among them was James C. Ho, a former solicitor general of Texas and one-time law clerk to Supreme Court Justice Clarence Thomas. As Ho observed in The Wall Street Journal, “Opponents of illegal immigration cannot claim to champion the rule of law and then, in the same breath, propose policies that violate our Constitution.”

That’s exactly right. And it’s not the sort of argument a living constitutionalist can make with a straight face. After all, if the document is “unbearably ambiguous,” why shouldn’t a lawmaker adapt it to fit his agenda? Under Kendall’s approach, progressives were able to enter the arena and join the fight; Stone would have had them booing from the sidelines.

To his credit, Kendall also admitted that his brand of originalism won’t always produce progressive results. That’s good to hear. Unfortunately for him, it may also be a deal-breaker for the legal left. Since at least the New Deal, liberals have championed a flexible judicial approach that encourages judges to ignore constitutional roadblocks in the service of allegedly higher political goals. As President Franklin Roosevelt put it in response to the unanimous 1935 Supreme Court decision striking down the National Industrial Recovery Act for exceeding the scope of the Commerce Clause, “The country was in the horse-and-buggy age when that clause was written.” According to FDR, his administration wanted judges who would “view the interstate commerce clause in the light of present-day civilization.” New Deal adviser Rexford Tugwell was a little more blunt about it, later admitting that many of FDR’s policies “were tortured interpretations of a document intended to prevent them.”

Kendall has his work cut out for him if he wants to convince the legal left to abandon its New Deal jurisprudence and kill off the living Constitution. Still, it’s always better to have legal activists grappling with the text of the Constitution rather than ignoring it outright. For that reason alone, progressive originalism is a welcome development.