Defending the Constitution From the ‘Living Constitutionalists’

“Originalism” means applying the Constitution as the Founders understood it. Originalism is just a modern name for how English and American judges and lawyers have read most legal documents for at least 500 years (pdf).

By respecting the understanding behind a document, originalism keeps the document alive.

By contrast, there’s no simple definition of “living constitutionalism” because “living constitutionalists” differ greatly among themselves. They’re united by dislike of many of the Constitution’s rules and standards, and they all want to adjust the Constitution to serve their political goals. But beyond that, their unity ends: They sometimes have different goals, and they propose different ways of justifying constitutional manipulation.

“Living constitutionalism” is a misnomer, because when we abandon a document’s rules and standards, the document dies. In practice, “living constitutionalism” converts our Constitution into a parchment loin cloth to cover political pudenda.

Among the inconsistencies of living constitutionalists are claims that the Constitution is both “too rigid” and “too vague.” One who thinks it’s too rigid is David A. Strauss, a law professor on President Joe Biden’s Supreme Court commission. He wants constitutional law to evolve much as the common law evolves. Such “common law constitutionalists” underappreciate the fact that our decision to adopt a written Constitution was a clear rejection of the British-style “evolving” constitution.

By contrast, William Brennan, a living constitutionalist who afflicted the Supreme Court from 1956 to 1990, thought much of the Constitution was so vague as to be virtually meaningless. He referred to constitutional provisions as “luminous and obscure.” He wanted judges to replace the shimmering fog with structures of their own making.

The “too vague” and “too rigid” accusations are not only inconsistent with each other. They also are incorrect.

Let’s apply a dash of common sense to a serving of history. The Constitution’s framers weren’t the kind of people who write overly rigid or meaningless terms. They included Oliver Ellsworth of Connecticut, John Dickinson of Delaware, and John Rutledge of South Carolina, each the leading attorney in his respective state. Eight framers had been educated in London’s Inns of Court, the schools for training English barristers. The framers included other celebrated lawyers as well, such as James Wilson of Pennsylvania and Alexander Hamilton of New York. Even most of the non-lawyers, such as James Madison and Nathaniel Gorham, had been immersed in legal subjects throughout their careers. The framers had composed written legal documents in business, in law practice, in the state legislatures, and in Congress.

They were, moreover, deeply familiar with the 600-plus-year Anglo-American tradition of composing constitutional-style documents.

They drafted the Constitution as a legal document should be drafted: tuning each provision to the level of rigidity or flexibility necessary to its purpose.

As a result, some constitutional phrases are rigid—but properly so. For example:

The president “shall hold his Office during the Term of four Years.”
“No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.”
Few of us would want to live under the “living constitutionalist” versions, which might read:

“The president shall hold [insert politically correct pronoun here] office as long as the judges, balancing all factors, decide it promotes good social policy,” and
“A person may be convicted of treason if the judges find the evidence persuasive after they have balanced its reliability and quantity with the needs of social justice.”
But when rigidity wasn’t appropriate, the framers could write terms flexible enough to satisfy any living constitutionalist. For example:

“Each House shall keep a Journal … and from time to time publish the same, excepting such Parts as may in their Judgment require Secrecy,” and
“The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it.” (Italics added)
And as explained below, the Constitution also has many provisions that are neither particularly rigid nor overly flexible.

One reason some people think the Constitution is too vague or too rigid is that they don’t understand what many of its clauses actually mean.

For 25 years I’ve been working to cure that by writing a series of research articles exploring sections of the Constitution. My research has demonstrated that many charges of rigidity or vagueness are wrong.

For example, some law professors used to laugh at how “rigid” the Coinage Clause is. The Coinage Clause (Article I, Section 8, Clause 5) grants Congress power “To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures.” The scoffers assumed that “To coin Money” meant only to strike metallic coin. They said that in modern society this is impractical: We need paper and electronic money as well.

But if they’d read the clause carefully, they might have noticed that interpreting “coin” as only metal made no sense. When the Constitution says “regulate the Value … of foreign Coin,” it means setting foreign exchange rates. If “Coin” meant only metal, then Congress could set exchange rates for foreign metal tokens but not for foreign paper money. Surely the Founders didn’t intend such an absurd result.

And they didn’t. As I documented in a 2008 article (pdf) published by one of the Harvard journals, the Founders understood the Constitution’s word “coin” to include money in any medium, including paper. The scoffers were flat wrong: The Coinage Clause wasn’t rigid at all!

I also have disproved the once-common charge that the Constitution permits only male presidents, and other scholars have rebutted (pdf) the charge that its original meaning permits segregation of schools.

The living-Constitution crowd leveled the opposite accusation against the Necessary and Proper Clause (Article I, Section 18, Clause 18). They claimed it was so open-ended they branded it the Elastic Clause.

The Necessary and Proper Clause grants Congress power “To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.”

“What in the world does ‘necessary and proper’ mean?” the scoffers asked. “And what about these powers ‘in the Government of the United States’? Is that a drafting mistake? The Constitution grants powers to government departments and officers, but not to ‘the Government of the United States.’” Some living constitutionalists even claimed it refers to federal authority not otherwise mentioned in the Constitution.

Most constitutional commentators have had little experience practicing law. But I had, and to me the Necessary and Proper Clause looked like a phrase I’d seen in agency and trust documents. I suspected “necessary and proper” was a common term in 18th century documents and had a specific meaning.

Investigation proved my hunch correct. During the Founding Era, “necessary and proper” and variants of that phrase were exceedingly common in legal documents. In this context, “necessary” was a technical term for “incidental,” and “proper” meant “in compliance with fiduciary duty.” I don’t have space here to explain all of these legal expressions, but I can assure you they’re not “vague.”

The Necessary and Proper Clause authorized Congress to undertake a limited number of subordinate activities the Constitution doesn’t list explicitly. My investigation also showed that the Supreme Court had misapplied the Clause in some very important cases.

I also found—contrary to what the scoffers were saying—that the part of the clause referring to powers granted to “the Government of the United States” wasn’t a drafting error or a reference to mysterious extra-constitutional authority. The Constitution explicitly grants some powers to the federal government as an entity. This last point became clear from examining colonial documents familiar to the framers but unknown to most commentators.

My Necessary and Proper Clause findings were published in a book published by Cambridge University Press and in other outlets (pdf).

Over the past quarter century, I have examined many other parts of the Constitution previously pronounced rigid, vague, or meaningless. I have found that all have fairly well-defined meanings. Moreover, most are flexible enough to accommodate modern political activity consistent with the Constitution’s underlying principles of freedom, federalism, and limited government. Admittedly, they’re inconsistent with the goals of many of the “living constitutionalists”—regimentation, centralization, and cultural destruction.

Of course, altered conditions occasionally do require constitutional change. To respond, we can use the amendment process. We don’t need to kill the Constitution on the pretense of letting it live.

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