Clashing Visions of a 'Living' Constitution

Abstract

Delivered in fall of 2010. This article is edited printed version of Annual Simon Lecture of Cato Institute. To be published in Cato Annual Supreme Court Review of 2011, article first sets out and briefly reviews several clashing schools of interpretation in Supreme Court.So, he notices, differing widely on what it means to speak of a living Constitution, various judges and their academic acolytes have pressed quite different theories over a considerable period of time. Ranging from particular enthusiasts of non-originalism, to Ronald Dworkin' s metaphoric likening of Supreme Court to Hercules, to Bruce Ackerman's special notion of non-textual (i.e., resulting during special constitutional moments), and nearly a dozen theories in all, each theory advances its own idea of a living constitution. Each also expressly rejects idea that amendment processes enumerated in Article V provide sole means for updating Constitution (and, indeed, each offers itself authentically complementary to those Article V provisions such they are).This article in turn critiques these and several other theories. It urges judicial fidelity to Constitution as is, in keeping with judges' sole express oath of office laid in Article VI, reserving changes to means provided in Article V.It is author's contention, moreover, that it is partly due to negative synergy of judicial usurpation of amendment processes that genuine amendments are far harder to secure today than when James Madison introduced his original list of twelve proposed amendments in 1789, of which ten promptly received sufficient state resolutions of ratifications to become Bill of Rights of 1791.Amendments, he asserts, are important; like cambian rings, they are real and physical, recording real change. Judicial amendments, in contrast, he suggests, are frankly more nearly merely in likeness of the emperor's new clothes, i.e., fictive garments passed off by clever tailors bent on bamboozling credulous lining sidewalks or just standing in streets. The reader is invited to determine which he or she frankly prefers. The author leaves no doubt of his own preference, such it is.