Sunday, September 13, 2009

The Living Constitution vs. Original Public Meaning

The Living Constitution vs. Original Public Meaning, by Clayton Cramer

There are a lot of different interpretive models, but I'm going to focus on two: "the living Constitution" and "original public meaning." "The living Constitution" became popular in the mid-1930s in response to the U.S. Supreme Court's stubborn refusal to approve some of the regulatory measures that the Roosevelt administration thought necessary to revive the U.S. economy. The concept goes back to a decision written by Justice Oliver Wendell Holmes, Jr. in Missouri v. Holland (1920), in which the power of Congress to make international treaties collided with the Tenth Amendment's reservation of powers to the states.

Justice Holmes explained that when it came to "the Constitution of the United States, we must realize that they have called into life a being the development of which could not have been foreseen completely by the most gifted of its begetters." ("Master, it's alive!") Holmes decided that the decision had to be made "in the light of our whole experience and not merely in that of what said a hundred years ago."
Some of you probably had teachers that told you the "strict constructionists" on the Court were reactionary barriers to necessary reforms. Roosevelt called them "the horse-and-buggy court." The reactionary "horse-and-buggy court" ordered new trials holding that "a defendant should be afforded a fair opportunity to secure counsel of his own choice" because they were holding America back. But they were hardly the reactionaries that many liberals back then (and now) imagined. The Scottsboro Boys were nine black men and boys accused of raping two white women and sentenced to death, either without benefit of lawyers or appointed so close to the trial date as to be useless.

Some anarchists were convicted for flying a red flag as a sign of revolution in violation of California law. On appeal to the U.S. Supreme Court, they argued that states could not violate their freedom of speech by criminalizing the flying of a flag. Those reactionaries on the Court in Stromberg v. California (1931) agreed.

The "nine old men" (as some liberals called the Supreme Court in the mid-1930s) were committed to a contract between the generations, not a living, breathing, constantly mutating Constitution. They struck down many laws that showed that they were not simply changing the rules of the game to suit their personal preferences. By contrast, the "living Constitution" theory became a method for superimposing the personal policy preferences of a majority of the Supreme Court over what the Framers intended. Throughout the period since West Coast Hotel Co. v. Parrish (1937) upheld a state law that required employers to discriminate against women (a very popular liberal cause at the time), the "living Constitution" model has been the excuse for both ignoring original intent and skipping the more demanding task of amending the Constitution when needed.

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