A Republic, If You Can Keep It

by Neil Gorsuch

  Living constitutionalism seems far harder to square with the Constitution’s design on these scores. Ask yourself: What is the point of the promise that the people and their representatives alone may make and amend the Constitution’s written terms if judges feel free to “evolve” the meaning of those terms to include whatever content they think appropriate? In the living constitutionalist’s world, it seems that the promise of self-rule risks becoming little more than a ruse and the amendment process a remnant. The Constitution’s ratification and amendment procedures assure that before any change to our foundational law can be made everyone will have the chance to be heard. It is a process that deliberately engages the collective wisdom and judgment of the nation. It is also one that commands deliberation and caution, guarding against overeasy changes by passing political factions in response to the latest fads. All these promises of self-government and safeguards for minority interests go out the window when the job is assumed by a committee of nine lawyers who feel free to do as they wish. And if constitutional amendment can be accomplished so easily now through judges, why bother with the real amendment process? Is it any wonder that, as living constitutionalism has risen, the more democratic amendment process has atrophied? From 1789 to 1971 the people amended the Constitution twenty-six times, an average of one amendment every seven years. Even if you discount this number for the Bill of Rights, which adopted ten amendments at once, from 1792 to 1971 the average is still one amendment about every eleven years. Meanwhile, in the past forty-seven years, a period more or less coinciding with the reign of living constitutionalism, the Constitution has been amended just once.

  Notice, too, another incongruity in the living constitutionalists’ position. Once again, they will concede that sometimes the only proper mode for lawmaking is through the processes prescribed by the original understanding of the Constitution. Article I, for example, provides that a bill cannot become law until it passes both houses of Congress and is signed by the president (or passed over his veto). No one seriously argues that the legislature can make a new law except through bicameralism and presentment. So why argue that the judiciary should be able to effectively rewrite the ordinary and original public meaning of the Constitution and its amendments outside the prescribed amendment processes? What justification is there for abiding only some constitutionally prescribed formalities for new lawmaking? Again, I struggle to imagine a persuasive reply.

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  BEYOND ALL THIS LIES another set of clues our Constitution offers about its proper interpretation. The Constitution vests only the “judicial Power” to resolve “cases” and “controversies” in the federal judiciary. It then goes on to insulate the judicial branch from political control through life tenure and salary protection. These terms and protections, it seems to me, also point firmly in originalism’s direction.

  Start with the term the “judicial Power.” In our Constitution, the framers took pains to divide the legislative from the judicial powers—to divide the power to make law and the power to interpret it. Our Constitution reserves all lawmaking power (statutory and constitutional) to the people and their representatives. The framers understood the lawmaking power as the authority to make rules of conduct governing our society. Often enough, that power involves little more than choosing between competing and incommensurable goods. Should we prioritize improving our Internet or transportation infrastructure? There is no right decision here, just choice, and it is a choice properly left to a self-governing people and their representatives to make. Because of the immense power of legislation to affect the people’s lives, liberty, and property, the framers not only created a deliberately difficult process for adopting new laws but also usually required new laws to apply only prospectively and generally to all persons, the better to safeguard fair notice of the law’s demands and equality in its application.

  Meanwhile, when the framers spoke of the judicial power, they understood it to be entirely distinct and involve none of these things. To them the judicial power wasn’t to be used for making new rules of general applicability for society that often require raw choices between competing goods, but a neutral authority for resolving disputes over the application of existing laws to completed events. While the business of making new laws calls for value judgments and self-governance, the business of ensuring that existing laws are fairly applied to everyone calls for a dispassionate arbiter who is not responsive to majoritarian pressures.

  That the legislative and judicial powers are distinct in these ways finds confirmation in the Constitutional Convention, where the framers considered four proposals to mix the two sorts of powers. Yet time and time again, these proposals went down to defeat. Elbridge Gerry said that it “was quite foreign from the nature of [the judicial] office to make them judges of the policy of public measures.” Rufus King added that judges should “expound the law as it should come before them, free from the bias of having participated in its formation.” And Caleb Strong said that “the power of making ought to be kept distinct from that of expounding, the laws. No maxim [is] better established.” In fact, I am aware of no evidence that anyone at the framing or during the ratification debates thought that the Constitution permitted judges to update its meaning over time. To the contrary, when the Anti-Federalists raised fears that judges might improperly treat the Constitution as a living document, the Federalists defending the Constitution responded not by arguing that judicial updating was proper but by asserting that impeachment would be an available and adequate remedy.

  Insulating judges from democratic accountability also reveals the founders’ assumption that judges would resolve ambiguity using neutral and well-known rules of interpretation, not their own “living” and “evolving” values. Life tenure makes little sense if judges are supposed to be nothing more than politicians wearing robes. Insulating the federal judiciary from the political process—and exempting judges from the procedural safeguards placed on the exercise of legislative power—cannot be easily explained if you expect them to make value judgments on policy grounds. Only because he understood judging to be a distinct discipline guided by neutral interpretive principles could Hamilton credibly argue that the judiciary would be the “least dangerous” branch and would exercise merely “judgment” and not “will.”

  Originalism fits with the framers’ design. It respects the line between making new law and the far more modest judicial power of interpreting law according to neutral principles. Consider first the goal of originalism: to ascertain the ordinary and public meaning of the Constitution’s text at the time of ratification. Notice that originalism can describe a judge’s goal in interpretation without reference to any value judgments or subjective preferences. The goal is not to “do justice” as the judge personally may see it, but to enforce the Constitution as written. Consider, too, the originalist’s tools, each one value-neutral. Originalists often begin their inquiry by examining dictionary definitions and other contemporaneous written sources to determine the ordinary public meaning of a word at the time the constitutional provision at issue was enacted. Because the Constitution is a law and invokes legal terms of art, originalists will also consult how those terms were understood and used at the time of the founding. Even seemingly broad phrases take on more concrete meaning this way. So, for example, “due process” doesn’t mean free-floating notions of “fairness”; it isn’t a license for judges to inject their own value judgments. Rather, this phrase was long used in the common law and was understood to refer to specific, ancient, and traditional procedures afforded to free persons in England before the government could take their lives, liberty, or property. Considering an interpretation in light of the Constitution’s structure also helps to confirm or disprove a possible understanding of a term. So, for example, the relationship between the various vesting clauses (which grant different powers to legislative, executive, and judicial actors) helps us to understand what each of those clau
ses was understood to include and exclude. Finally, originalists will compare their interpretation against early practice. So, for example, if the First Congress unanimously hired a chaplain to say a prayer before conducting legislative business and no member of the public complained, that might be some evidence the practice didn’t violate the original meaning of the Establishment Clause. With a yardstick and tools of interpretation that are reasonably objective, you can criticize a judge’s handiwork in an objective manner.

  By contrast, living constitutionalism cannot easily claim such consonance with the separation of powers and the limited nature of the judicial power. Why would the Constitution bother to distinguish so carefully between the legislative and judicial powers if judges were really just supposed to be superlegislators free to alter not just statutes but the Constitution according to their own evolving sensibilities? And on what account does it make sense to insulate judges from democratic processes if they do not seek to apply neutral principles to discern what the law is but feel free to enforce the law as they think it should be? Jefferson warned that “[t]o take a single step beyond the boundaries” established in the Constitution “is to take possession of a boundless field of power.” Exactly so.

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  HAVING SAID SO MUCH about particular constitutional clues, I should be careful not to overlook the forest for the trees. Each of the constitutional clues I’ve discussed so far was adopted as part of a broader project: to ensure the rule of law. At a minimum, the rule of law demands fair notice of the law and equality in its application. The government must be bound by fixed rules announced in advance; the people must be able to conform their conduct to these rules; and the government must be prevented from using retroactive or malleable rules to single out unpopular groups for disfavored treatment. “Freedom of men under government,” John Locke wrote, “is, to have a standing rule to live by, common to every one of that society…and not to be subject to the inconstant, uncertain, unknown, arbitrary will of another man.” At the end of the day, that’s what our Constitution sought to achieve.

  Originalism reinforces these rule-of-law values of notice and equality. Most obviously, by interpreting the text according to its ordinary public meaning, and accepting that it cannot be changed outside the amendment process, originalism ensures that citizens know with some predictability the content of their constitutional rights. And that, in turn, means the people know when their rights are violated, the better to hold the government to account. Originalism, too, helps to ensure equality in the law’s application. Everyone gets the benefit of the written law’s terms. The least powerful among us get the same treatment as the most powerful, and cannot have their rights balanced away by judges. It does not matter, say, whether the judge prefers law enforcement interests to criminal defendants.

  Meanwhile, what happens to the rule-of-law values of notice and equality before the law if we abandon originalism for living constitutionalism? Judges are endowed with the extraordinary power to rule retroactively with a full view of each party’s completed and unchangeable actions. That’s fine when judges are limited to applying value-neutral rules to enforce the original understanding of the Constitution’s written terms. But what happens when judges can “evolve” constitutional commands in light of their own values? Who can guess how they will rule? And who stands to benefit? Maybe the few will be able to speculate successfully about (and perhaps even influence) what judges will do in this unbounded world. The many, and certainly the least among us, cannot be expected to fare so well.

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  IN CASE YOU THINK I overstate the inconsistency of living constitutionalism with our written Constitution and the rule of law, consider the theory’s first serious manifestation in the Supreme Court’s case law: Dred Scott v. Sandford, a case I discussed earlier. There, the Court found a substantive due process right to own slaves in Territories of the United States that even Congress could not extirpate. Perhaps no decision before or since has sent such a lightning bolt through society. And for good reason. Where exactly in the Due Process Clause or anywhere else in the Constitution can you find such a right? The truth is, Dred Scott conjured it out of thin air and the only good thing to come of the decision was that it spurred an inspiring originalist dissent from Justice Benjamin Robbins Curtis, who, in my judgment, put the originalists’ case about as well as it has ever been put. He said that “when a strict interpretation of the Constitution, according to the fixed rules which govern the interpretation of laws, is abandoned, and the theoretical opinions of individuals are allowed to control its meaning, we have no longer a Constitution; we are under the government of individual men, who for the time being have power to declare what the Constitution is, according to their own views of what it ought to mean.” Just so.

  Nor is there any guessing where this boundless power the living constitutionalists claim will lead. If the Constitution isn’t to be interpreted by the same traditional rules that govern the interpretation of other written laws, by what rule is it to be interpreted? Living constitutionalists say we should depart from the original and ordinary meaning of the text in service of extraneous substantive values. But which values should guide us? Maybe it should come as little surprise that, as Professor Raoul Berger put it, as soon as we depart from the original meaning we wind up with “as many theories as writers.” Today, some living constitutionalists say judges should recalibrate the political processes to promote more democracy; others wish us to promote economic efficiency; and on and on the proposals parade. But the divergence of all these theories betrays a common truth: If we do not seek to enforce the law’s original public meaning, we must introduce some extraneous value to guide our work.

  Don’t take my word for it; take it from some of the more prominent living constitutionalists. Professor Mark Tushnet has said: “I am invariably asked, ‘Well, yes, but how would you decide the X case?’…My answer, in brief, is to make an explicitly political judgment: which result is, in the circumstances now existing, likely to advance the cause of socialism? Having decided that, I would write an opinion in some currently favored version of Grand Theory.” Dean Erwin Chemerinsky has suggested that justices “inevitably” need to “make value judgments that come down to their own ideology and life experience.” And Judge Richard Posner has explained that he “tr[ies] to improve things within certain bounds”—“to figure out, what is a sensible solution to this problem” without worrying “about doctrine, precedent, and all that stuff” and then he adopts it, unless Supreme Court precedent blocks his path. Maybe originalism isn’t perfectly determinate or doesn’t always lead where you would like to go. But in a world of imperfect choices, which vision of the judge’s role do you think fits best with our written Constitution? And which vision of a judge’s role fits best with a republic premised on self-rule?

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  IN CLOSING, I’D LIKE to share one final thought with you. When these constitutional interpretation debates arise, often the first place my mind takes me is not to the Constitution or The Federalist Papers. Instead, I recall a scene from Robert Bolt’s play about Sir Thomas More, A Man for All Seasons. There, More’s family urged him to arrest a man they thought evil even though no law clearly forbade his conduct. More objected, asking: “What would you do? Cut a great road through the law to get after the Devil?” Without hesitation, his son-in-law replied, “I’d cut down every law in England to do that!” To which More answered, “Oh? And when the last law was down, and the Devil turned round on you—where would you hide…the laws all being flat?…[I]f you cut them down…d’you really think you could stand upright in the winds that would blow then? Yes, I’d give the Devil benefit of law, for my own safety’s sake.”

  Sometimes, debates between living constitutionalists and originalists become mired in minutiae. But in the end constitutional theory is about who decides the most important questions in our
society. Will it be unaccountable judges? Or will it be the people themselves? For my part, you can count me with those who would conserve the law’s forests, and with Jefferson, who reminds us that “[o]ur…security [lies in] the possession of a written constitution. Let us not make it a blank paper by construction.”

  A CASE FOR TEXTUALISM

  Statutory interpretation may be the accounting of the legal field. Nothing else quite puts people to sleep in the same way, but few things are as important. The statutes that Congress and state legislatures pass govern everything from the air we breathe, to the food we eat, to whether someone must spend the rest of his life in prison. Selecting (and refining) a sound theory for interpreting those laws, then, is a critical task for a judge. As I seek to explain here, I believe that many of the same clues that suggest judges should use originalism in the interpretation of the Constitution also suggest we should use textualism in the interpretation of statutes.