Transformation of Constitutional Law

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TRANSFORMATION OF CONSTITUTIONAL LAW

Over the past two hundred years, American constitutional interpretation has undergone a transformation from its early static and textualist tradition to a modern, dynamic approach wherein a " living constitution " changes to accommodate the needs of the times. Two pivotal periods in constitutional thought have catalyzed this shift away from originalism, initially starting with the Progressive reaction to the excesses of the Lochner Court, and later continuing with the warren court and its broad constitutional reforms.

For the first hundred years, American constitutional interpretation firmly adhered to what historian Michael Kammen describes as a Newtonian conception of the Constitution. Constitutional concepts and principles were static and unchanging, akin to the timeless scientific truths of Newtonian mechanics. Indeed, so firmly entrenched was this originalist approach to judicial thinking that the Supreme Court all but ignored Chief Justice john marshall's statement in mcculloch v. maryland (1819) that "[the] constitution was intended to endure for ages to come, and, consequently, to be adapted to the various crises of human affairs." The passage was cited only once in a Court opinion during the entire nineteenth century, and only a total of six times by 1945.

The dominance of literal constitutional interpretation was not entirely surprising given the strong influence of Protestant thought early in American history. Protestants rejected the priestly interpretations of the Bible espoused by Catholics, supporting instead textualist interpretations that were more freely available to laypersons. Indeed, at the time of the writing of the Constitution, the only established competitor to originalism was the common law methodology, which by the early eighteenth century had been recognized as changing and evolutionary. Nonetheless, despite the Framers' acceptance of the dynamic nature of the common law, they largely held to the originalist view. For instance, when constructing the Virginia code, thomas jefferson would entertain only ancient, "timeless" English common law rules, excluding the "uncertain" reforms proffered in the then-recent common law jurisprudence of Lord Mansfield.

The originalist approach had internal conflicts and difficulties. One problem was the degree of literalness to be applied. Were judges to interpret the Constitution on its face, considering only express terms, or were they to consider historical context and implied meaning as well? The former, the plain meaning approach, faced semiotic difficulties, since as james madison suggested, "no language is so copious as to supply words and phrases for every complex idea.…" The preference for the letter of the Constitution over the spirit also clashed with early Christian foundations, which militated against extreme literalism. "[F]or the letter killeth, but the spirit giveth life" (2 Corinthians 3:6). The historical context approach suffered its own interpretative problems, for the Constitution and its amendments had been adopted through a process of debate, representing a multitude of often contradictory intentions. Intent was not just difficult to discover; often-times a unified intent did not even exist. These deficiencies led Justice william j. brennan, jr. , later to criticize historical analysis as "arrogance cloaked as humility." it was plainly arrogant, if not unbelievable, to think that a court could accurately guess the intent of the framers decades or centuries later.

The high-water mark for a static conception of constitutional meaning centered around lochner v. new york (1905), where the Court struck down a maximum hour law for bakers as a violation of freedom of contract. Lochner 's holding, however, demonstrated the great deficiency of static, originalist constitutional interpretation; it was simply incapable of adapting to a changing world. Abstract legal concepts such as freedom of contract had grown out of touch with the practical realities of an increasingly exploitative industrial society, and originalist thinking provided no easy alternative. Lochner thus provoked a fervent reaction from the Progressives, who sought to transform the conception of constitutional law from static to dynamic to meet the rapidly changing needs of twentieth-century society.

The stage for a dynamic conception of constitutional law was set by Darwin's theory of evolution, which served to undermine the static Newtonian model of constitutionalism while concurrently suggesting that law, like science, might change over time. Progressives argued for an organic Constitution premised on Justice oliver wendell holmes, jr. 's, classic maxim fromThe Common Law (1881): "The life of the law has not been logic; it has been experience." Constitutional principles were not to be derived solely from the text, but rather were changed by customs and common experiences over time. Justice thomas m. cooley of the Michigan Supreme Court similarly supported this organic conception of constitutional inter-pretation, suggesting that the Constitution's "peculiar excellence is that it is forever adapted to the people, and expands to accommodate new circumstances and new and higher conditions of society." By the turn of the century, then-Professor woodrow wilson summarized progressive constitutional thought most markedly: "government is not a machine, but a living thing.… It is accountable to Darwin, not to Newton."

To introduce a dynamic, orgainc concept of a "living Constitution" into a still predominantly originalist legal community, the Progressives used the justification of "changed circumstances." This doctrine, pioneered by future-Justice louis d. brandeis's brief to the Court in muller v. oregon (1908), created a fiction by which the Court could maintain the aura of originalism. The Constitution remained static and unchanging; instead, the factual situation was the novelty, requiring a new, but still originalist interpretation of the Constitution. In Muller, despite the foreboding precedent of Lochner, the " brandeis brief ", as it became commonly known, successfully argued the constitutionality of an Oregon maximum hour law for women by using the "changed circumstances" argument, daringly submitting 110 pages of sociological and economic data on the modern situation of working women.

The originalist underpinning of the changed circumstances doctrine was tenuous, and failed to confine the doctrine for very long. Quickly, the doctrine became a key point of departure from static originalism. Justice benjamin n. cardozo soon expanded the doctrine to embrace the idea of a "living Constitution," advocating in The Nature of the Judicial Process (1921) that "[t]he great generalities of the constitution have a content and significance that vary from age to age." No longer was a court applying a previously fixed rule to new facts. Indeed, as Cardozo suggested, the meaning of the rule itself could not be determined independently of its times or its specific applications. Cardozo's theory of a dynamic Constitution was poignantly expressed in his unpublished concurring opinion in the Minnesota Mortgage Moratorium Case (1934):

[The Framers] did not see the changes in the relation between states and nation or in the play of social forces that lay hidden in the womb of time. It may be inconsistent with things that they believed or took for granted. Their beliefs to be significant must be adjusted to the world they knew.

Cardozo withdrew his concurrence, however, when his charge was boldly echoed in the majority opinion by Chief Justice charles evans hughes :

It is no answer to say that this public need was not apprehended a century ago, or to insist that what the provision of the Constitution meant to the vision of that day it must mean to the vision of our time.… It was to guard against such a narrow conception that Chief Justice Marshall uttered the memorable warning—'We must never forget, that it is a constitution we are expounding'—'a constitution intended to endure for ages to come, and consequently, to be adapted to the various crises of human affairs.'

Among its multitude of reforms and constitutional reinterpretations, the Warren Court's treatment of the fourteenth amendment, specifically the equal protection clause, best evinced its commitment to a dynamic and changing Constitution. Shortly after the ratification of the Fourteenth Amendment, the reconstruction Court had sought to limit and narrow the amendment's scope. In the twenty-eight years between the ratification of the Fourteenth Amendment and plessy v. ferguson (1896), which legalized " separate but equal " segregation, the Court did not once rule in favor of blacks seeking protection against racial discrimination. The Court instead consistently struck down or narrowly construed civil rights legislation. As Justice lewis f. powell, jr. , suggested in regents of university of california v. bakke (1978), the equal protection clause was "[v]irtually strangled in infancy by post-civil-war reactionism." The Warren Court endeavored to revisit and rewrite Fourteenth Amendment jurisprudence, notably in brown v. board of education (1954), harper v. virginia state board of elections (1966), and reynolds v. sims (1964).

The theory under which the Court reached its decision in Brown, which held school segregation unconstitutional, remains ambiguous. Was Plessy incorrect from the day it was decided, or had Plessy been previously correct but changed circumstances mandated a reevaluation? Chief Justice earl warren's opinion hinted at both theories. On one hand, it held that "[s]eparate educational facilities are inherently unequal," suggesting timeless, originalist principles. On the other hand, the Court also stated that it could not "turn the clock back to 1868 when the Amendment was adopted," but instead had to "consider public education in the light of its full development and its present place in American life," implying changed circumstances.

Brown 's theoretical basis proves particularly difficult to grasp because the Court desired unanimity due to legitimacy concerns. Consequently, Warren was forced to draft the opinion to avoid any specter of moral superiority that might alienate the Southern members of the Court. A suggestion that Plessy had always been incorrect would have disparaged "the Southern way of life" as it had been widely practiced for the previous fifty years.

Law clerk (and future professor) alexander m. bickel's memo to Justice felix frankfurter on the eve of Brown offered an alternative theory of a changing Constitution. Examining legislative history, Bickel concluded that the drafters of the Fourteenth Amendment had not intended to invalidate segregation at the time it was drafted. However, they had used broad language, anticipating and intending that the Court might adapt and change the interpretation in the future.

In Harper, the Court struck down a Virginia poll tax as violative of the equal protection clause, overruling a precedent of thirty years. The ensuing exchange in Harper between Justices william o. douglas and hugo black depicts the victory of the dynamic theory over the static. Douglas, writing for the majority, espoused a living Constitution, holding that "the Equal Protection Clause is not shackled to the political theory of a particular era." He further cited Brown for the proposition that the concept of equality changes with changed circumstances. This reasoning, however, provoked a bitter dissent from Black, who unequivocally denied "hold[ing] segregation in public schools unconstitutional on any such theory." For Black, who had grown increasingly disenchanted with dynamic constitutional theory, Plessy had been wrong the day it had been decided.

Reynolds further demonstrated the Court's shift to a living Constitution. In Reynolds, the Court held that the equal protection clause required equal electoral districting for both houses of state legislatures, to which Warren applied the maxim " one person, one vote ". Given that the U.S. senate is comprised of two senators per state regardless of population, the Reynolds holding could scarcely have derived from an original understanding. Its only justification was that democratic principles had evolved to mandate the "one person, one vote" principle, irrespective of original intent. After the world war ii, democracy had become a desirable ideal, no longer confined and feared as leading to a "tyranny of the majority," but rather nurtured by judicial review to further inclusiveness in a pluralistic society.

The Warren Court's expansive view of judicial power and dynamic constitutional interpretation provoked a backlash from conservatives in the early 1980s. Focusing on judicial restraint and yearning for a truer and simpler past, Attorney General Edwin Meese proposed a return to originalism, a view often adopted by the rehnquist court.

A major departure from the Rehnquist Court's originalist tendencies, however, occurred in planned parenthood v. casey (1992). In Casey, the Court considered whether to overrule the case that legalized abortion, roe v. wade (1973). Writing to reaffirm Roe, Justice david h. souter in his part of a joint plurality opinion suggested a standard under which the Court can overrule prior precedent and disregard the traditional, conservative doctrine of stare decisis. Examining the cases overruling Lochner and Plessy, the plurality opinion concluded that overruling decisions are based primarily on changing circumstances. "[T]he decisions were … defensible, not merely as the victories of one doctrinal school over another by dint of numbers (victories though they were), but as applications of constitutional principle to facts as they had not been seen by the Court before." Despite the recent emphasis on a static Constitution, the dynamic conception had re-surfaced yet again.

Morton J. Horwitz
(2000)