Contemporary Living Constitutionalism…Is Incoherent.

This is the abstract of a paper titled Originalism All the Way Down: Or, the Explosion of Progressivism, written by Peter Martin Jaworski of Georgetown University, it is a bit of a slog and requires a lot of focus and thought for a non con-law guy but it is very, very good, here is the Abstract – the full paper is available for free download at the link:

It is often said that the Constitution does not interpret itself, that we are in need of a theory of interpretation for constitutions. This need has led to a flourishing literature on constitutional interpretation. Statutes, also, stand in need of a theory of interpretation, and that obvious need has led to a robust literature on that subject. What is said too infrequently is that Supreme Court rulings do not interpret themselves, that we are in need of a theory of interpretation for rulings. 

At least on its face the very same problems of interpretation apply to the written judgments of the Supreme Court as apply to written constitutions and statutes. Whenever the meaning of a ruling, or some part of it, is not immediately apparent — maybe because the still-standing precedent is decades old and written in a manner that would now be anachronistic, or because the Justice writing the opinion was laconic — should we try to discern what the Justices intended or meant to say? Should the guide, instead, be what a reasonable person would understand by the text at the time of the promulgation of the relevant ruling? If the ruling still stands, but is decades old, shall we breathe life into it by reading it in accordance with contemporary values? Shall we make use of records of oral argument, or what Justices may have said extra-judicially, or will we restrict ourselves to the text of the ruling alone?

In this essay, I assess the question of what is an appropriate doctrine of ruling interpretation by applying the arguments of the living constitutionalists to Supreme Court rulings. Contemporary proponents of a progressive doctrine of interpretation for constitutions — variously called the ‘living tree,’ ‘living force,’ or ‘living constitution’ doctrines of interpretation — appear to embrace two theses. The first thesis, which we can call the ‘progressive thesis,’ is the view that the Supreme Court ought to ensure that our highest laws are in compliance with contemporary values. The second thesis is the ‘doctrine of judicial supremacy’ which maintains that all lower judicial and non-judicial actors are to accept and adhere to the rulings of the Supreme Court.

I argue that these two theses—the progressive thesis and the doctrine of judicial supremacy — are in tension with one another. Embracing the second thesis requires abandoning the first, while embracing the first thesis requires abandoning the second. Contemporary living constitutionalism, as defended by prominent advocates like Chief Justice Beverly McLachlin, Justice Ian Binnie, Australian Justice Michael Kirby, legal scholar Peter Hogg, and others, is incoherent. 

In the end, those who embrace the progressive thesis must rely on the claim that the Supreme Court ought to have a monopoly on the use of progressive interpretation, and that lower courts and non-judicial actors must use originalist methods for interpreting the text of Supreme Court rulings. To make this argument, the advocates of progressive constitutional interpretation must be advocates of originalism — not half-hearted supporters, but enthusiastic, full-on supporters, however much they may, elsewhere in their writings, condemn originalism as a practically-flawed, unworkable, or unenlightened method of interpretation.

8 thoughts on “Contemporary Living Constitutionalism…Is Incoherent.

  1. That there is a dialectic Flaw in the Progressivist approach to understanding the Constitution is no secrat. I suppose it is good to have those deep systemic Flaws admiited to in Academic Dialogue …. it even serve some purpose.

    But the Elephant in the room is the “Legal Game”………. It is as if we had this beautiful Constitution created. Forged upon the determination to guide the protection of our Natural Rights as first articulated in united Colonial assembly by the Declaration of Independence. Then somehow the functioning of government was re-interpreted as a sort of Poker game. The dealers being the “Lawyers” and the new “agreement” was that we would all agree to this game of Interpretation …..over time the lawyers gathered all the chips….at each step of the process saying..” we did this all legally right? you all agree” ” We the People nodded because we didn’t understand the new Legal Poker Game….on and on it went…layers of Courts , Laws , interpretive bodies, the Supreme Court bestowing upon itslef the “Holy” position as the ultimate Preisthood able to define what is and isn’t Constitutional.

    Now, to question the legal issue as to the their Constitutionality, we are told we have to slog through all this morass of Legal Precident…..THOSE laws need to be addressed first before any appeal to the Original document that was meant itself as the definitive definition of our rights and the Governments Limits.

    The Constitution was written simply because its concepts are simple and meant to be inviolate. Any law which obfuscates those simple basic tenants is suspect. Any person which tells you , that you need first to parse and understand the Filter-garb of the Poker-player Lawyers and their legaleeze….however many decades may have passed since they penned it, is doing nothing more than deflecting you from your simple Natural rights.

    If anything in the law cannot be explained SIMPLY to those it is intended to affect….then its intention should be suspect. As Einstein once said , and I paraphrase…”if you cannot explain the essence of your Scientific Theory to the Butcher….then there is something gravely wrong with your theory”.

  2. Don – you are exactly right – in spite of that thing that I can’t talk about – making laws for 312 million people to cover an infinite number of interactions and situations is impossible. Our Constitution was designed for self-rule – and I don’t mean for us to vote – I mean that it is dependent on each individual to live up to the contract and execute life with the morality that renders written law unnecessary – where your word is your bond, honesty and honor matter and justice is a the rule, not the exception.

    Writing laws creates a system like Genesis Chapter 5 where one begat another begat another and so on, ad infinitum. Laws are made to correct laws and more to address the unintended consequences of all of it. It is a Gordian Knot of legal largess.

    Since I am on a Jefferson/Madison kick lately, I’ll quote James Madison:

    It will be of little avail to the people that the laws are made by men of their own choice if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood.

  3. “The first thesis, which we can call the ‘progressive thesis,’ is the view that the Supreme Court ought to ensure that our highest laws are in compliance with contemporary values. The second thesis is the ‘doctrine of judicial supremacy’ which maintains that all lower judicial and non-judicial actors are to accept and adhere to the rulings of the Supreme Court.”

    The author needs to study the Progressives a bit more. These two are NOT mutually exclusive as he asserts. In fact, they are mutually supporting. The Progressives first set up a system whereby the Constitution is deemed the purview of judges and lawyers and academic scholars ONLY, then the living document notion is applied to the law with the full knowledge that the judges and supporting cast will support whatever decisions the living document crew believe they need at the moment while discounting any that oppose their agenda — even if they have to discard previous decisions they formerly upheld. In fact, I’d call the mutual support of these two doctrines — combined — the “Progressive thesis” and, if one bothers to look at the TRENDS in our courts over the past few decades, this is exactly the PATTERN you will see. read your history — especially that written by the Progressives to other Progressives, and you’ll see this two-pronged attack on the original intent of the Constitution is by design. It was expressly developed to destroy the system our founders believed they had constructed where the Courts would be more or less constrained by the letter of the Constitution. So they are not mutually exclusive as asserted, but mutually supportive as they are practiced.

    This is all in our history. I’ve detailed some of it here on the RNL. So, as to why the author here seems to have missed this is beyond me.

    At the establishment of our constitutions, the judiciary bodies were supposed to be the most helpless and harmless members of the government. Experience, however, soon showed in what way they were to become the most dangerous; that the insufficiency of the means provided for their removal gave them a freehold and irresponsibility in office; that their decisions, seeming to concern individual suitors only, pass silent and unheeded by the public at large; that these decisions, nevertheless, become law by precedent, sapping, by little and little, the foundations of the constitution, and working its change by construction, before any one has perceived that that invisible and helpless worm has been busily employed in consuming its substance. In truth, man is not made to be trusted for life, if secured against all liability to account.

    Thomas Jefferson, letter to Monsieur A. Coray, Oct 31, 1823

    And this is precisely why the Progressives have launched their strongest and most devastating attacks on the Constitution through the judiciary.

    • Yeah, I’m pretty sure he missed that:

      Jaworski, Peter Martin
      Georgetown University
      Washington, DC 20057
      United States

      Bowling Green State University, PhD in Philosophy 2012
      London School of Economics, MSc in Philosophy & Public Policy 2005
      University of Waterloo, MA in Philosophy 2004
      Queen’s University, BA(H) in Philosophy 2002

    • I described in another “long” comment how I personally discovered and hypothesized, from reading 2 centuries worth of “landmark” cases, what Joe explains from the progressive’ writings.

  4. Note the quote: Jefferson is decrying the very thing this author describes as the “progressive thesis,” whereby the constitution is changed or amended by judicial decision. At the same time, Jefferson is also attacking the de facto supremacy of the judiciary, the author’s notion of “judicial supremecy.” Note how Jefferson is claiming they work TOGETHER – not apart from each other. This is exactly what I said – AND IT IS WHERE I GOT THE FRIGGIN’ IDEA! And by attacking BOTH – in conjunction – Jefferson authoritatively implies that NEITHER were the founders’ intent. So, when you appeal to the authority of this author to smite me, you slap the man you have been trumpeting as a founding genius upside his face – THOMAS JEFFERSON!

    In the past few days — you have made Burke’s case for the establishment over the individual; placed “bad law” supreme to the Constitution; asserted that the People are no longer supreme but subordinate to govt.; and thus, defended Hobbes’ case for the leviathan. And now? Now you have attacked Jefferson in your blind charge to silence my opinion which – in more cases than you have or will ever realize – are nothing more than restatements of Jefferson’s.

    You’re right: we should be done with this — ALL of it – and I am.

    BTW: Utah, I am NO respecter of letters after a name (or rank, for that matter). The Dean of my philosophy department had lots of letters after his name, and was a recognized EXPERT of John Stuart Mill, yet I battled him into a submission in class. I still remember him literally backed up against the chalk board, hands in the air, chuckling when he said “You got me.” He respected me from that day forward.

    We had a certified GENIUS who handled the logic classes for our philosophy department. BRILLIANT liberal. He told us that, if we wanted an A in his class, our assignment for basic logic class was to either prove the unborn was a person, or that God existed. I did BOTH! Only A in 110 students. What’s more, I was there when he told the Dean he could not break my argument (I proved both with 1 argument). he and I became good friends, as well.

    In fact, the only professor who did not like me was the departments only conservative professor, Dr. Rodriguez. She loved Edmund Burke, and she just “knew” I was going to love him too. You should have seen the look on her face the second week of class, after we had to read Burke over the weekend, when she asked me — with an expectant smile — what I thought of Burke and I told her HE WAS AN IDIOT! Today, I am more convinced the man was an idiot (note: you can be a genius and still be an idiot).

    So, just because you cite a guy with lots of letters after his name, don’t think I give a rats rear end — especially whent he guy is wrong.

  5. Never forget: What “THE DUTY” of all Representatives, Senators, the President, and Justices is:

    “I do solemnly swear (or affirm) that I . . . will to the best of my Ability, preserve, protect and defend the Constitution of the United States.” (Not preserve, protect, and defend Illegal/Unconstitutional Government actions and lawyer’s jobs.)

    The oath IS NOT to allow or grow Government programs and Government jobs, and stifle “the people” from seeking redress from their Government for abuses of that government.

    If an elected politician, or an employed bureaucrat, or an appointed politician/lawyer, seeks to promote a law, or execute a law, or allow a law, which goes outside the “limited powers of our Constitution”, then they are failing in their sworn duty. Knowingly or not, Intentionally or not, failing in their promise and oath.

    Pursuant to Don’s suggestion above: this is an edited, copied and pasted comment from “Rand Paul’s new 4th Amendment”: My explanation of the process that has actually occurred with the Judiciary in our America allowing the “general Government” to act extra-Constitutionally and exceed it’s Constitutional authority.

    Progressivism could not intellectually argue and persuade “the People” to voluntarily adopt their proposed policies and system of GOVERNMENT. Legal Amendment pursuant to Article 5 of the Constitution, undoing the Constitution was, and still is impossible. A 3/4 vote being required. So Progressives created a way where the Courts, Judges, could re-write the Constitution, by adopting Stare Decisis and the “living breathing document” hypothesis and structure for deciding if new laws are Constitutional or not.

    Determining Constitutionality:
    …so let us get to the real heart of the matter: past what a lawyer, a judge, says is Constitutional based solely on case law (former decisions of prior Judges’ opinions, known as “stare decisis”), and go directly to the Constitution.

    I will try to explain with words. Not sure I can do it this way, but I know I can over that beverage you’re gonna buy me when you come to my town…. (This is very generalized and not always accurate, I will change and modify this “big picture working hypothesis” as I consider and learn more)

    1789 Constitution adopted.
    1791 Bill of Rights provided and adopted per the promises made in order to adopt the Constitution in 1789.

    Very little happens for a long time.

    The Constitution is amended on average about 1 time every 10 years for the next century.

    Next, the “governors-elites” begin to attempt to do things they can’t get public support for a 3/4 vote for amending the Constitution. [Think Woodrow Wilson, the fabian socialists, and their progeny]

    The “governors- elites” pass Congressional laws, which aren’t allowed in the Constitution

    Then, the “governor-elites” begin tiring of the Supreme Court telling them “You can’t do that!”
    The US Constitution doesn’t grant Congress and the Federal Government that power. You have to amend the Constitution according to Article 5.

    One little problem though. “The People” understand what is in the Constitution, and won’t allow amendment …

    1930′s FDR appoints 8 of the 9 Supreme Court Justices and BINGO ! Are you paying attention now?

    Now the Supreme Court changes the “LEGAL test and emphasis in 2 ways.
    First: “Well, The Constitution doesn’t say the Feds CANNOT do, SOOOOO, the Feds can do “it” “here”, and
    Second: We will now decide Constitutionality based on “stare decisis” first.

    Next case up: Looks back at the last case, “stare decisis” says the Feds can do it “here”, So the Feds can do “there”.

    Next case up: Looks back at the last case, “stare decisis” says the Feds can do it “here”, and “there”. So the Feds can do it “over yonder”.

    Next case up: Looks back at the last 3 cases: Constitutional “here”, “there”, “over yonder”… So, Constitutional “ALL THE TIME”….

    Notice: The court has just gone from “limited powers” viewpoint (based upon the language in our Constitution) to a “not prohibited” viewpoint based upon “stare decisis” and a wrong decision.

    [Now, a young history buff whose grandfather talked of the founders while he was growing up, and who happened to have a math, science, and business background comes along and goes to law school. Gets on a chalkboard, throws a line of cases up on the board and shows the class how the Supreme Court forgot the first step (maybe purposely). And asks, “am I missing something here? Conlaw professor smiles — “Spot on” ]

    Based on stare decisis: The 5th case IS found legal, ie. constitutional.

    BUT wait a minute. The 5th case is actually considered in THE original Constitution. And according to the Constitution: It IS Un- Constitutional….. But the new Judges and lawyers can’t have that, that would find their old buddies and mentors were wrong, so we won’t mention that in our opinion.

    So the 6th case is found Constitutional. and so on and so forth…(after all, this is a veerrrrrry complicated matter which requires a highly educated progressive expert, who happens to be a lawyer…)

    The point of all this IS, every case should have to be compared to the Constitution FIRST, not “stare decisis” first.

    Compare the Government’s actions with this very simple, basic language, first, every, single, time:

    Amendment IV
    The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

    But all the lawyers and Judges say: “We can’t have “go back to our Constitution first!” That is too simple. We would all be out of a Job, including most of the Federal workers….

    Soooooo the lawyers and Judges choose “Stare Decisis” to determine what is Constitutional, NOT the Constitution’s original language. And they preach the “new gospel” (as Joe is so fond of explaining) of the Constitution is “a living breathing document”.

    And everyone forgets about the Federal Government’s – “Robert’s Rules of Order”, ie. Article V Amendment to the Constitution.

    In effect and reality, the 4th amendment is found Un-Constitutional based upon Stare Decisis, so a new up and coming Congressman/Senator, is told, well the Constitution is a “living breathing document” and the 4th amendment no longer means what was written in 1789. The 4th amendment means what the Courts say….

    Sooooo, young upstart Congressman says, I will just introduce a “new Law” re-defining the 4th amendment to mean exactly what it says in the Constitution….

    And the lawyers and Judges say “wait a minute” you moron …” you can’t do that, we are the experts that determine what is legal and not, and besides, we will all be out of a job, along with half the nation… ”

    So I suggest to all Patriots (the Americans who love America and who the democratic leadership accused of being terrorists for respecting the Constitution):
    Compare the action taken with the Constitution first. After all, once ratified in accordance with Article 5 of the original Constitution, the 4th Amendment IS the Constitution, as I have explained in other posts.

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