Yesterday, I spoke on a panel on the occasion of Constitution Day here at Marquette University.  What follows is a copy of my remarks: 

Today’s panel asks, “What does it mean to stick to the Constitution?”  This is another way of asking how we – you, me judges, lawmakers – should go about interpreting the meaning of the constitutional text.

Today, this interpretative question is often presented as a binary debate between either originalism or a “living Constitution.”

My argument today is that this clear dichotomy is nothing more than an illusion.  There is not a choice between two stark extremes.  This is because, in practice, most originalists and advocates of a living Constitution tend to meet in the middle.

So this debate between originalism and the living Constitution is often very loud and very energetic, but it tends to distract us from the real question.   Both sides of the debate behave as if the original intent of the Framers of the Constitution is important.  They argue very heatedly over how much weight to give to this original intent, in comparison to other factors such as changing circumstances or contrary precedent.

Should the original intent of the drafter be given 100% of the weight in determining what the Constitution means?  Or 80% of the weight?  Can it be outweighed by an absurd result, such as interpreting the Second Amendment right to bear arms so that it does not apply to women?  Or should the original intent of the drafters be just one part of the mix, weighed along with other factors but not necessarily predominant?

This debate over percentages distracts us from the true inquiry, which is “how does someone in the year 2012 properly determine what the original intent of the drafters is?”  What do judges do in order to identify the original intent behind various pieces of constitutional language, and how do we evaluate whether they are doing a good job of it or whether they are mucking it up?

After all, if we are going debate the percentage weight that we should assign to the original meaning, as if the interpretation of the Constitution could be reduced to a mathematical equation, then we should recall one of the primary rules of algebra: “garbage in, garbage out.”

Let me explain why I believe that originalists and advocates of a living Constitution disagree so strongly in theory but in fact meet in the middle in practice.

Originalists are quick to concede that they do not interpret the Constitution to mean exactly what the Framers of that document meant in 1789.  One of originalism’s staunchest advocates, Justice Antonin Scalia, has said that “in its undiluted form at least, it is medicine that seems too strong to swallow.”  As Judge Harvie Wilkinson observed, in his recent book Cosmic Constitutional Theory, most judges who embrace originalism nonetheless temper its application by refusing to adopt a purely originalist meaning if doing so would overturn long established precedent or would reach an outcome that is too far afield from modern sensibilities.  For example, a Constitution that is held to mean strictly what its drafters intended would allow both government discrimination on the basis of gender and the segregation of public schoolchildren on the basis of race.  After all, the drafters of the text of the Fourteenth Amendment accepted both premises and there is little if no evidence that they saw the Fourteenth Amendment as prohibiting either practice.     

So most originalists are in fact what have been dubbed “faint-hearted originalists” or “hot and cold originalists.”  They are originalists when they like the result of that technique but they find ways to avoid pure originalism when they feel that the result goes too far.

Advocates of a living Constitution argue, on the other hand, that the meaning of the Constitution must be determined in light of the current world that we live in.  Since 1789, technology has changed, the international situation has changed, and social mores have changed.  A Constitution that doesn’t reflect these realities risks becoming detached and alien from our daily lives, and therefore risks losing relevance to our self-governance.

However, few advocates of a living Constitution would hand judges a blank slate and empower them to re-do the Constitution from scratch.  As Professor David Strauss notes in his book, The Living Constitution, judges who adopt this approach still operate under several constraints.  Strauss describes the process of interpreting the Constitution as a common law process, where the meaning of the text may evolve over time but only when it stays within the limits of pre-existing precedent and traditions.  In this way, the living Constitution is rooted in the past, just as much as originalism is rooted in the past, and it should only embrace deviations from past practice that can be explained and justified as necessary given current circumstances.

So in operation, advocates of both originalism and the living Constitution end up rejecting the extremes of their own theory and they find themselves somewhere in the middle.  After all, original intent reflects the practice and tradition that was in place at the time of the drafting.  Someone who is mostly, but not slavishly, true to original intent should arrive somewhere close to the same place as someone who is mostly, but not slavishly, true to practice and tradition.

Originalists argue that our starting point matters.  They argue that starting the interpretive approach with a bias to a strict reading of the text may not be perfect, but that doing so will result in a “correct” interpretation of original intent more often than otherwise.  They argue that allowing judges to consider evidence of practice and tradition outside of the text on the page leaves too much leeway to the judge to cherry pick evidence that supports a finding of evolving standards, and that it therefore reduces the odds of a “correct” determination of the intent of the drafters.

So the argument is that both methods of interpretation may operate similarly, but that the starting point that you choose has an influence on the likelihood of a correct outcome.  This is a mathematical argument of probabilities.

However, probabilities only work as a predictive science when you control for all variables.

And originalists fail to control for the most important variable of all: the wide variation and relative competence of the judges who will actually interpret the words on the page.

One assumption is that federal and state judges can objectively review the historical record surrounding the drafting of the constitutional provision at issue.  This despite the fact that few judges are trained historians and that most judges lack familiarity with the historical record other than what is selectively quoted by the parties in the case before them.  A second assumption is that judges can apply their powers of reason to the bare words on the page without reflecting any outside influence (whether conscious or subconscious) from their personal political philosophy.

Originalists criticize liberal judges who parse through the legislative history of a statute and selectively quote those items that support their liberal goals while ignoring those parts of the legislative history to the contrary.  However, doesn’t a judge who believes in the philosophy that the federal government should be strictly limited in its powers do the same thing when she reads a phrase in the Constitution narrowly, and selectively quotes those Framers who agree with her philosophy while ignoring the others?

The ambiguous language in some textual provisions of the Constitution was chosen precisely to paper over differences in philosophy among the Framers.  You can’t assign one definitive meaning to such ambiguous phrases without choosing winners and losers in a way that the Framers assiduously avoided.  In fact, the current debate over ObamaCare and the meaning of the Commerce Clause is more about the evolving political philosophy of today’s judges than it is about the original meaning attributed to the text by the Framers.

Moreover, while both originalism and the “living Constitution” are subject to abuse, one can argue that originalism is the more dangerous of the two—it purports to be objective and in so doing it hides its subjective biases and assumptions from public scrutiny.  At least advocates of a “living Constitution” require judges to put their reasoning in front of the public.

Say what you want about Roe v. Wade, or the cases recognizing a constitutional right to same sex marriage, but at least the judges who wrote these opinions were explicit about why the existing constitutional framework should be interpreted to encompass “new” constitutional rights.  Originalist cases like Heller, the Supreme Court’s Second Amendment case, hide their reasoning behind a judge’s choice of preferred dictionary definitions.   

I believe that we need to focus more on the nuts and bolts of identifying original intent, and less on the debate between originalism and the living Constitution.  By all means, let’ stick to the Constitution, but let’s also stop sticking it to the Constitution.