The Original Theory of Constitutionalism

Abstract

The conflict between various versions of "originalism" and "living constitutionalism" has defined the landscape of constitutional theory and practice for more than a generation, and it shows no sign of abating. Although each camp has developed a variety of methodological approaches and substantive distinctions, each one also returns to a core concern: the democratic authority of constitutional review. The late Justice Scalia crystallized the originalist concern in his dissent in Obergefell v. Hodges: “It is of overwhelming importance . . . who it is that rules me. Today’s decree says that my Ruler, and the Ruler of 320 million Americans coast-to-coast, is a majority of the nine lawyers on the Supreme Court.” The concern voiced by Scalia is, in a word, usurpation—the arrogation of the right to rule by the judiciary, invoking the authority of the Constitution’s "We the People," but responding, in fact, to the vicissitudes of present-day party politics, social movements, and what Scalia once famously called "Kulturkampf." On the living-constitutionalist side, the core concern is the Constitution’s legitimacy in the eyes of those it rules today. Here, too, it might be said that the question remains "who it is that rules me." But living constitutionalism holds that "my Ruler" cannot legitimately be the mummified hand of those who ratified constitutional text long ago, when “the people” was restricted to adult white males (and often to property holders) and formal discrimination on racial and other grounds was widespread. Whatever “equal protection” or a “right of the people” might have meant to their ratifiers, the argument goes, legitimacy requires that they be acceptable to a twenty-first century polity when they are invoked today to weigh the constitutionality of state action.