Popular Constitutionalism

From Sanford Levinson, Professor of Law of the University of Texas, on interpreting the Constitution:

“It really is open to interpretation by anybody, in what I sometimes call the lawyerhood of all citizens. Anybody in a bar can get into a shouting argument over what equal protection means, or the right to free speech.”

He must hang out in very different bars than the ones I’ve known, but the assertion is interesting. The article goes on to say:

Those arguments can and should have consequences, according to scholars who endorse what they call “popular constitutionalism.” “Basically, it’s the idea that final authority to control the interpretation and implementation of constitutional law resides at all times in the community in an active sense,” Larry D. Kramer, the dean of Stanford Law School, wrote in The Valparaiso University Law Review in 2006.

This is versus originalism, which essentially argues the meaning of the constitution doesn’t change over time, and its meaning is divined either through original public meaning or original intent (of the founders). I’m probably a bit more of a pragmatic originalist. I think you have to be rooted in the text of the document, and when its meaning is apparent and has a clear meaning, you interpret along textual lines. But I also tend to agree with Jefferson, who once wrote:

The idea that institutions established for the use of the nation cannot be touched nor modified even to make them answer their end because of rights gratuitously supposed in those employed to manage them in trust for the public, may perhaps be a salutary provision against the abuses of a monarch but is most absurd against the nation itself. Yet our lawyers and priests generally inculcate this doctrine and suppose that preceding generations held the earth more freely than we do, had a right to impose laws on us unalterable by ourselves, and that we in like manner can make laws and impose burdens on future generations which they will have no right to alter; in fine, that the earth belongs to the dead and not the living.

My big problem with doctrinaire originalism is precisely what Jefferson speaks of here, of previous generations imposing their “burdens on future generations.” So when Alan Gura, in the the oral arguments of McDonald says the court should be originalists in its identification of a right, but take a modern view of that right, I can relate to what he’s saying.

How much of a role should originalism play in constitutional interpretation versus such a “Popular Constitutionalism” method? Keep in mind you will generally arrive at an individualist Second Amendment either way. But originalism and popular constitutionalism probably yield different results when it comes to interpreting the boundaries of that right. The founders’ concern, which prompted the inclusion of the Second Amendment, had very much to do with the distribution of military power in society and keeping military power be in the hands of the people. It’s not that they didn’t believe in individual self-defense, but that wasn’t the primary intent. From the founding up to the civil war, the public understanding became centered around individual self-defense. This is largely the popular understanding today, and what The Court went with in Heller. It’s always seemed to me that original public meaning originalism (as supposed to original intent) is actually a form of popular constitutionalism, though one that looks back at the meaning at the time the text was adopted, instead of how people view it today. A Second Amendment right centered on the original intent distribution of military power probably looks very different from one centered on self-defense in an original public meaning context, which looks different yet from one in a modern popular constitutionalism context.

I’m not sure that any method has to necessarily disparage the other when it comes to the right to bear arms, but which one is most legitimate? Which one is most rooted in the real world? Which one best preserves liberty?

9 thoughts on “Popular Constitutionalism”

  1. My big problem with doctrinaire originalism is precisely what Jefferson speaks of here, of previous generations imposing their “burdens on future generations.”

    And that’s why the founders included a process by which the constitution can be amended. Change by reinterpretation of what was meant by those who passed it creates a situation where the meaning of the law is amorphous and ambiguous. If you can’t be sure that the law will be read the same in 30 years, or 30 days, then that creates a situation where the law itself can become illegitimate, as people will lose faith that the law means what it says.

  2. I’m no lawyer, but my understanding is basically that the Constitution is a contract that all citizens are party to. Thus the idea that a contract can be a “living document” aka popular constitutionalism is a bit absurd.

    Image if the bank decided your fixed-rate mortgage was a “living contract” and therefore after ten years or so the bank “reinterprets” that they should double your interest rate. No thanks!

    A contract that can be “reinterpreted” arbitrarily to suit one party isn’t worth the paper its written on. The constitution can be amended, but more often than not the “living constitution” theory is simply an end run around using the amendment process.

  3. Partly i think that the idea of “popular constitutionalism” is correct. The Constitution is the ground rules for our system. It wouldn’t make a whole lot of sense for those rules to change wildly all the time a la “Calvinball,” but by the same token, it will not be static. The big changes will have to be by amendment. the smaller shifts are by the normal political process. we elect presidents and senators who are responsible to nominate and confirm judges. this is why it makes no sense to try to argue law with the judicial priesthood without preaching the gospel to the masses. it is our job as lay priests of the church of the gun to convert the masses to our point of view. (how’s that for stretching a metaphor to the breaking point?)

    we have to teach people about their rights so that they insist on keeping them. an aroused and engaged people will not permit their rights to be trampled. we can scream into the dark all night long, but if we don’t convince a majority of Americans to vote for representatives who support their rights, we’ll lose every time.

  4. I’ve listened to some of his lectures, and I think hes right and wrong. -I’m not expert in his writings, but the two times I’ve listened to him, it seems that the majority of his arguments aren’t necessarily about interpretations as much as it is about authority.

    I’m not agreeing or disagreeing, but stating the general undertone of that I extracted from his lectures.

    Generally, his main beef seemed to be against modern views of the supreme court, and a general lack of caring by the masses. As it stands now, by and large, everyone expects the supreme court to make the ultimate decision about interpretation. After the ruling, we all can sit back and complain, but ultimately cant do much about it. His point seemed to be that people need to step up and realize the the constitution ALWAYS derived its power from the people, and that as a people, we should be demanding more say in what stands as constitutional.

    He also went on to talk about the amendment process, and his off hand theories of ways to make the constitution more “people driven”

    Like I said, I have my own theories on “popular constitutionalism” but I’m keeping them to myself.

  5. Sebastian,
    IMHO Jefferson was much more an originalist than your citation of his would lead one to believe.

    The Jefferson quote you cite opines on the idea that some would believe people shouldn’t have the right to LEGISLATE, and that he doesn’t subscribe to that theory. As far as interpretation of the Constitution by the Judiciary, however, he was much more firm in his belief that no one, especially the Judiciary, should be allowed to alter what he considered to be fundamental, i.e. the Constitution. On this issue he wrote to Justice William Johnson, quite plainly:

    “On every question of construction, (we must) carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning may be squeezed out of the text, or invented against it, conform to the probable one in which it was passed.”

    -Thomas Jefferson, written to Supreme Court Justice William Johnson, June 12, 1823

  6. “Our peculiar security is in the possession of a written Constitution. Let us not make it a blank paper by construction.”
    – Thomas Jefferson

    “On every question of construction, let us carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning may be squeezed out of the text, or invented against it, conform to the probable one in which it was passed.”
    – Thomas Jefferson

  7. I don’t disagree with Jefferson on either count, and I don’t think they are necessarily mutually exclusive, though they appear to be. I think you have to be rooted in originalism, but as Justice Ginsburg pointed out, that has consequences in how we understand certain rights. Gura’s retort to her that we should use a modern understanding of rights might seem contradictory, and when it comes to doctrine, it probably is. But if the goal is liberty, some amount of contradiction might be necessary. Originalism doesn’t necessarily promote liberty.

  8. Wow, Sebastain there you go use’n a wordie word that the Founders never even knew, hoot the syntax was great but had you been at the debates in Philidelphia and used the word to convey an IDEA as pragmatic as PRAGMATIC ya would of have all them there folks scratching their heads just wondering what the hoot you were talking about.

    Just try to remember that Jefferson was addressing the burden of debt when men institute a new liberty over an existing right.

    Just go to your Law Libary and take a look at the Civil Codes enacted by your State prior to 1869 and note the hesitant inclusion of Civil Code. Then count the Civil Code enactments in 1870 and 1871 and in most States the number increased by 60 to 100%. Then just for fun go the the State House Libary and ask to see a copy of the CONSTITUTION OF THE UNITED STATES OF AMERICA for the years 1788, 1804, 1838 and 1860 and compare it to one in use today.

    While you are there ask to see the Official Dictionary of the Congess of the United States. After they dig out the Dictionary, look up thre word PRAGMATIC, then look at the date of publication of the Dictionary…(give you a hint…1870).

    Pragmatic is a word of progression invented and adopted by a progressive collection of thinkers of the Coffee House culture of the 1890’s and you will not find the word used much at all intell the late 1930’s. To quote Nakita Khrushchev and his pounding shoe routine ‘We will bury you from within.’… and another famous Nikita quote: ” Statistics are what the pragmatic experts use to forge bull shit into bullets”.

    Well Sebastain, pragmatic you are not. If anyone sees you leaning in that that direction it is not me.

  9. From Websters:

    Main Entry: prag·mat·ic
    Pronunciation: \prag-ˈma-tik\
    Variant(s): also prag·mat·i·cal \-ti-kəl\
    Function: adjective
    Etymology: Latin pragmaticus skilled in law or business, from Greek pragmatikos, from pragmat-, pragma deed, from prassein to do — more at practical
    Date: 1616

    Relevant part highlighted.

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