Constitutional Footsie

Friday, April 13, 2012
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Barbara Kelley

The term “living constitution” doesn’t poll well. That’s what Constitutional Accountability Center (CAC) president and founder Doug Kendall told participants in a teleforum sponsored by the American Association of University Women. Kendall, a self-described progressive, was explaining why other progressives need to replace the “living constitutional method” with something new. That something new, Kendall believes, is the “whole constitutional method.”

For decades, liberals (now progressives) have been advancing the living constitution approach to constitutional interpretation. The term dates back to Professor Howard McBain’s 1927 book The Living Constitution. Constitutional scholar David Strauss published a book with the same title just two years ago. Apparently Strauss had not seen the polling data, or maybe it is only in the last few months that the term “living constitution” fell out of favor.

 the whole constitution theory  
 Illustration by Barbara Kelley

In a nutshell, the idea of the “living constitution” is that a constitution drafted in 1787 cannot possibly serve the needs of a twenty-first-century society. So it is incumbent on the courts to adapt the Constitution to modern conditions and changed values. Textualists and originalists object that this approach defeats the liberty-protecting, power-restraining purposes of the Constitution. How can we have the rule of law, they ask rhetorically, if judges are free to effectively amend the Constitution.

The living constitution theory has had friends in high places. Supreme Court Justice David Souter was a quiet but committed practitioner of the living constitution theory while on the Court. In a rare public appearance at Harvard’s 2010 commencement ceremony, Souter argued that the approach has been key to many important rulings of the Supreme Court, like Brown v. Board of Education. The leading advocate for living constitution theory on the current court is Justice Stephen Breyer, though in his recently published book Making Democracy Work, he calls it “pragmatism.” Perhaps Breyer got wind of the discouraging poll results.

According to Kendall, the “whole constitution method” can replace the living constitution method in interpreting the Constitution, and even more effectively advance the progressive agenda. What is the “whole constitution” method, you ask?

Students of the Constitution will be surprised to learn that the amendments are a source of federal authority, as Kendell claims.

First, it helps to know a little bit about Doug Kendall and his CAC. Kendall first founded the Community Rights Counsel (CRC), a public interest law firm. In addition to defending environmental and land-use regulations against takings claims, the CRC was a persistent and staunch opponent of free market-oriented judicial training programs. Kendall objected that the programs were funded by corporations and others with interests in the outcome of federal cases and that they were held at “luxurious” resorts. He feared that the federal judges were being indoctrinated.

Kendall failed to get a Congressional ban on such programs, but his public, though inaccurate, claims of bias in program content and influence by funders did manage to intimidate a majority of federal judges from attending. Given his distaste for the free market, it was not surprising that it never occurred to Kendall to offer competing judicial training programs of his own.

The CRC morphed into the CAC in 2008. According to the CAC website, it is “dedicated to fulfilling the progressive promise of our Constitution’s text and history.” While the CAC is Kendall’s baby, he cannot implement its progressive mission on his own. He has a staff of eight and his Board includes such notables as Yale University law professor Akhil Reed Amar and former District of Columbia Circuit Court of Appeals Judge Patricia Wald. Former Acting Solicitor General, now Duke University law professor, Walter Dellinger and Yale law professor Jack Balkin serve as advisors to CAC.

The whole constitution theory to which these folks have subscribed seeks to co-opt ground heretofore occupied by the living constitution theory’s principal antagonists, the aforementioned originalists and textualists. These are the folks, like Justice Antonin Scalia, who insist that courts should interpret the text of the Constitution as it would have been reasonably understood by those who wrote it. But clearly Kendall does not aim for his whole constitution theory to put him in bed with Justice Scalia.

So how does whole constitution theory marry text and history to a progressive judicial interpretation of the Constitution? By the simple expedient of asserting that the amendments to the Constitution authorize the vast expansion of federal power that has occurred, with Supreme Court approval, since the New Deal.

In his comments to the teleforum, Kendall described the “arc of our Constitution’s progress” paved by the 27 amendments. “The Tea Party,” he said, “wants to keep this secret.” But wait, how did the Tea Party get into this? And how in the world would they keep the 27 amendments a secret? Every one of them has a copy of the Constitution in their pocket or handbag and might reasonably assume that progressives do as well. So what’s the secret?

The secret is that somewhere in the 27 amendments is an authorization for a vast and powerful federal government that the framers of the original Constitution could not have imagined. According to the CAC website, “[s]ubsequent amendments expanded the power of the federal government, shifting power away from the states.” Now that really is a secret. Most students of the Constitution will be surprised to learn that the amendments are the source of federal authority for the New Deal and all that has come since.

The first nine amendments actually limit power by guaranteeing individual liberties against federal intrusion. The Tenth Amendment is an explicit reminder that federal powers are only those enumerated in the Constitution and the Eleventh limits federal court jurisdiction. Five amendments deal with election or succession of the president, four with the right to vote, two with booze, two with the election of senators and congressional pay, and one with slavery.

Like every other law, the Constitution must bind officials, not empower them.

That leaves only two that actually expand federal power. The Sixteenth amendment authorizes the income tax, but does nothing to expand the purposes for which taxes may be levied. The Fourteenth amendment authorizes Congress to enforce the amendment’s provisions, an important expansion of federal power to protect constitutional liberties against state government infringements, but nothing else that alters the balance of powers between the national and state governments.

That’s all there is in the amendments. A few of them do trace an arc of progress on individual liberty, but they add nothing else to the enumerated powers of Congress.

In fact, the amendments do include a few secrets, as does the original Constitution, but they are not ones that Kendall and his allies want to reveal.

Alex Kozinski, Chief Judge of the Ninth Circuit Court of Appeals, used to give a talk during his early tenure on the Court titled “The MTV Constitution.” Kozinski illustrated his talk with an electronic board on which provisions of the Constitution were spelled out in varying sized letters, some amplified with bright lights. Among the provisions in large, illuminated type were the commerce clause, the free speech clause, and the Sixth Amendment protections for those accused of crime. Among those barely legible were the provision in Article I, Section 10 forbidding states from impairing the obligation of contracts, the Fifth Amendment’s provision prohibiting the taking of private property without just compensation, and provisions of Article IV, Section 2, and the Fourteenth amendment guaranteeing to all the privileges and immunities of citizenship. His point was that the Supreme Court had, without constitutional justification, given particular significance to those amplified in bright lights, while largely ignoring those barely legible in his display.

A whole constitution approach would require judges to put every provision in the same size type with equal illumination, but clearly that is not what Kendall and his fellow progressives seek. After all, as head of the CRC, he devoted most of his energies to assuring that the protections of economic liberty remained well-kept secrets.

Thus, the whole constitution theory neither reveals previously unnoticed sources of federal power nor is it really concerned with the whole constitution. When it comes to the scope and extent of federal power, either Article I provides for it, or it does not. The “arc of our Constitution’s progress” in terms of the expansion of federal power still rests wholly on the living constitution theory on which liberal legal theorists, and too often the courts, have relied to justify significant departures from the text and original meaning of the Constitution. You can’t find it in the text, not even of the whole constitution.

But progressives will not be deterred, nor will they allow consistency or logic to stand in the way of their vision for the Constitution. Modeling itself on, of all people, Grover Norquist, the CAC asks fellow progressives to take The Whole Constitution Pledge which states the following: “Building on the achievements of the Founding generation, successive generations of Americans have created ‘a more perfect union’ through constitutional Amendments.” It then expresses opposition to further amendments. Maybe the 33,000 plus signatories were just confused.

Living constitution theory, even in the sheep’s clothing of whole constitution theory, runs contrary to the rule of law and constitutional government. For a constitution to serve its purpose as a constituting and constraining document for government, its meaning cannot be adjusted, day by day, by those whose offices it has established and whose acts it is meant to constrain. Like every other law, a constitution must bind the government official, whether judge, legislator, or administrator, to its pre-determined meaning. That is the essence of the rule of law and of constitutional government.