At Balkinization, Stepehn Griffin continues his posts on new originalism and living constitutionalism: The Problematic Living Constitution: The Dead Hand and the RoR Fallacy (his prior post is discussed here). From the introduction:
I’m continuing with this series of posts on the new originalism and living constitutionalism by distinguishing between theories of constitutional change and the most popular version of the idea of a “living” Constitution. The last post argued that one key distinction is that theories of constitutional change are historicist while standard-form living constitutionalism is not. This post hits closer to the living Constitution’s home base by contending that the main negative and positive arguments typically employed by living constitutionalists are flawed. One negative move used against originalism by living constitutionalists is typically known as the “dead hand” argument. I have to admit I never found this argument very persuasive and so I didn’t pay much attention to it in my prior work. But this may be misleading, because some of the arguments I endorse as supporting my line of inquiry into the theory of constitutional change might be identified by other scholars as “dead hand” arguments – specifically, arguments about the difficulty of making formal changes through Article V. …
And introducing his second point:
Now to proceed further in showing the problems with conventional forms of living constitutionalism, I will first highlight the response Mike Dorf gave to Balkin’s criticism of the dead hand argument in his HLR review. I’ve always admired Dorf’s depth of knowledge on constitutional theory and thought his review was as good a statement as we are likely to get of where living constitutionalists stand on the different strands of argument involved in the debate between them and the new originalists. Dorf took note of Balkin’s contention that dead hand arguments sweep too broadly, but said this point is only effective “if one thinks that the Constitution’s legitimacy must be grounded in an original act of lawmaking.” Dorf’s nonoriginalist alternative ground, very popular among living constitutionalists, is the contemporary acceptance of the Constitution by the people of the United States. In particular, he invokes Richard Fallon’s discussion of this move, which is based in turn on H.L.A. Hart’s theory of law and Hart’s influential concept of the “rule of recognition.” Based on my understanding of Hart’s theory, however, I believe there is a pretty big problem with this move, at least if we stay within the terms of Hart’s theory. Please keep in mind that the following discussion of what I call the “RoR (rule of recognition) fallacy” is based entirely on what Hart says about this concept and its application (which poses some problems) to the U.S. legal system. I’ll try to be precise about what I think the problem is because if I’m right, quite a few scholars have been led astray about the potential of the RoR to ground the legitimacy of nonoriginalism and the living Constitution. …
Posted at 6:28 AM