Steven Douglas Smith (University of San Diego School of Law) has posted Constitution Day: 'The Image of Liberty' on SSRN. Here is the abstract:
This Constitution Day talk compares the state of constitutional governance today to that of the Roman Empire, as famously discussed by the historian Edward Gibbon, and discusses alternative strategies that might be contemplated by those who believe that current American governance does not conform to the requirements of the historical Constitution.
The whole essay is amusing and enlightening (as always, from my colleague Professor Smith). Here's an excerpt on living constitutionalism:
Here is a generalization that I think is accurate. In recent decades, it seems, most constitutional scholars have believed that the modern administrative state and the actively progressive judiciary are, for the most part, very good things. Maybe even necessary things. But the scholars have also realized that nagging questions of legitimacy or authority need to be addressed. The scholars have had to ask: In a government in which "We the People" are supposed to be the ruling authority, where do the courts get their license to do the manifestly good and necessary things they do, like impose same-sex marriage on the entire nation?
So the question needs to be noticed, but given that the desirable conclusion is obvious and known in advance, it has seemed that as long as a colorably credible justification can be given, the challenge of legitimacy has been deflected. It=s as if the courts had been charged with violating their constitutional responsibilities, and are thus entitled to a presumption of innocence: so any moderately plausible defense is enough to warrant acquittal. And the courts should then be free to get on with their beneficent business.
In short, if you know in advance what the desirable or even necessary conclusion is, any barely passable argument will probably be good enough. And the more abstruse, and thus hard to see through, the better.
Conversely, if we do not start with a commitment to arriving at a particular, presumptively desirable destination, and if instead we ask how governance truly committed to rule by "the People" would work, the whole modern enterprise looks different, and much more dubious. Now it will not be enough that a lawyer or scholar or judge can come up with an ingenious rationale for connecting some desired result to the Constitution. The question, rather, will be whether a political community sincerely committed to self-governance would want to encourage or authorize important political decisions to be made on the basis of that sort of ingenious rationaleB one that the people who enacted the constitutional provision would most likely never have thought of. The very creativity and complexity of modern constitutional theory will already be a cause for suspicion. Why would the straightforward exercise of self-governance by "We the People" call for such creativity and complexity?
Now you may think I am being overly critical here, but I believe that in one respect I am actually being excessively charitable. That is because most of the rationales for creative judicial progressivism that lawyers and scholars devise are not really very ingenious at all. In fact, most modern constitutional rationalizations are (sometimes quite elaborate) variations on a common strategy, which consists of treating the Constitution as a sort of repository of grand or abstract principles — like equality, or liberty, or dignity. With just a little effort and creativity (not very much, really) these principles can then be used to justify outcomes that may have been unimaginable to the legislators and citizens who debated and enacted a constitutional principle.
Posted at 6:33 AM