The Living Constitution

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Legacy, what is a legacy?
It’s planting seeds in a garden you never get to see.
I wrote some notes at the beginning of a song someone will sing for me.
America, you great unfinished symphony, you sent for me.
You let me make a difference, a place where even orphan immigrants.
Can leave their fingerprints and rise up.

Perhaps nothing fulfills the idea from Hamilton the Musical of “America, you great unfinished symphony” than our living Constitution, a combination of the original written document as amended, whose meanings have no doubt changed over time and will continue to do so, and the many extra-textual additions that have crept into the framework and enjoy the same privileged status as the explicitly written segment, a category also guaranteed to grow as well as persist.

We offer a lengthy introduction to this topic in our Facts section. Here we would like to start a process by which the contents of the living Constitution may be established, at first by creating a starter kit and then subjecting that starter kit to a process of refinement with the help of constitutional experts, both from our academies, constitutional lawyers, other experts, perhaps some elected leaders and members of courts, and our citizens.

Original Meanings

Let us clear some dust away first. Those advocating “original meanings” or “original intent” may argue against granting any non-textual meanings on grounds that any “Constitutional” provision must either arrive with the original document whose meanings are frozen in stone or by amendment, all other putative constitutional meanings disqualified by the passage of time or by their failure of incorporation by constitutional amendment. If we accept the concept and limitations of original meanings this might be persuasive. But original meanings begin with the serious problem of establishing them. We accept of course the many terms in the Constitution that are clear and steady with time—two Senators per state, four-year term for the President, the Chief Justice oversees trials of impeachment, and so on. But there are a class of terms for which no determinate meaning may be established at the time, and many remain ambiguous today. What did “the general welfare” mean in 1787? Is it something different today? Could we define an unambiguous meaning today that would be conclusively used to guide legislative, executive, and judicial action today? No and no. Yet “the general welfare” is one of two principal justifications for taxation in the original Constitution (the other is the common defense, in its way just as ambiguous if it justifies our imperialism in the nineteenth century and our military intervention in the affairs of other nations in the twentieth and twenty-first centuries). Does “herein granted” in the Constitution’s first sentence mean that the Congress has no other powers, and if so, how does that square with the “necessary and proper” clause that has, since 1819 McCullough v Maryland, been used to expand Congressional powers considerably, a view supported by Madison in Federalist 44? If some words in the Constitution are clearly subject to changes in meaning or ambiguous meanings from the outset, no words beyond those clear then and clear now may be taken as limited to what they might have meant in 1787 or at the time of amendment.

The two Supreme Court justices most attached to “original meanings” (Anton Scalia and Clarence Thomas) used them very selectively, only then with a meaning they decided, and then with often doubtful outcomes. In 2022 New York State Rifle and Pistol Assn v Bruen, Thomas enlists a previous Court decision that the original meaning of the Second Amendment includes arms for self-defense, when not a word of that amendment gets one close to personal self-defense. Some previous statements of rights to bear arms do make personal self-defense explicit, including the English 1689 Declaration of Rights and the original Pennsylvania Constitution. Considering this history, the exclusion of explicit personal self-defense in the Second Amendment can be argued to be an explicit repudiation of its inclusion rather than an implication. And of course Thomas could not be consistent and insist that the meaning of “arms” at the time must be applied to the scope of the right today. That would be much easier to define without ambiguity. If you want it both ways, some stuck in the past, some allowed to move to the present, there is no independent principle to justify anything in the past. Hence there are no “original meanings” separate from the subjective judgment of the advocate, hence no “original meanings.” (The case law is more complex than this claim suggests, but the point remains—nothing in the text of the Second Amendment justifies the right to bear arms for personal self-defense or the expansion of “arms” to include automatic terrorist weapons.)

What are Warrants and Relative Powers of Unwritten Terms

There is no question that many forms of powers, limitations, and procedures have crept into the same room with the written Constitution, almost from the beginning, or even before the beginning. We report in our Facts section the addition of the words “of the people” to the word “convention” in Article 7 regarding ratification, written not in the Constitution but in a resolution by the Convention in its transmission letter to state congresses. The state congresses obliged the addition, but it was not part of the formal mandate; other forms of convention could still have been legally chosen, with possibly disastrous effects. Judicial review, the power of the Supreme Court to decide the meaning of the laws passed by Congress, the power of the President to remove officials from the executive branch without Senate approval, which approval was required to appoint them, and the power of the executive to close treaty arrangements with foreign powers that obliged the government to spend money without House approval number among the earliest additions that have reached unquestioned status.

But do these extra-textual terms have the same power and authority as the textual terms? Do they bind the Supreme Court, the Chief Executive, and the Congress in the same way and to the same extent? Judicial review likely summons an assent because it was discussed in the Convention as a kind of implication, it was in practice in many state constitutions, and Blackstone welcomed both ideas—Court power over the meaning of laws and power to nullify laws in conflict with the Constitution. But removal without Senate approval seems to have no more authority than the first Congressional opinion on the subject and the passage of time without serious challenge. Of course the Supreme Court represents a likely source of authority as nothing in the Constitution gives any power to overrule its decisions to any other branch of government. However, the Court can reverse itself, as it has done on 145 occasions, giving its decisions somewhat less lamination to the center of things as the written word, which the Court cannot change on its own except as it interprets the words. But it has done this. For example, the Court in 1873 Slaughterhouse Cases took aim at the Privileges and Immunities clause of the Fourteenth Amendment by defining two classes of citizenship, one national, one at the state level, the latter not subject to the federal Constitution, which largely denuded the power of the clause, from which it has not fully recovered.

Has the President ever created an unwritten term for the Constitution? Well, perhaps not explicitly, but the sequence of President’s after the second Roosevelt has uniformly adopted a war-making power without Congressional approval, with no legal rebuke. This may arise in part because the Supreme Court has, from its inception, been loath to take up issues related to foreign policy. Indeed, the Court has been generally silent on executive power, in part because it would seem to increase the lineaments of balancing powers to limit encroachments of one power on another, itself unconstitutional, or so it could be argued, even though separation of powers is not explicitly required in the Constitution, but assumed because the three branches have individual treatments and the separation of powers was a kernel component of the Convention’s thinking. Indeed, the separation of powers as a rule is extra-textual, and may not even be “Constitutional” given the current admission into the federal government of agencies with legislative and judicial powers added to their natural executive power operating largely independent of executive and congressional forces. It could also arise from the Court having no enforcement power, which need would often be laid at the doorstep of the executive branch, which would be generally hostile to Court decisions impugning its decisions. It was just this context that led to 1803 Marbury v Madison; Marshall knew Jefferson would never order Madison to grant Marbury his clearly authorized position, so he found an excuse not to issue the Writ of Mandamus by making the Writ itself unconstitutional, changing the Constitution in the process. Such are the piquant moments of American political history.

Can we find a compass here, a standard by which any new candidate for the extra-textual Constitution may be admitted or denied? Not every Supreme Court decision becomes part of the Constitution; not every law becomes part of the Constitution (although it does in Alabama relative to state law and the constitution of Alabama and Munro in his 1928 lectures thought so). It is surely fair to say that any extra-textual term does not have the permanence of the textual part, the latter all but locked in iron. Indeed, only seven of the 27 formal Amendments to the Constitution can be said to change something in the original rather than add a new provision (12, 16, 17, 20, 22, 25, 27), and only 16, 17, and 20 can be said to make a material difference (direct taxes, an elected Senate, and term limits on the President).

But lack of permanence does not mean lack of or even less power. We might begin with some ordering of extra-textual terms according to their proximity to the written text. Some extra-textual terms fill out, modify, or effectively obliterate written terms. These must be considered “Constitutional.” The current Electoral College procedure fills in or works around the written text in Article II updated by Amendment Twelve. The power of removal covers a gap in the original, as does the exact composition of the Supreme Court. Our current standing army and its financial commitments that often last decades all but obliterates the requirement that military spending allocations only go out two years, a feature trumpeted in the Federalist Papers as a barrier to abusive military build-ups. By the same token, the “wars” that have been conducted by the United States since World War II without Congressional approval have been cloaked under an unwritten understanding that as long as Congress approves the money the military adventure is “constitutional.”

It is likely as we go through this exercise that extra-textual terms that clearly affect the written text or fill obvious gaps in the written text, gaps that must be filled, will not meet with much dispute regarding inclusion. (We are not after justification here, just inclusion. Many would oppose the power of the President to conduct a war without Congressional approval, and the Electoral College is a travesty, a process screaming to be changed, without Amendment if necessary.) But including forms of extra-textual terms that are not connected to the written text will encounter more barriers. Within this class will be the host of rights that have accumulated over the years, some now in stone, but not added by amendment to the Constitution. (The many Supreme Court cases and other laws that have refined the meanings of included rights fall in the category above, such as two of the most recent, the inclusion of flag-burning and printed abuse of political figures as protected speech.) Among these that stand our clearly are the right to vote, the right to privacy, and the right to travel from state to state without impediment. These are so-called “fundamental” rights that earn their living by their age, even though things like the right to privacy have justified things recently that would have been unthinkable at the founding. But there are a class of “soft” rights that might be questioned as “constitutional”, such as the right to police and fire protection, electricity and clean water, radio and television, access to government information, and environmental protection.

Then there are classes of powers, limitations, and procedures that have been operative for long enough to look durable, “constitutional” in a sense, some of which might make the grade, some of which will not. The administrative state has added so many powers to the executive branch that one would like a knife to separate those that fit within the Constitutional notion of “executive power” and those that do not. The idea of “freedom of access to government information” collides with the seeming Constitutional right of Congressional committees operating in secret, justified by the right of the House and Senate to construct their own rules.

And where will we fit the “fourth branch” of agencies operating as little governments on their own? The absence of any formal limitation based on separation of powers leaves enough wiggle room to admit their existence, but are they “Constitutional”?

The Project

So, we are going to ask three questions: (1) by what set of rules and limitations do we admit an extra-textual power into the tent of the Constitution wherein it acquires the summit of Supreme Law of the Land; (2) by what process and by whose hands do these inclusions materialize; and (3) what are these extra-textual powers today?

We are going to ask these questions of academics in departments of law and history with a starter list of those who have written on this subject. We are going to ask these questions of our Supreme Court, most if not all of whom will likely not respond in the affirmative, but we have to try. We will try so-call “inferior” court justices who are by no means inferior. We will ask members of think tanks that may have wondered about this subject. We will ask a select list of elected officials, appointed officials, and high school and college teachers of civics who are not constitutional experts but would surely have views on the subject. And we will ask you, faithful readers, to weigh in as you see fit. We will be constructing a separate section of this web site for reporting the movable feast that we hope will materialize. Stay tuned.

This will be part of a larger project we will initiate through these portals. The Constitution needs to be explained, article by article. We have detailed explanations now from the Heritage Foundation, it happily free of obvious Heritage Foundation ideology, and Justia, a legal information Internet service. Both are heavily laden with Supreme Court decisions, a natural approach. Both are available on the Internet. However, the highly legal approach makes them difficult to comprehend for many. They also suffer tedium; the explanations are not layered or summarized. So, the end game for this site is an accessible, curated Constitution with four layers: (1) the original Constitution with its Amendments; (2) the extra-textual components that are expansions or clarifications of the original (say, Judicial Review); (3) extensions but within the compass of the original (say, rights that have the same security in our system as those in the written Constitution as amended), and (4) extensions that lie outside the compass of the original (say, our military commitments and the regulatory state). We would propose the presentation of these materials in two forms: one that adds the unwritten parts as successive, independent amendments just as the current Amendments are presented, perhaps organized along the lines above; and a fully integrated constitution that excises all terms that are now extraneous. This will require some new categories in the full picture.

Down the road a ways, one might even think about a convention that would bring these voices together in one place. We will try to find a hall named after John Marshall.

If you are interested in participating, please contact us at: federalistpapersproject@gmail.com