The Living Constitution

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We have adopted as a motto for this web site words from the musical Hamilton, “America, you great unfinished symphony.” We are particularly attracted to the personification of the country with “you,” suggesting that we are a kind of living organism that struggles through a perpetual early adult stage that must adapt to changing conditions, but through the congregation of disparate voices struggling to achieve a sound that both makes sense at the moment but propels itself from within to a new station that leads to a never realized final cadence. At times, as with much modern classical music, the sounds are cacophonous, setting off alarm bells on all sides that add to the noise. But then the organism finds new voices, or new ways, or modulates to something else, that sounds serene, coherent, but not finished.

We do not question for a moment that we are in a cacophonous moment. The noise is all around, and from all sides. But we hold to the claim that our Constitution, our commitment to the rule of law, and a general sense that what holds us together it stronger in the end than what drives us apart, will find a way through the current darkness to a new light, a new day, and the beginning of a new trial as the experiment rolls on.

Our Constitution is not complete as written. Some of its words demand interpretation or clearly move with time; “privileges and immunities” and “general welfare” fit this category. Which branch has final responsibility for what law’s mean was announced by the Supreme Court in 1803, giving that power to itself, even though many to this day believe it should be the legislature, the only branch fully dependent upon the people. In fact, the very first act of each state during ratification was a narrowing of a word in the Constitution to a specific meaning not in the Constitution. Ratification was to be by “conventions of nine states” not necessarily conventions “chosen in each by the people thereof”; that phrase was used only in the Convention’s resolution in its ratification call to the state congresses, signed by Washington. These congresses could have legally chosen a different form (say, like the Constitutional Convention, one with delegates chosen from the legislatures themselves). Thus began an ongoing process of filling in meanings, altering meanings to fit changes in the country, expanding meanings through implications, and over time creating powers that bear the same privilege and stamp of the Supreme Law of the Land as the Constitution but are not only nowhere to be found in the Constitution but are hostile to its seeming sensibilities. Among the last of these innovations are our present massive standing army, its engagement in what are called “wars” beginning with the one in Korea without Congressional sanction, and agencies such as the FED and the SEC that operate as small governments with all powers contained within.

We hold, as do many academics, that the living Constitution must be comprehended in any deliberations we may undertake relative to how our country has adapted to change. The original body of the Constitution remains fundamentally unchanged, a feature honored by the circumstance that we still print the original constitution with all of its warts, amendments merely added in sequence of ratification rather than incorporated into the document proper after suitable if necessary excision of words that have no more purchase on our government. The irrelevant parts have become ceremonial or reminders of our sometimes invidious past. All of our state constitutions and all of our laws follow the opposite practice, of updating and incorporating amendments while shedding the obsolete, or at times holding new conventions to write an entirely new constitution (all states but Massachusetts have done this). But we needed some means of roping in the ills of unfettered capitalism in the late 1890s, hence the Interstate Commerce Commission which is nowhere anticipated or authorized by our written Constitution but set the regulatory state in motion. We found after World War II that we needed a massive and perpetual standing army, also nowhere justified in the Constitution. Our Supreme Court has found extra-textual reasons to justify enormous changes, additions mostly, to our inventory of rights, many of which we take for granted, built into our experience and sense of government, but nowhere found in our Constitution.

A book by Christopher Tiedeman entitled The Unwritten Constitution of the United States (1890) ushered into the academic world the idea of the written Constitution paired with extra-textual contributions from collateral laws and writings, usages that turned into habits, and the pressures of experience and change. Recent books by Yale’s Bruce Ackerman (1990 to 2012), Harvard’s Lawrence Tribe (2008), Chicago’s David Strauss (2010), and Yale’s Akhil Amar (2012) take different perspectives on the same topic. Ackerman traces the profound effects of the Civil War, the Depression, and the Civil Rights movement on constitutional meanings. Amar argues persuasively that the written and unwritten parts of the Constitution not only complement each other, each is unintelligible without the other. Strauss uses these changes to impeach the idea of original meanings, with success in our view. A book by Stanford’s Jonathan Gienapp from 2018 argues for the birth of the Constitution to take a decade after its ratification along similar lines if very shortened time scale (he does not address an ongoing process but his work implies it). Tribe calls the extra-textual material “invisible,” Amar calls it “unwritten,” and Gienapp echoes the musical, calling it “unfinished.” We have followed Strauss, who calls it a “living” constitution. This word allows for the extra-textual parts of the Constitution to create a finished document at any one point in time (the conclusion Gienapp reaches that “fixed” the Constitution around 1796, a reason it is never changed when changed).

In his own way Madison sums up this condition in Federalist 37: “All new laws, though penned with the greatest technical skill, and passed on the fullest and most mature deliberation, are considered as more or less obscure and equivocal, until their meaning be liquidated and ascertained by a series of particular discussions and adjudications.” (The word “liquidate” here means “to make clear” or “understand,” not a word we would automatically assign to some of the convoluted sentences in the Papers themselves.) The Constitution was such a new law. Its “liquidation” has been a movable feast, with moments small and large changing its meaning, use, range, and powers. Some are interpretations; judicial review and implied powers are not in the Constitution explicitly but Marshall’s decisions made them a corporate part of the document. Some are internal to the document but serve as amendments, clarifications, or filling in gaps explicitly opened by the document; the Senate filibuster and the progress of incorporating the Fourteenth Amendment into state law are examples. But some stay extra-textual but acquire the same power as the Constitution itself, of ranging above other laws. The necessity of a massive standing military and the development of numerous independent federal agencies associated with the executive branch but armed with legislative and judicial powers come to mind.

There is a general recognition within these works that the people have a role to play in the melodrama of Constitutional development. The Nineteenth Amendment (1919) giving women the right to vote was the end of a seven-decade march by the people. The recent Supreme Court decision to permit gay marriage was preceded by a popular shift in opinion about homosexuality that was authored to a large extent by gay activism and a general loosening of Puritan taboos about sexuality itself, a loosening strongly influenced (one could argue) by the contraceptive pill made available around 1957 that liberated half the human race and made casual sex more or less safe. That we have yet to establish comparable dimensions of power and freedom based on race does not deny the process or the power—much has been gained over the last sixty years, just not enough. What is clear, “liquidated” as it were, is that many changes to the sum of our living Constitution required the people to act first, often over long spans of time, to provoke alterations that finally sank into law, practices, habits, the public conscience, and, at times, the written text of the Constitution itself. Indeed, as Hamilton observes in several places, the price of stability is slowness of foot; the federal government moves cautiously and almost never with a sense of invention. It has historically followed the people or historical traumas such as the Civil War, the Depression, and World War II. In many important ways the federal government today is still just working out the ideas embedded in the Great Society Program (more than 230 laws passed between 1964 and 1968 in response to the Civil Rights Movement), the Truman Doctrine relative to foreign policy, and the transformations relative to rights wrought by the Warren and Burger courts.

The history of such developments has favored increasing improvement in human liberty. We are unlikely to repeal the Nineteenth Amendment, the application of the federal Bill of Rights to the states, or the abolition of laws against sodomy. School will be out on the repeal of Roe v Wade, a reversal to be sure, but the decision is hostile to the majority of the people, who, in the end have their way, for good or for ill. A much worse decision, around Dred Scott in 1857 that contributed to the outbreak of the Civil War, was countered nine years later by the Thirteenth and Fourteenth Amendments (the Court decision denied citizenship to blacks who had been slaves even if freed), the Amendments outlawed slavery and granted citizenship to anyone born in the United States, as almost all slaves were at the time. This decision to this day stands on the podium with gold medals gleaming as the worst decision in Supreme Court history, even though there are worthy competitors.

The forward-looking calculus of how much power the people will exert and in what ways is cloudy. Our problems now are far more complex than they have been in the past. It is unlikely that, for example, the racial gap can be closed through existing federal, state, and community programs, a circumstance suggested by the lack of progress over the last thirty years. But we feel compelled to affirm the sense of the Federalist Papers that, no matter how cloudy the present calculus may be, the people have the fundamental power to alter or abolish those parts of our constitutional structure, finished and unfinished, that fail to meet current or future exigent needs. What these academic authors have shown us, however, is that we do not need to see the work in the Constitution itself to have the effect of a constitutional change. We can prowl around in the unwritten, invisible, unfinished, living side that may have the same power and effect. While not explicit, the musical Hamilton makes exactly this point. It is a declaration of the power of the people.

We offer a more comprehensive view of this subject in our ACT section relative to education. We include there a summary of the literature on the topic, a partial enumeration of those elements of the living Constitution that are unwritten in the document proper but written elsewhere that are generally given constitutional status today, and some stories that help illustrate the process and power of select portions of the unwritten Constitution.