The "Living Constitution" and Repudiating the Past

An article I'm reading about the failed nomination of Robert Bork to the Supreme Court describes the debate over the "living constitution" as one between "an eighteenth century Newtonian Constitution and a nineteenth century Darwinian Constitution." The idea is to contrast the timeless, unchanging nature of Newtonian physics with the kind of gradual evolutionary change identified with Darwin. Kind of at random, this is a perfect metaphor for a point I've been planning on writing into a post for the past several days. The key point is this: Newton was wrong about stuff! Not, actually, wrong about the idea that the laws of physics are unchanging throughout time; as best I know, that part is true. But he got a lot of the laws of physics wrong. The universe only looks the way Newton thought it did at a very superficial level. Our ideas about the universe are very, very different now than they were in 1727, not because the universe has changed but because we just understand it better.

How does this relate to the living constitution? Well, it should be kind of obvious, but now I'll approach from the other side and make the point I've been wanting to make for a while. I don't think anyone really believes in the "living constitution." At least, I think a lot of people who purport to believe it don't really, not if its taken literally. Not if it's taken to mean that the Constitution itself changes over time. Bruce Ackerman sure seems to believe that, but I doubt that someone like William Brennan did. Rather, I think he thought that a lot of existing constitutional doctrine was dead wrong. He, therefore, wanted to issue decisions on constitutional issues that were not remotely consistent with the current or pre-existing understanding of the Constitution. But it's always controversial when the Court repudiates one of its existing precedents, and would doubtless be many times more so when it repudiates a whole complex of constitutional theory. So instead of saying that the old understanding was wrong, he, and those similarly minded, talk about how the Constitution needs to adapt with the times, or whatever.

In other words, the "living constitution" is an idea that people make up to avoid having to be honest about how much they're repudiating the past. We're very proud of our past, and rightly so in a lot of ways. Scientists are very proud of their past, too. But scientists don't see any problem saying that Isaac Newton was a great man and that he was dead wrong about a whole lot of things. This is perhaps one of the downsides to the eminently justified demise of legal scientism, the belief that human laws were like the laws of nature and had only to be discovered through the exercise of reason. (I get the impression that the legal scientists put more emphasis on reason than on experiment or observation, interestingly.) In that framework, it would make complete sense to say, well, the views of a century ago were just plain wrong, and we're not going to follow them even though we don't think the underlying truth has changed. The legal realists rightly attacked the view of law as an abstract, timeless entity, as opposed to the product of ongoing human politics. And, I think, after their triumph it was just easier, more comfortable, to see the Constitution as evolving over time than to say that the constitutional understandings of prior generations were wrong. And so emerged the living constitution, to say that, well, perhaps the past wasn't wrong for the past, but it would be wrong for the present. It lets us gloss over the continuity errors in our Dworkinian chain novel. But we know the errors are there, we put them there on purpose, because we like the new version of the story better than the old one, we just don't quite want to admit it.


Oh, and as an aside, it's worth pointing out that Darwinian evolution unquestionably occurs within a universe governed by timeless physical laws. In fact, Richard Dawkins has suggested that evolution by natural selection is a timeless law of nature, that life anywhere in the universe would proceed by it. There is no inconsistency between evolution and physics, and of course none of this has anything to do with the way we update our scientific understanding of the universe. Also, individual organisms don't evolve, they develop, the Constitution could only "evolve" in a properly Darwinian sense if the change took place over several different versions of it. A Jeffersonian world, where the constitution expired every twenty years, would feature such evolution; ours cannot, even under a "living constitutional" view. But all of that is nit-picking and not really about the legal stuff.