Framers of Mind
A constitutional scholar asks: What were they thinking?
Jun 25, 2012, Vol. 17, No. 39 • By ILAN WURMAN
Whichever theoretical justification one chooses to adopt, each accepts the premise that the Constitution, for it to be a constitution at all, must demand our obedience and our observation of its limits. And each requires an originalist interpretation of the constitutional text. As soon as the text is interpreted to mean different things at different times, there is no reason for that text to be binding for any given generation. An ever-changing text nullifies the idea of higher lawmaking, for it is precisely the wisdom of the Framers of the constitutional provisions which justifies obedience to them. A fluid text renders the precommitment theory hollow, because the rules of the game would change as judges chose to interpret those rules in new ways.
Furthermore, a fluid text admits of no natural rights justification for obedience to the Constitution, because natural rights principles require fixed limits on government that cannot change at the whim of those in power. What follows is that in order to be a constitutional government at all, the meaning of the words of the Constitution cannot change as our society evolves.
While Balkin recognizes that the Constitution functions as both “basic law” and “higher law,” these two functions do not give the Constitution (in his view) its most fundamental legitimacy. Rather, he believes that the Constitution must also serve as “our law,” and for it to be democratically legitimate, succeeding generations must put their own constructions on the constitutional text where the Framers have enabled them to do so through standards and principles.
Balkin argues that the Constitution “is premised on popular sovereignty,” and thus “the delegation of constitutional construction to later generations is crucial to the Constitution’s democratic legitimacy.” Balkin’s theory focuses so much on enabling future generations because for him, the Constitution cannot be legitimate unless it is democratically approved through successive acts of popular sovereignty—loosely to include the New Deal, the national security state, the civil rights movement, and the sexual revolution.
The Framers did indeed recognize the legitimacy of at least an initial act of popular sovereignty. But that does not mean that every generation must somehow re-ratify the Constitution. Thomas Jefferson famously suggested that there ought to be a constitutional convention every 19 years, a suggestion rejected vigorously by other Founders, such as James Madison and John Adams. They recognized the importance of a precommitment—or stability—in the Constitution, as well as a constraining higher law or natural rights function. Once we move away from the need to justify obedience to the Constitution through successive acts of popular sovereignty, it becomes far more important to interpret the Constitution as a constraining rather than an enabling document.
Balkin’s theory of enabling also flows from his optimistic view of history. He criticizes Scalia’s argument that the Constitution was meant to restrict democracy to prevent “rotting.” Balkin believes that the Constitution can be redeemed over time, that society can progress morally: “The very notion of aspiration presumes the opposite of [Scalia’s] narrative of decline. It presupposes that each generation should build on the past, and strive to do better than the previous ones did.” Thus, the Framers, who expected constitutional principles to be redeemed in the course of history, must have intended the Constitution to enable rather than constrain the future.
Balkin is right, in a sense: The Framers did expect that the Constitution would need to be amended, that it could be perfected in future generations. Two big moral developments which Balkin mentions are the end of slavery and the granting of women’s suffrage. Both of these developments, however, were cemented through the Article V amendment process. It is far less clear why we should consider the New Deal, the growth of the administrative state, or the movement to restrict states from contending with the sexual revolution in their own ways as progress. Certainly from a progressive’s perspective, such developments are desirable and a constitutional theory should be able to account for them. But if we take the Framers seriously, they may not have seen these developments as progress, and they may not be.
The truth is that the Framers intended the Constitution to be both enabling and constraining, and the Americans who ratified the Constitution understood it in those terms. They expected that society would be able to progress, and that if a supermajority of the states and the people’s representatives came to be more enlightened, they would enshrine these developments in the constitutional text itself.