On the occasion of the United States’ 250 Anniversary it is pertinent to refer to the debate currently taking place in that country between the so-called originalists and living Constitutionalists.
Such debate relates to the interpretation of its Constitution. Far from being a purely scholarly matter, this becomes a fundamental political issue with tremendous implications.
Context is needed in order to understand what is hereby involved.
Written Constitutions and Costumery Constitutions
Written constitutions are a relatively new phenomenon. They were the product of the Eighteenth Century’s liberal revolutions, which sought to guarantee the rights of citizens and limit the power of rulers. For 18th Century publicists (writers on public affairs) it became a true dogma that the rules that governed the functioning of the State had to be systematically incorporated in a written text.
Up to that moment, costumery constitutions had been the norm. These embodied a disorderly collection of judicial rulings, acts of different tenor, tradition, works of authority, and general principles. Their essence was adherence to custom. In short, they were not only uncodified but timeless in scope.
Typical examples of the latter were the German Constitution that prevailed until 1870, and the current British Constitution, a relic of bygone times. In his famous 1802 book The German Constitution, philosopher Georg Friederich Hegel pointed out how the ancient norms that still governed German life, had become the greatest obstacle for the emergence of a modern and unified German state. Germany, as a result, was a collection of big, medium size, and tiny states, whose existence was protected by said Constitution. (Hegel, 2012).
For its part, the English Constitutional system is the consequence, not the source, of the rights defined and guaranteed by the courts of justice. Common law is complemented by a diverse and old time set of statutory law never codified in a single text. This includes the Magna Carta of 1215, the Habeas Corpus Act of 1679, or the Bill of Rights of 1689. Traditions, unwritten rules and works of authority such as Walter Bagehot’s English Constitution, add to the above within this highly heterogenous Constitutional mixture. (Smith, 2001).
Contrariwise, the United States Constitution of 1787 and the French Constitution of 1791 represented the first written constitutional texts drafted with the specific purpose of governing their nations. However, the two of them followed a very different path. While the American one remained mostly intact over time, France’s one was replaced the following year by a new Constitution. Actually, between 1791 and 1958 France had thirteen different constitutions. (Burdeau, 1972).
The latter, by virtue of the principle that constitutions must change in response to the transformations taken place within society. Should the ultra-right “Rassemblement National” or the ultra-left “La France Insoumise” win the 2027 French presidential elections, they might try to get rid of the 1958 Gaullist Constitution currently in place. In such a case, they might want to pass a new Constitution tailored to fit their radical transformative programs.
Although the American Constitution remained essentially unchanged over the years (with the exception represented by its amendments), in practice it became a sort of mid-way option between written constitutions and the British constitutional tradition. This, because the courts of justice, custom, and the interplay between its public powers, interacted with the written text. A single example can explain, how the American constitutional system is something more than the written text itself – The relationship between President and Congress is frequently guided by the so-called implicit or inherent constitutional powers, where the acquiescence of either branch in relation to the actions of the other, may grant rights not explicitly conferred by the Constitutional text. (Fisher, 2014).
Normative Versus Material
However, the notion that new constitutional texts should be written every time that fundamental political changes take hold of societies, became the prevailing view. In this regard, it was the path pioneered by France, the one that ended up carrying the day.
Since societies are breathing, dynamic and fluid entities, most nations eventually accepted the premise that the fundamental law that regulates them should be in tune with its changes. Famous Spanish intellectual José Ortega y Gasset summarized this view by stating that constitutions should represent “pure life” as, otherwise, “they would carry the corpses of fulfilled history”. (Ortega y Gasset, 2007, p. 64).
Within constitutional doctrine this can be explained by the distinction made by well-known Austrian jurist Hans Kelsen. For him, constitutions have both a normative nature and a material one. The first emphasizes their purely formal and juridical aspect. The second, to the contrary, focuses on its substantive character. Meaning, the political and social trends within society that determine the kind of values reflected in the Constitution. (Vinx, 2021).
Not surprisingly, after World War One the so-called constitutional preambles became a widespread figure. According to them, the political and social objectives that guide the Constitution must be expressed at the beginning of the text. In other words, far from remaining within a formal and timeless context (the normative one), preambles outlined an aspirational view of society.
Extremes, however, are always pernicious. Tying the evolution of society to the corpse of accomplished history, as Hegel and Ortega y Gasset warned about, can be as bad as tailoring the Constitution in accordance to the preferences of the political regime of the day. This is precisely why the American Constitution embodies the best of both worlds. America’s constitutional model represents, indeed, a midpoint between the extremes.
The Great Debate
The costume tailored for the child that the United States was in 1787, has been able to adapt to the giant that it has become. The implications of this are immense, as the text elaborated to rule the life of the thirteen recently liberated agricultural colonies, has been able to remain in full force until nowadays. From all points of view this represents an impressive feat. But how was this attained?
This is where the notion of a living Constitution comes to light. David A. Strauss explains it in a didactic way: “A living Constitution is one that evolves, changes over time, and adapts to new circumstances, without being formally amended (…) The nation has grown in territory and its population has multiplied several times over. Technology has changed, the international situation has changed, the economy has changed, social mores have changed, all in ways that no one could have anticipated when the Constitution was drafted. So, it seems inevitable that the Constitution will change too (…) On the other hand (…) The Constitution is supposed to be a rock-solid foundation, the embodiment of our most fundamental principles (…) So it seems we want to have a Constitution that is both living, adapting, and changing and, simultaneously, invincibly stable and impervious to human manipulation. How can we escape this predicament? The good news is that we have mostly escaped it, albeit unselfconsciously. Our constitutional system (…) has tapped into an ancient source of law. That ancient kind of law is common law. The common law is a system built not on an authoritative, foundational, quasi-sacred-text like the Constitution. Rather the common law is built out of precedents and traditions that accumulate over time. Our constitutional system has become a common law system, one in which precedent and past practices are, in their own way, as important as the written constitution itself. A common law Constitution is a ‘living’ Constitution”. (Strauss, 2010).
Regrettably, the ultra-conservative shift being experienced in the United States has brought with it the emergence of a so-called “originalist” constitutional school. This, in contrast to the living one referred to by Strauss. According to originalists, the constitutional text must be interpreted in light of the time and the circumstances in which it was drafted, and in accordance with the intentions that its framers had in mind when writing it. As Lawrence B. Solum says: “Originalists argue that the meaning of the constitutional text is fixed and that it should bind constitutional actors”. (Solum, 2019). This would be akin to what fundamentalism represents in the religious sphere, where the “revealed Word” needs to be interpreted literally.
Five of the nine justices that currently make up America’s Supreme Court explicitly adhere to this conception, while a sixth does so frequently or implicitly. This, needless to say, tips the balance of the Court in this direction. The implication therein derived are clear – by restricting the interpretation of the Constitution to what its framers had in mind in 1787, the Supreme Court is turning the clock of history 338 years back.
The corpses of past history, as a result, are bound to guide the America of nowadays. From a perspective that echoes Hans Kelsen, this would not only represent a purely normative approach to the Constitution but, at the same time, the material aspect herein considered is linked to what Madison, Hamilton and Jay had in mind in the 1780s. From representing the best of both worlds, the American Constitution now embodies the worst of them.
References
Burdeau, Georges (1972). Droit Constitutionnel et Institutions Politiques. París: Librairie Génerale de Droit et de Jurisprudence.
Fisher, Louis (2014). Constitutional Conflicts Between Congress and the President. Lawrence: University Press of Kansas.
Hegel, Georg Wilhem Fredrich (2012). “The German Constitution” in Hegel Political Writings. Cambridge: Cambridge University Press.
Ortega y Gasset, José (2007). Discursos Políticos. Madrid: Alianza Editorial.
Smith, Paul, Edit (2001). Bagehot: The English Constitution. Cambridge: Cambridge Texts in the History of Political Thought.
Solum, Lawrence B. (2019). “Originalism Versus Living Constitutionalism: The Conceptual Structure of the Great Debate”, Northwestern University Law Review, Vol. 113, Issue 6.
Strauss, David A. (2010). “The Living Constitution”, Uchicago Law, September 27.
Vinx, Lars (2021). “Hans Kelsen and the material constitution of democracy”, Jurisprudence, Volume 12, Issue 4.
Author: Alfredo Toro Hardy, PhD – Retired Venezuelan career diplomat, scholar and author. Former Ambassador to the U.S., U.K., Spain, Brazil, Ireland, Chile and Singapore. Author or co-author of thirty-six books on international affairs. Former Fulbright Scholar and Visiting Professor at Princeton University. He is currently an Honorary Fellow of the Geneva School of Diplomacy and International Relations and a member of the Review Panel of the Rockefeller Foundation Bellagio Center.
(The opinions expressed in this article belong only to the author and do not necessarily reflect the views of World Geostrategic Insights).