Rot
As Neil noted yesterday, today continues the Symposium on what we owe future generations at GW Law School. I'm presenting my paper today. It's still too rough for me to post online, so I'll give a very brief overview here.
Prima facie, a constitution is a curse rather than a blessing bestowed on future generations because a constitution limits the political freedom of the future generations. However, this view is superficial. Structural constitutional provisions provide a framework for democracy, thus empowering future generations to enact the policies they deem necessary, rather than leaving them constantly to re-fight the ground rules. Constitutional rights, by contrast, do seem more problematic. One standard defense of constitutional rights posits that democracies go through periods of insecurity in which mob rule leads them to lose sight of their most fundamental values. Constitutions enshrine these values, thus protecting against backsliding (or what Justice Scalia calls "rot.")
The anti-backsliding view is widespread and it has some force. E.g., Geoff Stone's excellent book Perilous Times shows how we typically suppress free speech and the press in wartime. However, the anti-backsliding view does not really explain how constitutional rights are typically enacted. Constitution writers and amenders don't typically seek to entrench accepted rights. They typically aim to change the legal status quo. Sometimes they succeed and sometimes they fail, or fail for a while, only to have a later generation transform and redeem their handiwork. The clearest example of this phenomenon is the 14th Amendment, which was largely ignored with respect to its central purpose until the civil rights movement of the mid-20th century. More generally, constitutional rights often adopt aspirations.
The anti-backsliding view leads rather naturally to originalism in constitutional interpretation. But where constitutional rights serve an aspirational rather than an anti-backsliding function, some other method of constitutional interpretation fits better. My article explains how various conceptions of the "living Constitution" do the job. I'll post a more complete draft after my research assistants and I have had a chance to clean up the footnotes, probably in about a month.
Posted by Mike Dorf
Prima facie, a constitution is a curse rather than a blessing bestowed on future generations because a constitution limits the political freedom of the future generations. However, this view is superficial. Structural constitutional provisions provide a framework for democracy, thus empowering future generations to enact the policies they deem necessary, rather than leaving them constantly to re-fight the ground rules. Constitutional rights, by contrast, do seem more problematic. One standard defense of constitutional rights posits that democracies go through periods of insecurity in which mob rule leads them to lose sight of their most fundamental values. Constitutions enshrine these values, thus protecting against backsliding (or what Justice Scalia calls "rot.")
The anti-backsliding view is widespread and it has some force. E.g., Geoff Stone's excellent book Perilous Times shows how we typically suppress free speech and the press in wartime. However, the anti-backsliding view does not really explain how constitutional rights are typically enacted. Constitution writers and amenders don't typically seek to entrench accepted rights. They typically aim to change the legal status quo. Sometimes they succeed and sometimes they fail, or fail for a while, only to have a later generation transform and redeem their handiwork. The clearest example of this phenomenon is the 14th Amendment, which was largely ignored with respect to its central purpose until the civil rights movement of the mid-20th century. More generally, constitutional rights often adopt aspirations.
The anti-backsliding view leads rather naturally to originalism in constitutional interpretation. But where constitutional rights serve an aspirational rather than an anti-backsliding function, some other method of constitutional interpretation fits better. My article explains how various conceptions of the "living Constitution" do the job. I'll post a more complete draft after my research assistants and I have had a chance to clean up the footnotes, probably in about a month.
Posted by Mike Dorf