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Revolutionary Ideas: An Introduction to Legal and Political Philosophy


  

8. Constitutions




8.1. Introduction


 
Questions regarding constitutions
 
This unit deals with questions regarding constitutions like what is a constitution? Why might we want a constitution? Are there moral reasons to have a constitution? What should a constitution include? How should constitutions should be used, protected and interpreted? This discussion takes a broad perspective, focusing not just on one particular constitution, but on the philosophical dimensions of constitutions in general.

 
What is a constitution?
 
Let's start by asking a very basic question. What is a constitution? In some cases it's a written document. In the United State's, for example, it's a four page long document. It's five pages if you count the Bill of Rights. The United States Constitution is just a bit more than 4,000 words long in total. Compare that to the recently passed health care legislation in the United States, the Affordable Care Act, which is easily over 4 million words long.

In some cases it's a written document, and not even a particularly long or detailed written document. In other cases, such as the more modern and more detailed South African Constitution, it can much longer. The South African Constitution goes into a lot more detail. In some other cases, such as in the case of Israel, New Zealand and the United Kingdom, there is an unwritten or uncodified constitution. Sometimes these are supplemented by formal acts that are enacted by a parliament or legislature. In other cases, these uncodified constitutions are sort of supplemented by what are called basic laws.

 
roles of a constitution
 
At bottom, a constitution is not just a written document. Instead it's better to understand a constitution as a set of rules, norms, principles, or values, that play a particular kind of role. In particular these rules, which can be written or unwritten, typically serve three distinct roles. The first role is to create or authorise governmental power to create a particular government. The second role for constitutions is to structure that governmental power. The third role is to limit the governmental power and authority.

We can think of constitutions as setting out the rules of the political game for a political community and a particular political system. They often define what legal and political institutions will exist, what their powers will be, and what the limits of those powers will be. In many cases they also set out some general principles that are to animate or direct the political institutions.

 
popular sovereignty
 
For this reason people often think of constitutionalism as concerning limited government. The Constitution authorises the government's existence while at the same time its structures and then limits the government. This sometimes contrasts with a picture of Hobbes, who had the view that the sovereign would have unlimited power. From the Modern era most people reject this idea of political sovereignty that resides in the state and is unlimited.

Instead, people think in terms of popular sovereignty, the idea that the power comes from the people and which remains with the people even after the government is created, and that governments and states are just the particular persons and institutions through which popular sovereignty is going to be exercised. For that reason there's a need for limits to ensure that the power remains in an important sense with the people. That's what the Constitution helps to do.

This discussion focuses on written constitutions, since they're the most common and since unwritten constitutions introduce a whole host of complexity and often are connected to particular history, traditions and circumstances of the countries of which they're a part. One important purpose of constitutions is to create or found a government. This can be particularly important if we want to create a new political community. A constitution can be hammered out over a period of time and then serve to structure and anchor future discussions and disagreements.

A second main role for constitutions is to define the organisation and structure of the political system. These are the broad outlines of the legal and political system. These systems can be very complicated. A document such as a constitution can help provide a basic structure, identifying the relationship between different parts of the political and legal system by defining what each part is going to be responsible for.

For example, the four-page long United States Constitution, sets out the broad parameters of the United States' Federal government. Article one vests the legislative power in a congress of the United States, which will consist of a senate and house of representatives. The rest of article one specifies how those institutions will be populated, how people will get into those offices, who's eligible, and then what those institutions can do. It's only a bit more than a page long, and it was written more than 200 years ago. When you think of all the Congress does now, it's really hard to square with this 200 years old one page document.

In particular, section eight of article one lists what Congress can do. So, the Congress shall have power to lay and collect taxes, duties, imposts, and excises. To pay the debts and provide for the common defence and general welfare of the United States. To borrow money on the credit of the United States. To regulate commerce with foreign nations, and among the several States, and with the Indian Tribes. To establish an Uniform Rule of Naturalisation, and uniform laws on the subject of bankruptcies throughout the United States.

To coin money, regulate the value thereof, and of foreign coin, and fix the standard of weights and measures. To provide for the punishment of counterfeiting the securities and current coin of the United States. To establish post offices and post roads. To promote the progress of science and useful arts by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries. To constitute tribunals inferior to the supreme court. To define and punish piracies and felonies committed on the high seas and offences against the law of nations.

 
commerce clause
 
To declare war, grant letters of marque and reprisal, and rules concerning captures on land and water. To raise and support armies, but no appropriation of money to that use shall be for a longer term than two years. To provide and maintain a navy. To make rules for the government and regulation of the land and naval forces.

To provide for calling forth the militia to execute the laws of the Union, suppress insurrections and repel invasions. And then there's a few more things about militias and the founding of the U.S. capitol. And then in the end, to make all laws which shall be necessary and proper for carrying into execution the foregoing powers.

 
enumerate
 
In the modern world, when there are many other things that we might want Congress to do, a lot has been squeezed into just one of those provisions. what's called the Commerce Clause. It's the part that says, Congress shall have power to regulate commerce among the several States. It turns out almost everything can amount to regulating commerce in some relatively indirect way, since in the modern world almost every decision Congress might make has some economic effects on commerce, and almost all commerce is going to be connected to interstate commerce these days.

 
article two
 
The whole idea behind providing this relatively long list in article one of the Constitution, is to enumerate the powers that Congress has, and by so doing to effectively limit the powers that Congress has. Article two sets out the executive power, vesting it in a President of the United States of America. It specifies that the President shall be Commander in Chief of the Army and Navy, that the President will have power by, and with the advice and consent of the senate, to make treaties, to nominate ambassadors and to nominate Supreme Court Justices.

 
article two
 
Then article three says that the judicial power of the United States shall be vested in one Supreme Court and in inferior courts bellow the Supreme Court, as the congress may form time to time ordain and establish. Then, section two of article three sets out the jurisdiction of the Supreme Court, the kind of cases that the Supreme Court will hear. Article four and article five set out the means by which the Constitution can be amended.

This gives some sense of the way in which the structure of a political system can be set out by a constitution. One of the reasons for setting out this structure is that we know how things are going to get done, how things will happen, who has authority over what, and so on.

Another important reason for setting out this structure is that provides a set of limits for the government. This is made explicit in the United States by the 10th Amendment, which is part of the original bill of rights, which states, the power is not delegated to the United States by the constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people. So, it's saying, if the constitution doesn't say that Congress can do it, then Congress doesn't have the power to do it.



8.2. Constitutions as protective limits


There are a number of different roles that a constitution might serve. This segment discusses the different roles that a constitution might play in terms of limiting government. There're several different rationales for limiting government, and which of these we think are the appropriate basis for having a constitution, will end up affecting how we might want to structure, enforce and interpret a constitution, and what we might want to be included in a constitution in the first place. So it's important to get a clear view on these different limiting rationales that we might want to have a Constitution for.

 
limiting rationales
 
There're at least five distinct limiting rationales for having a Constitution. For each of these, we can think of the Constitution as limiting government, so as to protect something from the government, or protecting us from political officials in the government, or protecting us from government overreaching of one kind or another. Throughout there's this idea of limitation in order to protect something.

The first of these limiting rationales is also the most general in a certain sense. In a constitutional democracy, a role of the Constitution in limiting the power of the government by both structuring it and detailing the role of the people in governing. One role for the Constitution then is to protect democracy or to protect popular sovereignty as it's called. Consider for example, the way in which some constitutions enshrine free speech, freedom of the press, and a right to petition the government, and set out structures of representation.

All of this is a way of the constitution sort of protecting and enshrining the democratic process, and this should in theory make it impossible for a current simple majority of the people to take the vote away from their political opponents or to convert the system to authoritarian government or to ban people from a certain race or religion from participating in politics.

 
James Madison's view
 
Whether this will work in practise depends on what mechanisms are actually in place to make sure that this theoretical protection amounts to something real in practise. In the Federalist Papers, James Madison, one of the architects of the United States constitution, raises the concern that parchment barriers of a constitution may not be enough protection in the real world. So this is going to be a concern. How is the constitution, which is often just a piece of paper or a few pieces of paper, supposed to work? How is it going to help protect in practise? What it is to protect?

The second rationale is that a constitution is needed to protect political minorities from political majorities. Although we live in a political community with each other, we may not all get along. Some of us may even harbour very strong dislike or even hatred for others within our community. This might happen even along demographic dimensions with respect to race, class, ideology, education, religion, nationality, or sexual orientation.

One concern is that the majority might decide that they want to strip away rights from members of these minority groups, such as voting rights, or criminalisation of various practises that are essential to the minority group's identity, such as religious practises, or unequal legal protection of things in contract rights and property rights, or unequal access to public education and public facilities, or the use of state power against individuals through means of detention, rampant search and seizure of property.

So for all of these reasons, we might want something like a bill of rights that spells out strong individual rights that cannot be altered or stripped away by a majority, even if doing so would be politically popular. Here we see one place in which we might worry about how the constitution will actually be protected and respected or how the parchment barrier is going to make a practical difference. What will the institutions need to look like so that unpopular political minorities will have their constitutional rights protected?

The use of an unelected court, such as the Supreme Court, that is empowered to overturn popular democratically enacted legislation on the grounds that this legislation, violates the constitutional rights of individuals. This highlights the potential need for the members of that institution to be adequately politically insulated, so they can't just be voted out or removed from office because they are doing something that is politically unpopular. Another thing that this highlights is that we might not want such a court to pay attention to our values and preferences in the moment.

One difficulty that having a supreme court of this kind introduces, is knowing which rights should be protected as essential and constitutionalised, and which political losses on the part of political minorities we're willing to tolerate. After all, in any sort of democratic decision, there're going to be winners and losers. When are we going to worry about people being on the losing side? Is it when they consistently happen to be the same people, so that they're is a consistent group of political losers?

A third rationale is to protect private or personal human activity from state encroachment, even if that state encroachment is politically popular. Some have argued that here we can see echoes of Mills' harm principle. If an activity's doing no harm to anyone, then the state shouldn't be involved in regulating it. The Constitution should help ensure that we'll be protected from this kind of intrusion into things that are not actually harmful.

In this vein some have argued that our romantic and sexual lives should be off-limits from state regulation, that we should be able to raise children as we see fit, at least within certain kinds of constraint, that we should get to decide what to do with our bodies, and whether and how and when to procreate and reproduce, and that the state should have no say in terms of who we allow into our homes, or into certain kinds of private associations or that the state shouldn't play any role in deciding what we eat and drink. All these kinds of things that seem like personal or private decisions of one kind or another.

So of course there are potential harms to others that come from individual choices in these realms, but this is at least a significant strand of thought as to why we might want a constitution, and what it would serve to protect. Again, there are going to be questions of how this will be accomplished in practise, but there's this idea that certain kinds of activity should be out of the hands of government. The Constitution can help create a wall, preventing government from coming into those aspects of our lives.

A fourth kind of rationale for having a constitution which also aims at limiting the government is applicable when there's a central or federal government and then more local level or subnational units, such as state governments in the United States, or member states in the European Union, or provinces within Canada. In all these cases there is a federalist arrangement. Often there's an interest in allowing state or local level differ with respect to various aspects of government, and then a corresponding interest in having the federal government be relatively limited in what it can do. In this case the constitution can serve to protect the autonomy of the sub national units from a certain kind of federal overreaching.

Finally, a fifth rationale for having a constitution is to limit individuals. The basic idea here is that we may want to precommit to certain values and rights, so that we tie our hands later in terms of what we can do. By committing to certain values and rights in a constitution, and then making that constitution harder to change than using a simple majority vote, we'll effectively entrench certain values and rights. We might want to do this so that in later moments of weakness, we don't compromise on our core values. This rationale can be connected to wanting to ensure popular sovereignty, to protect the rights of political minorities, to protect certain spheres of personal human activity from state interference, or to keep local control and political power in a federalist system.



8.3. The mechanisms of constitutional limitations


 
mechanisms of constitutional limitations
 
This segment discusses the way in which constitutions might help to limit what governments can do. The basic idea here is that we'll have a set of rules, instructions, laws, principles that we will enshrine in the constitution and which will somehow be enforced and respected. The somehow is going to be particularly important. There're several different mechanisms that are used, often together.

First there's often explicit written constitutional text, and a relatively high bar to constitutional amendments. For example, in the United States it's incredibly onerous to get a constitutional amendment. The text limits by describing and enumerating specific roles, responsibilities and individual rights, and those precise enumerations and descriptions then become public and are known to all.

That's something, but that might not be enough to actually have those limits respected. Here one strategy is to use divided powers and a system of inter-branch checks. The judicial branch, the legislative branch, and the Executive Branch, are meant to be balanced against each other so that none of the branches becomes too strong, or extends itself beyond its constitutionally circumscribed limits.

For example, in the United States legislation has to be supported by both the House of Representatives and then the Senate, and then it has to be signed into law by the President, the head of the executive branch. By requiring the President to play this role, it limits what Congress can do on its own. Then after legislation is enacted, the Supreme Court, the head of the judicial branch, plays a role in making sure that the legislation is constitutional. The Supreme Court can assess whether the legislation violates the Constitution, and goes beyond the limits of what Congress can permissibly do under the Constitution, or violating individual constitutional rights as set out in the Bill of Rights.

Behind this idea of checks from different branches of government is the idea that these different branches will actually work to keep the others in check. This assumes that they're not working together or at least they have some independent integrity. That assumption may look pretty implausible in some cases. If we have a Democratic Congress and a Democratic President, we won't expect to see Democratic executives serving much of a checking role on this Democratic Congress.

That's where it seems necessary to look both at the different branches, the different institutions, and how people come to serve in those institutions. If the Supreme Court were elected and partisan, for example, it would be hard to see how it would serve as a check on Congress if the Congress and the President and the Supreme Court were all under the control of the same political party. This is one reason to have the Supreme Court be appointed rather than elected and to serve for life terms rather than to be subject to political pressure directly, and to be moved out of office as soon as they fall on the wrong side of the general population opinion.

On the other hand, the appointment process itself might well be politicised, so that we still will see particular judges align more with one political party or another political party. So it's not going to be simple to ensure that constitutional limitations are actually respected, and it's not straightforward how this inter-branch checking is supposed to work in practise. It might sometimes work, but we want to think about how it's going to work across a set of cases.

An independent judiciary, empowered to overturn, alter or return legislation, or to overrule executive action that runs afoul of constitutional limits, can be effective, but only if it's viewed as having the right kind of credibility and respect, and only if it's populated in a way so as to ensure it's independent. Additionally, if we're interested in having an institution such as a Supreme Court protect the democratic process, or the rights of political minorities, we'll need to think about in particular whether the members of that court are in a good place to do that. Will they have the right kinds of knowledge about the interests of political minorities? And will they have the right kinds of incentives?

 
constitutional interpretation
 
One background question is how much interpretation is going to be required and how the Constitution should be interpreted. The U.S. Constitution's very short, a little more than 4,000 words, and not very detailed. There are many provisions of the constitution that are vague and difficult to apply in particular cases. And constitutions become outdated.

 
precision versus comprehensiveness
 
For example, there's no provision for an air force in the United States constitution. There's no discussion of whether sophisticated computer database searches constitute inappropriate intrusions into our personal affairs, or whether infrared technology pointed in our direction constitutes a search of our person or of our house. These interactions between technology and law create real difficult questions.

If we want to limit the government, one thought is that we should have a more precise constitution that spells things out in great detail, but perhaps covers less because it's not as expansive. We can't interpret it to cover many different kinds of scenarios, or maybe it should be a less precise but more comprehensive constitution, which will require updating and interpretation for complicated new cases, but which will at least provide guidance of some kind, or limitation of some kind in more cases. Maybe we can pay more attention to the spirit of the law rather than the letter of the law.

 
theories on the purpose of constitutions
 
The next two segments deal with two broad theories regarding the purpose of constitutions. The first theory is the precommitment theory. The second theory is the democratic process, or the representation reinforcing process theory. Several questions will run through out these discussions. The first is the purpose of Constitutions question: Why should we have a Constitution?

 
precision versus comprehensiveness
 
The second is the mechanisms of Constitutions question. If we want a constitution for this purpose, what would need to be true for the constitution to actually help us realised that purpose. What are going to be the mechanisms by which the Constitution achieves that purpose?

The third question is the question of the legitimacy, or authority, of the Constitution. Why is having a Constitution morally permissible if that Constitution is somewhat anti-majoritarian? In particular, why is it permissible for some previous group of people to bind us now to something, so that a simple majority of us now opposing it won't be sufficient to overturn whatever it was that this previous group put in place? Doesn't this flout the idea of self government or democratic government?



8.4. Pre-commitment and constitutional authority


 
constitutional legitimacy
 
One question in the background is the question of constitutional legitimacy or constitutional authority. If the constitution will be essentially a limit on what we can do politically, there's a question of who is morally justified in imposing such a limit, or why we should treat the Constitution as having continuing legal, political, and moral authority. In particular, we might ask of an old Constitution like the United States Constitution, why should we be bound or limited by what some long dead people thought and chose to agree to?

This question can be made even more pointed if we note that those long dead people were all white, all male, and many of them held slaves or were in other ways not people who we would today look to as any kind of moral authority. And we might think that it goes against ideas of self government to be limited or ruled by people from the past in this way.

 
Richard Posner's view
 
So as the prominent legal theorist and the current Federal Court of Appeals judge Richard Posner put it, everyone who voted for the Constitution is long dead, and to be ruled by the dead, hand of the past is not self-government in any clear sense.

There's a dead hand control worry. This extent of this concern will depend on a number of different things, such as the nature of the limitation imposed. We're might be limited to do something that nobody has a moral right to do, for example to torture an innocent person. Then we might think that this is a limit that the Constitution doesn't really create but only articulates.

 
constitutional legitimacy
 
It also might matter how long it has been since the constitution was last created or authorised. Maybe many of us were around then and had some part in authorising that constitution. There'll be questions about how the constitution is going to be interpreted. So if it's allowed to be flexible and in some sense a living document, this dead hand control concern might be lessened. But if we're going to read it very literally, very strictly in a sort of originalist fashion, that might raise this concern more powerfully.

It might also matter how hard it is to amend the Constitution. If it isn't that hard to change the Constitution, then there might be a tacit consent. So if we don't actually go to the trouble of changing it, there's a sense in which we tacitly consent to these limitations. It's worth noting that there's a tension at the centre of the use of constitutions as limits. So Thomas Jefferson, who was not one of the signers of the Constitution, but he was a very important American political thinker of the founding era, was very worried about this dead hand control problem. In a letter to James Madison he wrote in 1789, he argued that the problem of dead hand control over future generations was so significant that there ought to be a requirement in the constitution itself that it be re-authorised every 19 years so that each new generation will have to explicitly and formally embrace it or rewrite it.

 
rigidity and limitation versus flexibility and responsiveness
 
The founders of any country working on the initial founding documents, for example the constitution, would have thought they're working together to come up with a good system, but they might have been very worried about the idea that what they were doing would be treated as something like a sacred text. There is a deep tension at the heart of constitutionalism between rigidity and limitation on the one hand and flexibility and responsiveness on the other hand.

 
precommitment theory
 
So one theory that's been offered to help both explain and justify the use and authority of constitutions is the precommitment theory. We can begin by asking two questions. Question one, how can some group of people come to work together even in the face of disagreement about what needs to be done? One answer is that we can all pre-commit to particular procedures and institutions that we can then use to make collective decisions about substantive issues that will be stable and conclusive even when we disagree about the substantive issues. This kind of rationale would justify us as a community precommitting to a constitution that will help us preserve democratic processes.

Question two, how can ensure that we as a collective will act only as our best selves, not allowing moments of panic or fear or prejudice to cause some of us to turn on a minority of us. One answer is that we can pre-commit to certain values and enshrine those values and certain anti-majotarian rules in institutions. This kind of rationale would justify pre-committing to a Constitution that will help us avoid political overreaching into personal lives, to help us avoid scapegoating or acting in a hostile fashion to some currently unpopular political minority, or to help us live up to certain values, such as, protecting the healthcare or housing for everyone.

 
sirens
 
In both of these, we see an idea of precommitment. This is something of a technical term, but the roots of the idea come from the story of Ulysses or Odysseus and the Sirens in book 12 of Homer's Odyssey. So in that story, Ulysses had been told about the dangers of the Sirens. They had particularly beautiful voices, but their voices were so compelling they would lure nearby sailors with their enchanting music and cause them to shipwreck or to die on the rocky coast of their island. So Ulysses wanted to hear their voices, but he didn't want to die.

Being a clever guy, he made an agreement with the crew of his ship as they approached the Sirens. So Ulysses wanted to hear the siren's song, but he knew that doing so would render him incapable of rational thought. He put wax in his crew's ears so that they could not hear the song and he had himself tied to the mast of the ship so that he could not try to swim or sail to the island of the Sirens. He ordered his crew not to change course under any circumstances and to keep their swords upon them to attack him if he should break free of his bonds.

And indeed upon hearing the sirens' song, Ulysses was driven temporarily insane and struggled with all of his might to break free so he might join the sirens, which would have meant his death. But he didn't break free from his bonds, and when they were at very safe distance, away from the sirens, they were able to release Ulysses, and Ulysses had the benefit of hearing this song. This is the classic example of the kind of pre-commitment strategy where Ulysses decided to have himself tied to the mast so that his later self, when he's temporarily insane from hearing this song, won't do something that he really would regret.

Here's another example. Imagine there are five people who really want to go skydiving and to jump out of a plane. But they're worried that when they're up on the plane they'll get scared and back out. So each of them arranges with the others to have a large donation sent to an organisation they all detest in the event that any one of them backs out. That's a kind of pre-commitment strategy too.

Here's yet another example. Barbara knows that as she's getting older. Her mental life matters more to her than anything else and she doesn't want to live after her mental functioning deteriorates beyond a certain point. So she arranges for a relatively simple cognitive functioning test, one on which a normal adult will easily score 100 out of 100 every time. She arranges for this kind of test to be given to her every three months. If her score goes down for three consecutive tests, and the last two tests register below a specific clear threshold, for example a score of just 20, then a pre-implanted device is going to release a lethal but non-painful poison into her bloodstream.

 
general structure
 
The general structure of all of these can be described as follows. So first there's the subject, call that person S. At one point in time, call that T1, S makes a decision to bind herself at some later time, call that T2, by taking an action at T1 at the previous time that either will remove options or will increase the cost of certain options that she otherwise would have or might have had at time T2. Then at this later time, another agent or some automated system will prevent S from taking some action or from making that action considerably more difficult or more costly. That is a general template for these kinds of precommitment cases.

 
cognitive asymmetry
 
We might ask, why would this be rational? Perhaps, even better, we might see decisions like this, decisions to limit options later, as actually autonomy enhancing rather than autonomy reducing. One idea here is that we might imagine there's some cognitive asymmetry between the two times, T1 and T2, with the subject being in a better place in some sense cognitively in T1 than in T2. So, we think of Ulysses, who's going to be made irrational by the sirens at time T2. Or when we think about Barbara's mind it's not yet deteriorated in T1 and we think of her mind at T2.

 
epistemic asymmetry
 
A second idea is that there might be an epistemic asymmetry between T1 and T2. This means that the subject might be aware that she can take steps at T1 to make sure that at T2 she makes a decision that is better epistemically informed. So here's a somewhat artificial case. Maria is sophisticated hiker, goes on these complicated hikes through unknown terrain. She has two different watches that have a GPS function and can use satellite data to tell her where she's physically located, and each of them has a lot of other different functions and gadgets.

One of the two watches has a much better map program, which much more reliable data regarding trails and distances and elevations. Unfortunately, Maria routinely forgets which of the two watches is the one with the better map function and she'll need both watches for the first long stretch of her hike, which is through known territory that she already knows well. So, at time T1 she comes up with a solution. She puts a weaker battery in the watch that has the worst map function, so that the map GPS option will be unusable when at this later time T2, she enters the unknown territory and wants to be sure to use only the better GPS system.

The idea is that she wants to ensure at time T1 that she'll be acting based on the best information available at time T2. The legal and political theorist, Stephen Holmes, has argued that in order to enable future generations to cooperate as a collective agent, we now at some T1 must adopt a constitution that will create and entrench particular procedures and institutions for collective decision-making. We might see this as a pre-commitment strategy. If we don't have an agreed-upon procedure, anytime that I lose through the existing procedure, I might object that we should change the procedures so that things would work out in my favour. We don't want that, so we might need constitution.

It might seem a moral justification for the constitution being accepted as binding on future generations and for having an unelected institution like the Supreme Court that's able to uphold the Constitution even against democratically elected legislative officials and their decisions if those decisions violate the Constitution. The suggestion is that having a Constitution like this that's protected by strong judicial review is actually going to be autonomy enhancing for us contemporary members of the political society, since it enables us to engage in morally important collective action and to work together. The idea is that this is an autonomy enhancing strategy. It gives us the capability to do things that we otherwise wouldn't be able to do, which is to collectively to work together even when we disagree.

 
Jeremy Waldron's view
 
Jeremy Waldron, one of the world's legal and political philosophers, is sceptical about this line of thought. He argues that this isn't an instance of autonomy enhancing precommitment. In particular, he argues that there's no cognitive asymmetry between the founders or the founding society and the current citizens. There is sometimes the suggestion that the founders were particularly wise, but there's no evidence for this.

Additionally, the founders certainly had much less information than we do now, both about the world in general and particularly about our world and it's problems. There are new developments in science and economics. We've learned from history, sociology, and all kinds of fields that seem relevant to governance. They didn't have any of that information back in the 18th century.

Furthermore, there's no reason to think that current citizens are under some kind of irrational influence equivalent to the sirens' song or that we're temporarily intoxicated or in some other way impaired all of the time. If there are temporary bouts of this kind, we might address this by requiring legislative delays for some things. For example, it's not possible to immediately pass some law detaining a group of people. Finally there are reasons to think the founders were the cognitively disadvantaged ones, or at least that they had many more prejudices and biases than we do today. That might be controversial, but it's not obvious that they're somehow better than we are in those regards.

Another concern is that there's not a clear mandatory instruction given by the agent at T1 to some other agent at T2. The Constitution's quite vague in parts. It requires interpretation and in the United States it's interpreted by nine individuals that the agent at T1 didn't choose. It doesn't seem to fit well with the other analogies, where there is a really tight instruction from the person at T1 that will restrict her in various ways in T2.

Perhaps, the biggest concern is that the persons at T1 and those bond at T2 are not the same group of people. It's not like the case of Ulysses, who is the same person at T1 and T2. In the constitutional case, something very different is going on, with the founders at T1 binding some current alive and very different group of citizens at T2 hundreds of years later.



8.5. Pre-commitment revisited


 
precommitment theory
 
Pre-commitment can be seen as an autonomy enhancing strategy for a political community. It can open up the possibility of either governing together democratically even when we disagree or of living up to our deep commitments and values, even when there is a temptation maybe to depart from them. In that second vein, people often talk about some of the actions taken during times of war or national emergency when panic and fear can lead us to do things that at least some have argued were immoral and unconstitutional.

 
Japanese detention
 
One example often cited in this context is the decision of United States President Franklin D. Roosevelt to authorise the internment of Japanese Americans during World War II through executive order 9066, issued a month after Japan's attack on Pearl Harbor in 1942. Between 110,000 and 120,000 people of Japanese heritage were forced into internment camps throughout the United States.

About two-thirds of these people were American citizens with the other third being resident aliens, many of whom had long been inhabitants of the United States, but had been deprived of the opportunity to attain citizenship by laws that blocked Asian born nationals from ever achieving citizenship. There were many reasons for this internment, but most of them boiled down to some combination of irrational fear and racial prejudice. The internment was challenged at the Supreme Court in the well-known Korematsu case, but the internment was upheld.

 
Ringle Report
 
The government's lawyers in that case suppressed crucial evidence in the form of the Ringle report, a report from the Office of Naval Intelligence. That report, drafted to inform the president in making a decision about what to do with respect to relocation and internment, was clear that there was no threat posed by the vast majority of Japanese-Americans.

It said, in short the entire Japanese problem has been magnified out of it's true proportion, largely because of the physical characteristics of the people; that is is no more serious that the problems of the German, Italian and Communistic portions of the United States population, and finally, that it should be handled on the basis of the individual, regardless of citizenship, and not on a racial basis.

 
justifications for pre-commitment
 
One suggestion that's been made is that a better or stronger precommitment would've prevented us from acting based on irrational fear and prejudice in this moment of fear. Similar things have been said more recently in the wake of 9/11 about the tension between security and civil rights. Many other examples of this kind can be offered throughout the history of most existing nation states. These cases provide an illustration of one of the justifications for pre-commitment, the idea that there's a cognitive asymmetry between the precommitting subject and the later stages of that subject.

 
issues with the pre-commitment theory
 
There are issues with the precommitment theory. One is that it doesn't seem to be the same person or group that's doing the precommitting and then being bound. That is a problem for constitutional authority or a dead hand control problem.

On the other hand, some have argued that there is something like the American political community, where the details of this group will change, but there's some significant continuity over time. That might fill in the gap so that we might think that there's some kind of tacit consent in the background, given that we don't alter the Constitution. Given how difficult it is to amend the Constitution, it's hard to argue that we all tacitly consent, just because we don't change it.

There are other concerns about the pre=commitment theory. One is the possibility of information change. What if we come to have more and better information at the later time T2 than we have at the earlier time? Some have argued that after 9/11 we've learned that we have to draw the line between privacy and security in a different place. It would be a mistake, this argument maintains, to think that we used to have the right set of values, the prized privacy and civil rights of various kinds. That drew the line in a particular place and post-9/11 we've now seen that we need to allow much more in the way of intrusion into our private lives. Instead, this argument suggests, we have new information after 9/11, so that we can better appreciate the threats that are out there.

Another worry about the precommitment strategy is that, if we're considering situations in which a lot of time is passing, it's not implausible that our values might change over time. So why should we let our values at time T1, the earlier time, be the ones that will determine what happens at this later time T2, if our values really have changed in between those two times? It's true that we can amend the constitution to reflect the more recent values, but this is often going to be difficult. That's the whole idea behind entrenching things. That means that there might well be cases in which a majority now has values that would incline in one direction but that's going to be insufficient to change the Constitution.

 
What else might justify the restriction on majority political action?
 
There's no obvious reason to think that the earlier values were the right ones and that the new values were the wrong ones. Some, such as Supreme Court Justice Antonin Scalia, plays up the importance of tradition and history, and suggests that we should embrace these traditional values, suggesting those are the right ones.

But many of our traditional values we know are compromised by racism and sexism and other forms of prejudice. So it seems like a real concern, particularly if we can't make the case that there's some kind of cognitive asymmetry between the earlier time and the later time. These concerns identify problems both with the rationality of pre-commitment, and the claim that precommitment is somehow autonomy enhancing for the agents bound at the later time.

Pre-commitment theory doesn't seem promising as a way to justify the constitutional authority, given that constitutions entrenched against simple majoritarian modification. We can't change the constitution just by having the majority of us vote to do so. The precommitment analysis doesn't seem appropriate in a lot of cases. So we might ask, what else might justify these kinds of restrictions on majority political action? The arguments from the process or representation reinforcing school of thought highlight the way in which we may need to restrain the majority in order to allow the continuation of democracy.



8.6. Constitutions and process theory


 
purposes of having constitutions
 
One of the purposes for having a constitution in the first place is to protect certain aspects of the political system, particularly those parts of the system that are integral to the systems being democratic, and to try to entrench those beyond modification.

 
Democracy Process Protection Theory
 
The Democracy Process Protection Theory focuses more on the idea that a political system is only legitimate if it abides by certain norms of equality and liberty, and that these are intimately tied up with or even constituted by democratic procedural norms. As a result a legitimate system is going to almost certainly have some mechanism that ensures that its democratic character is stable and preserved and protected over time.

In the United States context, this idea is perhaps most evident in the legal theorist, John Hart Ely's Representation Reinforcing Process Theory. Ely was the clerk for the famous Supreme Court Chief Justice, Earl Warren. Earl Warren presided over some of the most significant decisions in the Supreme Court's history and so some of Ely's work shows up in these cases, but also in his other writings. Warren helped to oversee something of a revolution in the way that democracy was conducted in the United States.

 
John Hart Ely's view
 
There're a number of examples of the supreme court getting involved in this way to help promote genuine democracy, and to abide by norms of equality and liberty. Perhaps most importantly, there was a series of cases that looked at among other things, inequalities of how districts were being drawn. There was a real problem of districts being drawn so that people essentially had very different political power, depending on where they lived.

 
one person one vote
 
In some very important cases in the 1960's, such as Baker v. Carr in 1962, Reynolds v. Sims and Wesberry v. Sanders in 1964, the Supreme Court held that electoral districts had to be roughly equivalent in terms of the number of people living in them, so that the principle of one person one vote would be achieved in practise so that people would have roughly equal political power.

Chief Justice Warren put the idea behind these cases this way. When arguing that it was appropriate for the Supreme Court, which is not one of the political branches, to get involved, he said, if everyone in this country has an opportunity to participate in his government on equal terms with everyone else, and can share in electing representatives who will be truly representative of the entire community and not some special interest, then most of the problems that we are confronted with would be solved through the political process rather than through the courts.

 
Chief Justice Warren's view
 
So the suggestion that Chief Justice Warren was making is that this is a role for the Supreme Court to try to protect the process so that the court can otherwise sort of stay out the of way. Chief justice Warren argued that, legislators represent people, not trees or acres. Legislators are elected by voters, not farms or cities or economic interests. And so he saw that there was no reason that history alone, nor economic or other sorts of group interests, could justify giving one person a greater voice in government than any other person.

 
Chief Justice Warren's view
 
The United States had a real problem about political equality along this dimension. Prior to these cases in the 1960s there was a lot of political inequality based on districting. It was quite common for there to be huge variation between electoral districts for local state and federal elections. So among the more extreme pre-Reynolds disparities were the following situations.

In the Connecticut General Assembly one House district had 191 people living in it and another district at the same level had 81,000 people. Both had the same number of Representatives. In the Utah State Legislature, the smallest district there had 165 people and the largest had 32 thousand people. In the Vermont General Assembly, the smallest district had 36 people and the largest had 35,000. Each of those got the same number of representatives in the legislative body. Los Angeles County, California, then which had 6 million people, had just one member in the California State Senate as did 14,000 people of one rural county.

 
Chief Justice Warren's view
 
Chief Justice Warren pointed out that these differences undermined the idea that we are all equal, politically speaking. He argued that the overriding objective must be substantial equality among the various districts, so that the vote of any citizen is approximately equal in weight to that of any other citizen in the state. Chief Justice Warren justified this decision on the grounds that it was required by the Constitution's guarantee of equal protection under the 14th amendment.

But as was pointed out in dissent to these opinion, it's not explicit in the Constitution itself. The equal protection clause discuss districting and representatives, and when you consider the United States Senate, which itself is an instance of this kind of uneven representation, it seems harder to argue that the Constitution clearly requires this. Right now in the United States the state of California has 38 million people living in it, while the state of Wyoming has 600,000 people living in it, but each of these states gets exactly two senators to represent them in the United States Senate.

Still Chief Justice Warren argued that the Senate imbalance was explicitly required by the Constitution. The rest of the institutions, he argued, should be structured in a way that better respected political equality and norms of democratic self government. These decisions made a huge difference throughout the country in terms of what state and local political institutions looked like. And it was just a decision made by a few individuals on the Supreme Court and it went against the way that the states and local governments themselves have chosen to set things up.

 
decisions
 
The real question's here about where the authority to make this kind of decision might come from. There are many other examples of decisions of this kind throughout the world in different kinds of constitutional systems. Often you get decisions to limit electoral speech and advertising and campaign contributions all in the name of protecting the democratic process and making it really egalitarian.

There are decisions made to ensure access to the ballot so that people can actually run for office and that people can actually go vote, and there are decisions made by courts around the world to desegregate public institutions, to protect political speech, and to protect legal process rights. All of these can be seen as ways of having a constitutional regime, which is often supported by what looks to be a non-majoritarian institution, something like a unelected Supreme Court.

 
secure and protect
 
The basic idea of the process protection theory is that a constitution's purpose is to secure and protect majoritatian representative non-tyrannical government and then in part because of concerns about inappropriate dead hand control. A constitutional court should not be about selecting and accommodating more substantive values outside of this kind of realm of democratic process.

 
process norms
 
Instead, once the democratic process is well protected and in place, those kinds of decisions should be left to the political branches the legislature and the executive. The Constitution and the institutions enforcing it should be concerned with process norms of at least two different kinds.

These are process norms with respect to the application laws to particular individuals, Ely calls this Process Writ Small, and process norms in the creation of laws through broad participation processes, Ely calls this Process Writ Large.

 
participation oriented, representation reinforcing approach
 
Ely's idea is that the Supreme Court, through judicial review, should help accomplish this purpose through a participation oriented, representation reinforcing approach. So the Supreme Court or some similar kind of institution should intervene at various places to enhance the political processes to make them more majoritarian and more democratic, and the Supreme Court should intervene to ensure that the process affects everyone equally, making sure that all interests are taken into account when decisions are made and that the costs of politics are fully and equally borne by all.

Although they might look anti-majoritarian in a certain way, institutions such as the Supreme Court are playing this sort of democracy promoting role. Furthermore, judges, Ely argues, are in a good position to serve this role. They're not experts on substantive values in particular, but they are experts on process writ small, which is the small scale legal process. He also says that they have the right perspective on process writ large or the big picture of the democratic process.

 
denying protection
 
So, unelected courts such as the Supreme Court are in a good position to identify when the large democratic process is being contorted to the advantage, for example of incumbent politicians, and they can identify when a majority is using its current political power to freeze out minority views or minority interests, and effectively denying them. This is a quote from Ely, effectively denying them the protection afforded other groups by a representative system.

So, unlike elected officials, judges are, according to Ely, comparative outsiders in the political system. The reason that it doesn't flaunt democratic norms is that judges are particularly well suited to the task, according to Ely. Are judges well suited to this role? One might worry that judges have their own reasons or views about what democracy or equality or political self-government or freedom requires.

Ely admitted that judges aren't that good at thinking about political questions. But just like the right to have an abortion, or the use of the death penalty, or anything else that might seem morally controversial within a political community, a lot of these decisions about political equality and democracy and self-government are also going to be controversial. And if we look to recent court decisions around the world, we see all kinds of controversial decisions being made about the political process. Courts have supported the rights of powerful individuals and corporations to make sizeable contributions to political candidates or to promote those candidates through political action committees and interest groups, and to allow candidates to spend almost unlimited amounts of money.

There're reasons to question whether unelected judges are going to be good at protecting the democratic political process. There appear to be sort of hard and unsettled questions about the morally best way of understanding what's required for a political system to be adequately democratic, egalitarian, or liberty respecting. So maybe in the case of the redistricting in the United States it was relatively clear there was a problem but a lot of other issues might be much harder.

Perhaps we should see Ely's point as something like a comparative one. So unelected judges might not do this perfectly. They might sometimes get it wrong. They might at least be somewhat better than elected officials because they have fewer perverse incentives than elected officials do to create rules that favour themselves or that'll keep them or their party in power. Perhaps, as in the case of British Columbia and Ontario, some of these decisions would be even better made in the hands of randomly chosen citizens as in a lottocratic institution.

An additional concern about Ely's argument is that sets out a rather limited role for supreme court judges, but they do much beyond from just protecting Process Writ Small and Process Writ Large. So, his suggestions would actually make it seem that we should really reign in what the Supreme Court in the United States is actually doing.



8.7. Constitutions, judicial review, and constitutional interpretation


 
judicial review
 
Legal philosophers and legal theorists use the term judicial review to refer to judicial review of legislation, executive action, administrative decision making, and the actions of other courts and legal actors. There are different things that might happen from this review.

 
strong judicial review
 
In a strong system of judicial review, courts have the authority to decline to apply a statute in a particular case, although, it seems that the statute would apply to the particular case. Strong judicial review might also involve modifying the effect of a statute so that its application conforms with individual constitutional rights.

Strong judicial review might also rule a whole law unconstitutional, establishing as a matter of law that a given statute or provision won't be applied in any case. Maybe the law was passed, but exceeding the authority of the institution that passed it.

 
weak judicial review
 
In weaker systems of judicial review, a court might scrutinise legislation or other political action to see if it is in alignment with the Constitution. Then they won't block it or overturn that action if they find that it isn't in line with the Constitution. Instead, they might have an advisory role. There're different forms of judicial review and there's different things that might follow from it.

There might be different reasons for having a Constitution, and depending on what is contained in the Constitution, and depending on the reason for having the Constitution, there might be different bases on which a court would overturn some legislation or block some political action. The idea is that what a court can do in terms of judicial review might be limited by what the Constitution actually includes.

 
concerns judicial review
 
There are a number of different kinds of concerns that have been raised about judicial review. The most prominent one is the counter majoritarian problem, which is the idea that judicial review seems to elevate the views of a handful of people above those of millions. A recent example in the United States is that Chief Justice John Roberts had to single-handedly decide whether the Affordable Care Act would be implemented in full or not.

This affects whether millions of people would get health care coverage, how they would get it, and how much they might pay for it. This comes after years of discussion and debate about health care reform and health care legislation, and after getting the legislation through Congress and signed by the President. This could be troubling from a perspective of political equality and democracy, and from the perspective of self-government. Why should just a few people, who weren't even elected, have so much power over what policy actually gets implemented?

 
Barry Friedman's view
 
Some recent work has challenged whether the Supreme Court really is a counter-majoritarian institution rather than something more like another institution that's largely in step with popular opinion. The legal academic constitutional theorist Barry Friedman, in his book, The Will of the People, has argued that historically, if you look at evidence throughout the history of the Supreme Court, hasn't acted as a counter-majoritarian institution. Instead, it has mostly been in step with sort of the popular view of what should be done.

If this is true, then this might spell trouble for at least one justification for having a Constitution and a Supreme Court to protect that Constitution. If the Supreme Court just moves in step with what we want then it's not going to be a check on the majority. Another concern that's been raised about judicial review by the legal and political philosopher, Jeremy Waldron, is that judicial review distracts citizens from the real issues that they should be talking about, and instead requires them to focus on side issues about precedent, texts, and interpretation.

One issue that arises is that, how troubled one is going to be by judicial review is going to depend on what it is that, say the Supreme Court or the Constitutional Court, is actually doing. If they're doing something that seems to require a lot of legal expertise, then perhaps we do not mind if they're unelected and chosen mostly for their legal expertise. If, on the other hand, they're doing something much more expansive, such as offering a moral vision on the Constitution or making policy decisions similar to that a legislature gets to make, then we might worry a lot more about whether they are adequately democratic, adequately accountable, or adequately representative.

 
amendment
 
One's theory of Constitutional interpretation might well connect both to one's argument for having a constitution in the first place and to one's support or lack thereof for a court with strong powers of judicial review. So, it's worth thinking more about Constitutional interpretation in this context. The legal and political philosopher Ronald Dworkin had a view of Constitutional interpretation that put morality and making moral judgements at the centre of the task. He repeatedly stressed that Constitutional cases were often hard cases, and that our Constitutional system is not a simple majoritarian system.

He noted that, although there are some constitutional provisions that are very detailed and precise, such as explicit age requirements for various offices or the requirement of a jury trial in federal criminal proceedings, there were other provisions that were not at all precise.

 
amendment
 
The 14th Amendment of the US Constitution says that, no state shall deny to any person within its jurisdiction the equal protection of the laws. That invokes an equal protection idea, but it doesn't spell it out in any detail.

 
amendment
 
The Eighth Amendment says that, excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted. It uses these words, cruel and unusual, but it doesn't then list what they took to be cruel and unusual.

The Fifth Amendment says that, nor shall any person be deprived of life, liberty, or property without due process of law, nor shall private property be taken for public use without just compensation. There's a question of how to understand due process of law, or what just compensation is going to be. This is invoking moral ideas, but not giving any detail. Similarly, with first amendment rights of freedom of speech. There's something set out there, some freedom, but it's not spelled out in any detail.

 
Ronald Dworkin's view
 
In all of these cases, there are moral concepts invoked, but not expanded upon. Dworkin stresses that there'll be difficult questions about how these moral concepts are going to apply to particular cases. Dworkin is very aware that there's this counter-majoritarian worry looming in the background, and that in general, having a constitution means that there's going to be interference with majoritarian democratic practise, that there will be restraints on what we, the people, can do.

Furthermore, he notes that this kind of interference and restraint requires justification. Then Dworkin writes, the draftsmen of the Constitution assumed that these restraints could be justified by appeal to moral rights which individuals possess against the majority, and which the Constitutional provisions, both vague and precise, might be said to recognise and protect.

 
Ronald Dworkin's view
 
He sees morality as being at the centre of the justification for these Constitutional restraints. The idea that we have individual rights and these must be protected. That's a moral justification for having these sort of counter-majoritarian rights. And importantly, he suggests that these somewhat vague standards and restrains were adopted deliberately. As a result, any case arising under these vague Constitutional provisions can be seen as posing two questions.

 
Ronald Dworkin's view
 
First, which decision is required by strict faithful adherence to the text of the Constitution or to the intention of those who adopted that text? Second, which decision is required by a political philosophy that takes a strict or narrow view of the moral rights that individuals have against society?

These are different ways of interpreting the Constitutional text, particularly with respect to vague moral provisions. On the first view, Dworkin talks about, which we can call the just-what-was-in-their-minds view, trying to pick out just those specific things that the authors of the Constitution had in mind when they used words like cruel, unusual, or equal.

 
Ronald Dworkin's view
 
As Dworkin puts this view, if the framers of the Constitution used vague language, then what they said or meant is limited to the instances of official action that they had in mind as violations, or, at least to those instance that they would have thought were violations if they had had them in mind.

This is a view he doesn't subscribe to. This limits Constitutional rights to those recognised by a fixed group of people, the founders, at a fixed date in history, and it creates, for that reason, the concern about dead hand control. Dworkin objects to this kind of just what-was-in-their-minds view.

 
Ronald Dworkin's view
 
He suggests, instead, that we think about how we use moral concepts, how we use them. He gives the following example. If I tell my daughter not to treat others unfairly, it might be true that I have in mind some specific examples of the conduct I think she shouldn't engage in, but I would expect her to apply my instructions to situations that I had not thought about, and could not have thought about. And I would be ready to admit that some particular act that I thought was unfair when I spoke was actually fair, or vice versa, if convinced by some argument.

If I were so convinced, as Dworkin puts it, I would want to say that my instructions covered the case he cited, not that I had changed my instructions. So, we might say treat other people fairly. When we say that, we have some particular things in mind, but we don't think our instruction is limited just to what we have in our mind right then.

Instead, we expect people to think about fairness, and they might even argue with us. We might have thought something was unfair, and they might convince us that we were wrong about that, and we wouldn't think that changed what our instruction was. So, he says, this shows that this in-their-minds view is incorrect as a theory of the meaning of what they said. As he suggests, I meant me daughter to be guided by the concept of fairness, not by any specific conception of fairness that I might have had in mind.

 
particular conceptions versus concepts
 
Here Dworkin relies on a distinction between concepts and particular conceptions of those concepts. The concept of unfairness will be shared by a large group that believes that unfairness is a special kind of moral defect that consists of a wrongful division of benefits and burdens or of praise and blame, and that there might be some clear cases of unfairness that we'd all agree about.

A conception of unfairness is going to be a specific theory that explains why some cases are acts of unfairness and why a particular division or distribution is unfair. The conception is a sort of explanation, trying to not just react to our concept but to sort of explain it in a certain way. In his vision of constitutional interpretation, vague provisions employ concepts, and so Constitutional interpretation is going to involve moral philosophy. The Constitutional authors gave instructions to all of us to pay attention to these moral concepts.

 
Ronald Dworkin's view
 
They were posing moral issues for us to consider. They're not telling us or the judges interpreting the Constitution to pay attention to their specific conception of these concepts. As a result, as Dworkin puts it, the court can enforce what the Constitution says only by making up its own mind about what is cruel, just as my children can do what I said only by making up their own minds about what is fair.

 
Why is this the task of the Supreme Court?
 
He continues, if courts try to be faithful to the text of the Constitution, they will for that very reason be forced to decide between competing conceptions and political morality. This is the Dworkinian moral reading understanding of Constitutional interpretation.

It raises some questions. Why are the members of the Supreme Court, the right people to do this job? Shouldn't we instead have moral experts doing this work, if this kind of moral interpretation is being done? And why, as Jeremy Waldron might ask, can't we do this democratically? Why do we need to do this through this unelected institution?



8.8. Constitutional interpretation


 
originalist approach
 
There are two other broad families of theories, the originalist approaches and the living constitutionalist approaches. The originalist position on constitutional interpretation is that we should try to understand what the constitution would have originally meant when it was authored, discussed, and encountered by people at the time of the founding. One of the core rationales for originalism is the idea that if the Constitution is supposed to bind us, or to protect certain rights, it needs to be read in a relatively rigid fashion, as anchored at the time of its adoption.

 
intent versus meaning
 
Justice Antonin Scalia is one the best known originalists. He argues that the problem of constitutional interpretation is distinctive not because special principles of interpretation apply, maybe as Dworkin would suggest, but because the usual principles are being applied to an unusual text. He doesn't want originalism to be about the framers' intentions. He rejects intent originalism. In general, Scully is very suspicious of claims about intentions.

Instead, he says we should focus on the original meaning of the constitution, or look at what the framers would have thought they were communicating, but also at the relevant history and how words were being used at the time.

 
Why originalism?
 
There are going to be real difficulties about how best to do this from a methodological vantage point. And again, we might ask whether judges are well placed to do this, rather than historians and linguists. This has been a sustained critique of originalism, along with the critique that judges and facts sort of cherry pick their history, picking the historical arguments that support the policy positions they want to reach.

 
Antonin Scalia's view
 
Justice Scalia makes several different arguments. He argues that the role of a judge is not to make law, which is what they will be doing if they interpret words to mean what they ought to mean, according to that judge. He argues that the purpose of constitution is in his words to prevent change, to embed certain rights in such a manner that future generations cannot readily take them away.

Then he suggests that this purpose is thwarted if we allow what's called living constitutionalism, where we allowed the meaning of the text to shift with our current understanding of these concepts and ideas. He also argues that there's no agreement on what the guiding principle of evolution should be, whereas with original meaning he says at least can be known.

 
living constitutionalism
 
Finally, he says that if we accept a moral reading of the Constitution, or living constitutionalism, then we're going to get selection of judges, not for legal skill and judgement, but for their moral and political views, and he thinks this isn't the system we have set up. Lawrence Solum has offered a very refined version of originalism.

 
living constitutionalism views
 
On the other side of originalism, we have various versions of living constitutionalism, all of which accept that we should allow for the meaning of the text to be interpreted in a way that might depart from the historical understanding. First, there is semantic living constitutionalism, which interprets the Constitution in light of the current meaning of words, looking at how we use those words today. It's semantic, focusing on the meaning of words, and how this meaning can change over time.

Second, we have moral living constitutionalism, which states that we now must interpret the Constitution in current socially shared values or norms. We look to see what does our community think about the morality of this. How would we as a community define cruel, or define unusual? This kind of moral living constitutionalism is different from the Dworkinian picture. In the Dworkinian picture, judges are supposed to think about what they take to be the moral truth. They're not supposed to just look out and see what the community thinks about something.

On the moral living constitutionalist picture, we'd be looking more at shared moral beliefs within a community. We see which moral beliefs are widely held, and update the meaning of the Constitution in light of that. Finally, we might have some kind of combination view, which would suggest that judges should interpret the Constitution in light of both the current meaning of words, and in light of the current shared values, that are invoked by the Constitution.

 
approach
 
All these living constitutionalist approaches suggest that the problem of dead hand control is a very serious one. And then they argue that concerns about information asymmetry between the founders and those of us today, make it inappropriate to adhere just to sort of the original meaning, or to what the framers would of thought about the Constitution. So we encounter all kinds of new problems that they had no idea about, and so we should update our understanding of the Constitution to help us deal with those problems.

 
how to choose
 
Additionally, many of the living constitutionalists point out the difficulty of amending the Constitution in the United States, and so they point out that flexibility under the US constitutional system comes through interpretation of the Constitution, rather than through amendment. Of course, this might make us think that the real problem isn't with originalism and dead hand control, but with the difficult amendment process.

How should we go about choosing a theory of interpretation? It's worth at least identifying three different strategies for thinking about how we should choose our theory of interpretation. The first involves moral or normative arguments, where we would make the case that it would be morally better to use this theory of interpretation, rather than that one. The second strategy involves semantic or descriptive arguments where we'd focus on theories of language and meaning and then argue that a correct theory of meaning or interpretation will require us to use this particular theory of interpretation. And then finally, we might use arguments that focus on the purpose or constitutions, and then argue that given the purpose of the Constitution, it should be this or that.

Then, we're going to use this theory of interpretation in a holistic picture, trying to take into account both why we have the Constitution and how we should interpret it. We might also want to think about various rule of law values and democratic values, considerations such as stability, predictability, and certainty. Those might also enter into our analysis about what theory of interpretation to go with. One thing that's been said against living constitutionalism is that it introduces a lot of change and it's very unpredictable how it's going to go. There's much more that might be said about constitutions, why we should have them, what they should protect, how we should protect them, and how we should interpret them.