Interpreting the Constitution: A Living Document?
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Interpreting the Constitution: A Living Document?

October 9, 2019

♪♪Music♪♪ During this lecture I want
to talk about the living constitution. In our previous lecture we
talked about originalism. This is the main alternative to
originalism. The notion that the constitution
is a dynamic document that has the potential to change over
time and that is something they think is, is true just because
it’s true, but that they also imagined and hoped it would
change over time to reflect changing conditions, changing
circumstances whether they be social or economic in nature. And like with originalism, there
are two different ways we can begin to understand where this
notion comes from. Why would somebody come up with
this idea as a mode of constitutional interpretation? And one of them is, like with
originalism it has a pragmatist side. This one has a pragmatist side
as well. And that is simply one that,
that we should not be ruled by the dead hand of the past. Originalist will say to living
constitutionalist you can’t understand the constitution this
way unless you amend the constitution. In one of our other lectures, we
saw how difficult it is to amend the constitution. So a living constitutionalist
would ask, or maybe they’re not soon to be constitutionalist,
would say, “Well why not?” Why should the constitution be
so hard to change if this issue I am so concerned about is so
important and the majority of Americans are so concerned about
it? It doesn’t make any since that
our foundational document wouldn’t give us an avenue or
vehicle through which to change, to change structures of
government in such ways they operate, to make them operate
better. Or to recognize new rights that
we’ve decided are fundamental or important for various reasons. So again, why should we be ruled
by the dead hand of the past? Why should conception of the
past rule us today? There is a theoretical side to
the notion of a living constitution. It is an idea we have talked
about before in other lectures and it comes from the great
legal and political philosopher Ronald Dworkin. The founders had in mind, not
specific conceptions of what your privileges or immunities
were or what due process meant. They instead understood them as
concepts not conceptions. So this very large amorphous
concept privileges and immunities they might have had
particular conceptions of what they were at some point and time
but if we understand them as categories instead of open ended
categories instead of limited categories though, we can
imagine that we would have different conceptions and we
honestly do. Over time and at different times
of what those privileges or immunities are, or what cruel or
what is cruel and unusual punishment. SO again this theoretical idea
bound with this intend idea is that the constitution is written
in general terms. There general conceptions, under
which, or general concepts, under which different
conceptions can fall and of course over time that will
change. But we can understand, so we can
understand kind of a practical, pragmatic end of a living
constitution and we can understand a theoretical one. But this notion didn’t really
take off in the United States. In other words, we didn’t have,
at the very least, many jurists who adopted this approach to
constitutional interpretation until the beginning of the
twentieth century. And I wanna to talk just a
little bit, a few minutes, about why that is the case. In other words, to situate the
beginning of the notion of the living constitution, in
historical time. And there’s no way to understand
it, there’s no way to understand it without situating it in
historical time as you’ll soon see. The late nineteenth century in
the United States and in fact in the entire western world changed
significantly as a result of the industrial revolution. American was increasingly
becoming less agricultural and more urban and more
manufacturing. When you look at demographic
shifts in the late nineteenth century you see less people
living on farms, say in the center of states. Let’s take Pennsylvania. We see less people living in the
center of Pennsylvania and more people moving to the urban
manufacturing cities of Pittsburg and Philadelphia on
either end. And there was rapid change,
right? We get the, during immediately
after the civil war the completion of the continental
railroad. Now goods and even services can
move with lightning speed relative to what they could have
just a decade before in the United States. These changes though,
particularly manufacturing changes in the United States,
become the, the source of a lot of disagreement among Americans. For example, with the rise of
urban manufacturing for example, say you’re a new immigrant to
the United States and you’re working in a steel mill. Steel mills today are still
pretty dangerous but I can assure you in 1895 they were
extremely dangerous. Many deaths, many injuries, some
permanent and horrible and heinous. SO, what if you get your arm
lope off in a steel mill because the owner of the steel mill
didn’t have the right equipment or didn’t provide you with um,
um, some kind of safety training or something like that. Did you have any recourse? You probably didn’t. So what and at the same time,
you might not have any recourse but you also have your nine year
old son working, working in the mines. What kind of recourse does he
have if he gets hurt? Probably none. What is he making? What are his wages? There probably extremely low
too. SO with this rise of
industrialization in the nineteenth century, we started
to see on a state level, state legislatures, democratic
majorities, elected democratic majorities try to reign in on
what they perceived to be the various effects of the
industrial revolution in the United States. Not that they didn’t like it but
tried to reign in and curb some of the side effects. And we started to see, as
Professor Robertson was talking about in the Bradwell case, the
passage of maximum hour’s legislation, minimum wage
legislation, workers compensation legislation on the
state level. Well, you can imagine that those
who owned the steel mills didn’t like this. They didn’t like having to say
to somebody, “Well I can, I want you to work 120 hours a week”,
and then responding, “No, I am only regulated, I can only work
60 hours a week cause this is a dangerous industry”. They certainly didn’t like the
idea of workers compensation, so they challenged these laws. And for the most part, the vast,
vast majority of them that reach the Supreme Court were
overturned as unconstitutional. The court said no to maximum
hours legislation, to minimum wage, workers compensation
structures, for the most part, they said no. More than likely understanding
of originalist intent to the constitution they found that
either in the Liberty Clause of the fourteenth amendment states
could not trample upon or abrogate what they perceive to
be a liberty of contract that we all had. If you had maximum hours
legislation in your state, that prevents the worker from
negotiating or contracting with his boss for as many or as
little hours as they are able to come to terms about. You have max, you have minimum
wage legislation, it prevents the owner and the worker from
coming to terms about how much money they are going to make. That violates Liberty of
Contract. On the national level, which
we’ll talk about in a little bit, the Commerce Clause of the
constitution, congress can regulate commerce but what does
commerce mean? Now the understanding of
commerce is changing because of the industrial revolution. Move from agricultural based
economy to a manufacturing based economy. Well, while, it is one thing
though to strike down state legislation, by the way, this
period is called the Lochner period. Based on a famous case in New
York called Lochner vs. New York which involved the New
York legislature passed a bill that said, a maximum legislature
bill that said that bakers could not work more than 60 hours a
week in the bakery. And the legislature did this
because they conducted tests and determined the inhalation of
dust, whether it be from the ground or the, or the bread and
flour, was dangerous and that no more than 60 hours a week, or
more than 60 hours a week spent in that environment could be
detrimental to your health. You can imagine that the owner
of the bakery was very upset about that, increase labor
costs, etc., the court strikes that down. Justice Peckham says that this
violates the idea of Liberty of Contract that’s so fundamental
to American constitutional culture. Here, here’s where a lot of
people try to date this, give a start date to, the notion of a
living constitution. Because it’s in that case,
Justice Oliver Wendell Holmes and Louie Brandice dissent. Brandice wasn’t on the court
yet, I’m sorry, Oliver Wendell Holmes. And Holmes says that the court
should not stand in the way of a dominant public opinion. Probably understanding, the
understanding of what would later become, to be known as the
counter majoritarian difficulty, which we talked about. The constitution doesn’t
absolutely prohibit something and a majority of the people
want it. The court should not stand in
their way. In other words, the only time
they should stand in their way is if, what a majority wants is
blatantly unconstitutional. So, Holmes and then later
Brandice would work together in developing this notion. Let’s get back to the historical
end of this. The state, the consti, the court
was striking down this kind of legislation on the state level. But then something happened in
1929 that we all know about concerning the economy. We have the stock market crash
and the ensuing Great Depression. Well, President Roosevelt, in an
effort to get us out of the depression, and in hopes of
developing legislation to prevent something like that from
happening before, passes a whole series of pieces of legislation,
based on lots of provisions of the constitution. Most specifically, most often
the Commerce Clause of Article I Section 8, which allows congress
to regulate commerce among civil states and with the tribes. And what did the court do, now
remember, this is for the most part, the same court from the
Lochner period, just 30 years 28 years earlier. They strike it down. They strike it down. Well, one of the most
interesting things about the FDR, about FDR’s presidency in
terms of domestic politics, was the court packing plan. The president said we shouldn’t
be, shouldn’t be held hostage by a court that has a conception
about what the Commerce Clause means from the horse and buggy
days. He actually got that term from
his driver who would drive him from the White House to the
press conferences and had made the same claim about the court
being, living in the horse and buggy days. Roosevelt famously threatens to
pack the court, to pass, to have his democratically controlled
congress pass legislation that would have mandatory retirement
ages and increase the amount of justices on the Supreme Court so
he would have, so he would automatically have the ability
to pack the court with those who were symp, sympathetic to his
legislative agenda. And they would have to be judges
that would have a more progressive notion of
constitution. This notion of a living
constitution, to be able to rationalize this tremendous
amount of federal power that you would need to condone to have
the kind of legislation that he wanted. Social security, the FDIC, all
kinds of, of programs. WE know that, that bill fails
but the court nevertheless, in terms of commerce, defers to
Congress and in a sense promises never to stick its head in to
determining what is commerce and what isn’t. And I fact, from 1937 to Supreme
Court does not overturn or strike down a single law as
vital of oath of the Commerce Clause of the constitution. So, that, those are really the
beginnings of a notion of a living constitution. That certain clauses should be
interpreted or understood as, or organic or as living things that
can be molded to the various crises of human affairs, as one
justice put it. I want to give you two examples
of how this plays out. An early example and then one
from the mid twentieth century very quickly. In the case of Missouri vs. Holland in 1920, right after the
civil war, Congress for many years had tried to pass
legislation regulating hunting and gaming. They weren’t able, sometimes
they were able to pass it, sometimes they weren’t. Many states thought this was a
state’s rights issue that only states had control over these,
over these issues, even though birds do fly across state lines. And how do we know if they don’t
if we don’t track them all or something like that. So what congress, what the
president did, was enter into a treaty with Great Brittan
regarding Canada’s birds. So who, who in the United States
would regulate migratory birds, you know, can you shoot them,
can you not, etc., etc. It would be Congress. But, again, they couldn’t get
this passed, it would, they couldn’t get this passed in
Congress. But we have to understand the
treaty provisions of the constitution say, you get a
treaty passed if the President and a third, two-thirds of the
Senate say it’s good. Then it’s a treaty. Well then you look at the end of
the constitution, the end, the last provision says that all
treaties, right, are applicable in the United States. In other words, they are the law
of the land. So you can in an sense, skip the
normal legislative process, by entering into a treaty that has
to do with domestic provisions. Well, the court, led by Holmes,
says this is not a problem. And he says we should understand
the constitution and its words in the light of our whole
experience. The whole history of what has
come before us. And giving meaning to different
provisions of the constitution. Thirty years later in Troup vs. Dollis, we have another example
of the notion of a living constitution. Here, here, this was a result of
a soldier who was dishonorably discharged and then couldn’t get
a passport because if you were dishonorably discharged, you in
a sense had your citizenship revoked, and he made the
argument that this was cruel and unusual punishment. But Chief Justice Warren said,
he said, I agree with you. So how are we to understand what
cruel and unusual punishment means then. What he says we have to
understanding it in terms of evolving standards of decency. SO there you can understand how
we wouldn’t be fixed by one meaning in the past as
originalism would have it. The notion of a living
constitution would say, as Warren did here, when we look at
these concepts like cruel and unusual punishment, we have to
give meaning to them as our evolving standards of decency
change. Maybe at one period of time we
thought it was all right to execute people who were sixteen
years old, but to death those who are under eighteen or
something like that. Maybe we don’t today. And, and originalism would
handcuff us to the dead hand of the past with that notion of a
living constitution would allow it to be flexible enough to
solve real significant problems that democratic parties wanted
to. Thank You, Applause) (Music)
Freedom 101 is made possible by generous support from Woody
Young and the University of Oklahoma Alumni Association
Freedom 101 is a program of the Institute for the American
Constitutional Heritage at the University of Oklahoma. For more videos and podcasts
visit (Music)

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