The “living constitution” is a theory of constitutional interpretation holding that the meaning of a written constitution can and should be updated by judges to reflect changing times. On The Bob Zadek Show it is treated as the principal alternative to originalism, and guests describe it as a judicial-updating view rather than a fixed-meaning view of the Constitution. The topic is discussed in two episodes: a September 2020 conversation with Josh Blackman on judicial philosophy and a October 2020 conversation with Randy Barnett on Amy Coney Barrett’s nomination.
Definition and contrast with originalism
Randy Barnett offered a compact definition of originalism: the view that the meaning of the Constitution should remain the same until it is properly changed by amendment and not by judges. Living constitutionalism, he said, is essentially the opposite—the view that the meaning of a written constitution can and should be updated by judges to reflect the changing times and troubles and problems that every society faces. He characterized it as a judicial updating view of the Constitution rather than viewing the Constitution’s meaning as fixed and that judges are subject to that meaning as opposed to being able to determine that meaning for themselves Amy Coney Barrett on Trial (2020).
Bob Zadek framed the two philosophies as the framework for understanding the Barrett nomination, telling Barnett that the audience needed to understand the two very different interpretations of the Constitution and why it is so important to us. In the earlier episode, Zadek asked Blackman to explain the contrasting judicial philosophies because, he said, one almost can’t participate in political life in this country without understanding the operation of what has become the most important branch of our government Eight-Dimensional Chess (2020).
Blackman described the distinction in terms of what principles judges look to. He said you can look to the original meaning of the Constitution, or you can look to some sort of evolving standard of decency where we can look at what other countries in the world are doing. He called the biggest distinction between liberal and conservative judges the sort of principles they look to to decide difficult questions Eight-Dimensional Chess (2020).
How the two approaches decide a case
Barnett used the Second Amendment to illustrate the difference. An originalist, he said, would argue that the meaning of the right to keep and bear arms is the same today as it was in 1789 or 1791 when the Second Amendment was ratified, and the same as in 1868 when the 14th Amendment was ratified. He noted that people opposed to gun rights who argue the original meaning was a collective rather than an individual right are still making an originalist argument, which he called okay even though he thinks it is wrong Amy Coney Barrett on Trial (2020).
A living constitutionalist, by contrast, would treat the Second Amendment as at best a starting point of a judicial analysis or a single factor to be considered along with all other factors. Barnett said such a judge might reason that the Founders would not have imagined that weapons would become as lethal as they are, and that public safety might require strong restrictions on the right to keep and bear arms today. He added that living constitutionalists need not say what the Framers would say; they can simply say that is what we say, and that we should not be bound by the dead hand of the past Amy Coney Barrett on Trial (2020).
Barnett also named the Commerce Clause and the Necessary and Proper Clause as probably the most important issue on which the two approaches diverge, though he set it aside in favor of the easier-to-explain gun example Amy Coney Barrett on Trial (2020).
Amendment as the originalist alternative
Zadek summarized the originalist position as holding that if society feels a certain provision is wrong given life in America today, there is a mechanical way to change it—and that the wrong way to change it is to shrug it off and change it by judicial reinterpretation. Barnett agreed, noting that the Constitution has been changed 27 times and in significant ways Amy Coney Barrett on Trial (2020).
Barnett cited the 14th Amendment, which created a federal power to police states so that they would not violate the rights of their own people, a power the federal government largely lacked before 1868. He also cited the Progressive Era establishment of a power in Congress to tax incomes, which he said was done the right way through a constitutional amendment. He argued that anyone proposing a new amendment surely wants it read as it was meant to be read at the time it was enacted, asking why propose the amendment at all if judges can undo the original Constitution Amy Coney Barrett on Trial (2020).
The Slaughterhouse Cases as living constitutionalism
Barnett argued that judges in fact did undo part of the 14th Amendment. He read the Privileges or Immunities Clause—no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States—and said that because judges disagreed with the scale and scope of that change, they undid the provision five years after it was enacted in a case called the Slaughterhouse Cases. He said any lawyer will tell you that you cannot plead the Privileges or Immunities Clause today because of stare decisis and precedent which says that essentially it has no meaning. In his account, the judges restored the meaning of the Constitution before the amendment, which he called a form of living constitutionalism Amy Coney Barrett on Trial (2020).
Progressive origins
Barnett traced the concept to the turn of the 20th century, saying progressives invented the concept of a living constitution between the 19th and 20th century. Woodrow Wilson was a living constitutionalist, he said, and was quite candid about his motivations: Wilson did not like the Constitution, said we should be living under a parliamentary system, and called it a horse and buggy constitution for a modern age. Barnett said progressives viewed themselves as social Darwinists, regarding societies as organisms that evolve to a higher state, and that a constitution was needed that would allow societies to evolve. He described this as the deep underlying root of the original idea of the living constitution, and said it is what motivates progressives today—the view that we should not be bound by the dead hand of a past when we ourselves today know better Amy Coney Barrett on Trial (2020).
Zadek offered a harsher version of the same account, saying progressives reject much of America’s founding principles but cannot say so outright, and that the way to reject the Constitution without rejecting it is to minimize it and say what they meant was this today. He called this a subtle, stealthy way to fundamentally change our government while giving the appearance of doing so under the existing form of government. Barnett said he could not find any fault with that and compared it to telling a spouse you want to fundamentally transform them Amy Coney Barrett on Trial (2020).
Judicial activism and the stakes of nomination fights
In the earlier episode, Zadek advanced the argument that nominations become contentious to the extent that the stakes are high, and that the stakes rose once the Supreme Court started to become more muscular—his word—beginning perhaps with the Warren Court, when it began to invite itself to the party on sexual behavior and on economic rights. He asked whether there is a direct relationship between the power assumed by the Supreme Court and the stakes of judicial nominations, and whether the Court’s role today was the role envisioned by the founders Eight-Dimensional Chess (2020).
Blackman responded that judicial activism doesn’t really mean anything and is sort of just an attack of a decision you don’t like, adding that there are some cases where courts should be active and some where they shouldn’t, and that the challenge is deciding which is which. He said some judges are active in certain cases and others in other cases—a more liberal judge might be eager to rule in an abortion case against the state, while other judges might be eager to rule in a gun case against the state Eight-Dimensional Chess (2020).
Blackman described the model of judicial restraint associated with Robert Bork, who was nominated to the Supreme Court but wasn’t able to get a seat, and who argued that in wide fields of life the elected branch should be able to do whatever they want. Blackman said the more modern approach is not simply deferring reflexively but trying to decide whether the government’s stated rationale is actually the reason why they’re acting. He gave as an example a case from that year in which the city of Philadelphia told a Catholic adoption agency that it had to let gay parents adopt children, and the agency refused; the city said it needed to enforce its non-discrimination policy, but Blackman said there is some evidence the city was actually hostile to Catholicism. He said both conservatives and liberals have seized upon this approach, and predicted that with a six-member conservative majority you may see a lot more flexing Eight-Dimensional Chess (2020).
Across episodes: no development
Both episodes treat the living constitution as the same fixed target—a judicial-updating theory opposed to originalism—with no change in the argument between the September 2020 Blackman conversation and the October 2020 Barnett conversation; Blackman supplies the judicial-philosophy and judicial-activism framing, while Barnett supplies the definition, the Second Amendment illustration, the Slaughterhouse account and the Progressive origins.
What the sources do not cover
The excerpts do not state the holding or amendment basis of the Slaughterhouse Cases beyond Barnett’s account of the Privileges or Immunities Clause, nor do they identify the Philadelphia adoption case by name or citation. They do not give the outcome of Amy Coney Barrett’s nomination, the date or terms of the amendments discussed beyond what the speakers say, or any living constitutionalist’s own defense of the theory in their own words. The excerpts also do not state the founding date of the program or the city in which it aired.