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Constitutional Interpretation in Republican and Mixed Regimes

In republican constitutionalism, the people make a firm precommitment to a particular form of governance. Thus, they pass a constitution whose provisions prohibit certain actions in later periods.  This process of self-constraint can be seen in republican terms as an exercise in popular sovereignty.  In addition, if the constitution is originally enacted under a good process, such as one having relatively stringent supermajority rules, it is likely to improve the welfare of the people over the course of the nation’s history.   The distinctive interpretative method of republican constitutionalism is originalism:  the meaning chosen by the people when the constitution is passed binds the people at later times.

In contrast, living constitutionalism is the distinctive interpretive method of the constitution of a mixed regime, which includes an aristocratic element. Support for a mixed regime can be traced to Aristotle, and, in modern constitutionalism, the aristocratic element is supplied by the judiciary, whose current judgments constrain the people.

The aristocratic tenor of the judiciary is unmistakable. For instance, the current justices of the Supreme Court were all educated at either Harvard or Yale Law School.  They are all upper middle class lawyers, the large majority of whom are multimillionaires. Our aristocracy is the well-off cognitive elite and the judiciary is part of it.  Studies have shown that the justices’ decisions–now and in the past–have tended to be disproportionately influenced by the views of their social class.

Defenders of mixed regimes have advanced many arguments in support of this form of governance: aristocrats should be given additional weight in politics either because they are wiser (an ideal argument) or because they have greater power (a realist argument). Under the first view, aristocrats provide helpful ballast to the rashness and mutability of the populace.  The constitution of a mixed regime thus provides the stabilizing social influence and protection of rights through aristocratic judgment—the same benefits that a republican constitution tries to assure through popular precommitments. While I believe that republican constitutionalism is superior in the United States, the mixed regime constitution has respectable arguments in its favor.

But, whatever the abstract virtues of a mixed regime, advocates of living constitutionalism must reconcile the aristocratic element of living constitutionalism with  the republican founding of the United States and the decided hostility to political elites throughout American history. Perhaps for this reason defenders of living constitutionalism attempt to mask its essentially aristocratic nature. For instance, they may argue that the decisions of the justices reflect the will of the people, although as Lawrence Baum and Neal Devins show, this claim is not true.

More recently defenders of living constitutionalism have tried to give it a democratic spin by arguing that constitutional decisions are the product of social movements. But social movements do not eliminate the aristocratic element of the regime of living constitutionalism.  The justices remain as gatekeepers, deciding which of the many social movements will succeed in court and which will fail. Indeed, they may even use the timing and structure of their decisions to energize particular movements, just as aristocrats of old made common cause with populist groups of their choosing.

Reader Discussion

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on October 01, 2014 at 11:12:04 am

McGinnis states this so well! Two rejoinders.

The first is the most obvious, if somewhat off-point: Even if we agree that a commitment to originalism/republicanism is the ideal, in practice it will likely be hard to distinguish from judges just doing whatever they like. This is because efforts to ascertain original intent are often indeterminate. A realist must acknowledge that judges are as likely as anyone else to project their own preferences into the minds of the Framers.

Second, arguably the weakest part of the argument favoring republicanism over aristocracy is the premise that the original constitution is NOT a product of the aristocracy in the first place. By characterizing the original constitution as a function of "popular sovereignty" but then criticizing judges as members of an aristocratic elite -- even though they are members of the same class that drafted the constitution -- McGinnis seems to flip from idealism to realism halfway through the argument. Given the extremely limited class of people who had the privilege of voting for the original constitution, this is no small oversight.

Thus, an argument for adopting a Living Constitution view is that we need contemporary aristocrats as a countervailing force to the aristocrats of old. To rely solely on the slow, laborious amendment process would be to grant the perspectives of the Founding Aristocrats too much power.

But in either event -- whether we embrace the power of contemporary aristocrats under a Living Constitution framework, or we reject it in favor of preserving the power of dead aristocrats -- as a practical matter, we're doing the bidding of aristocrats either way. The idea that "We the People" control anything in the absence of the influence of sympathetic aristocrats is largely a myth.

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nobody.really
on October 01, 2014 at 11:48:59 am

One can make a case that House, Senate, and President constituted a mixed regime, particularly when state legislatures selected Senators. As Dickinson noted in the Constitutional Conventions, states took the place of feudal domains in this mix. The regime was set by the constitution, ratified by the people. Hence, Dickinson's logic implied, and John Adams was on the same page, the people ratified a mixed regime.

The living constitution, however, is an ongoing constitutional convention perpetrated by an elite. They are trying to make the regime an aristocracy, not a mixed regime.

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Richard S
on October 01, 2014 at 12:14:02 pm

Nobody:

Good thoughts if somewhat pessimistic (probably more accurate than many would like to admit. however).

Although as you indicated with your quote in a previous post concerning a constitution providing chains against excess, Charles Beard notwithstanding, it may be argued that the Founding Aristocrats may, in fact, have stepped outside themselves and their own little interests and provided us with something of lasting value and with durable chains of restraint. (Heck, even Beard in his dotage changed his opinion.)

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gabe
on October 01, 2014 at 12:16:07 pm

Richard:

Good points>
Another take on it is this:

This was intended as a mixed regime. The House was to represent the sentiment of Paine and the Senate was to be the reflective genius of Burke!

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gabe
on October 02, 2014 at 11:11:07 am

That's roughly how John Adams saw it. President, Senate, House constitute a mixed regime.

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Richard S

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