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Living Constitutionalism on the Supreme Court’s Website

Six years ago, I wrote a post about how the Supreme Court’s website adopted the language of the Living Constitution approach.  (I had been expanding on a post by Eugene Volokh.)  It was curious that Justices Scalia and Thomas, as well as other fellow travellers of originalism, including the Chief Justice, would allow this language to continue.   At the end of the post, I wrote that “it will be interesting to see whether this is changed and if so, how long it will take.”  I just checked back to see whether there had been a change, but none has occurred.  That’s disappointing.

The website adopts many claims that are problematic from an originalist perspective.  Some of these are problematic for their substance.  Others are problematic because their connotations suggest living constitutionalism, even though they might technically be interpreted as accurate.  In both cases, a Supreme Court that was trying to be even handed between originalism and nonoriginalism would have written these claims differently.

1. First, the website writes:

This power of “judicial review” has given the Court a crucial responsibility in assuring individual rights, as well as in maintaining a “living Constitution” whose broad provisions are continually applied to complicated new situations.

This claim appears to explicitly endorse a “living Constitution.”  To be sure, the technical claim could be interpreted in a way that an originalist would endorse.  Applying a broad provision such as the Commerce Clause to transactions made over the internet would involve a new situation.  But originalists would typically not describe those as involving a living Constitution.  That term suggests creativity on the part of the justices.

2. Second, the website states that “While the function of judicial review is not explicitly provided in the Constitution, it had been anticipated before the adoption of that document.”

It is not entirely clear how to interpret this claim, but the language before and after this quote seems to suggest that the Constitution does not explicitly acknowledge judicial review.  This is very misleading.  It is true that the Constitution is not explicit about all forms of judicial review, but it does clearly indicate that there will be judicial review of state laws.  The Supremacy Clause provides:

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

The italicized language makes clear that judges are supposed to be enforcing the Constitution against laws enacted by legislatures.  Thus, the principal argument against judicial review – that the power to determine whether a law violated the Constitution in a particular case was not judicial power – is foreclosed by the text of the Constitution.  It is true that the existence of judicial review of a congressional enacted law is not unambiguously addressed by the constitutional text, but once judicial review is allowed at the state level, there is a strong argument that the judicial power includes it at the federal level as well.

3. A third problem with the website is its claim that

Chief Justice Marshall expressed the challenge which the Supreme Court faces in maintaining free government by noting: “We must never forget that it is a constitution we are expounding . . . intended to endure for ages to come, and consequently, to be adapted to the various crises of human affairs.”

This is once again a New Deal Living Constitutionalist vision of both what the Court is supposed to be doing and what Marshall was saying.  Both are in my view mistaken.  The New Deal viewed this quote as endorsing the idea that judges adapt constitutional meaning to changing circumstances and values.  But that was not Marshall’s point.  He was merely saying that the Constitution was a short document that did not have the detail of a code.

Perhaps I will check back in 6 more years to see whether the Supreme Court has changed the website.  But with a new originalist Justice, isn’t it time to adopt a more neutral description of the Court’s function?

Reader Discussion

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on June 21, 2017 at 11:53:56 am

I suspect the late and current justices you mention, along with the other sitting Justices have never contributed to or reviewed the content contained in the Supreme Court's website, but rather, it be the handy work of, shall we say, "clerks of the court" who, in exercising the wide-eyed exuberance of their unwise youth, may be excused for regurgitating the progressive pronouncements of their law professors; otherwise, they may be condemned for persisting in their insubordination.

I understand Trump suffers, at the hands of his various administrative clerks, the same exuberant exercise of contrary prerogative

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Paul Binotto
on June 21, 2017 at 12:18:17 pm

This post is a bit naïve. One would expect that the material on the SCOTUS website is put there by the court's permanent administrative staff, which may nominally report to the Chief Justice but is presumably effectively autonomous in such matters. Like the previous commenter, I doubt that any of the justices has actually read the stuff on the website, but I also doubt that the clerks of the individual justices have anything to do with it, either.

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djf
on June 21, 2017 at 13:28:39 pm

Hope springs eternal--or at least every 6 years. SCOTUS is a "living Constitution" institution and until there are regularly 6-3 and 7-2 decisions that are at least arguably "originalist"--neither their output nor their website are likely to change.

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DEREK SIMMONS
on June 21, 2017 at 17:53:08 pm

I agree that the clerks probably put this up and the Justices do not review it. But they should review it, because it is an official statement of the Supreme Court.

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Mike Rappaport
on June 21, 2017 at 19:25:07 pm

So what is the big deal - wasn't there a Justice (or two) who basically had his clerks write the opinion for his signature?

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gabe
on June 22, 2017 at 16:09:38 pm

If you mean the justices' personal clerks, I very much doubt they have anything to do with it, either.

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djf
on June 22, 2017 at 19:32:07 pm

I don't mean the personal clerks, but the administrative personnel at the court.

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Mike Rappaport
on June 23, 2017 at 19:06:01 pm

Dear Prof. Rappaport,

I was delighted to see Justice Thomas directed, in the final sentence of his dissent in MURR ET AL. v. WISCONSIN ET AL to, "See generally Rappaport, Originalism and Regulatory Takings: Why the Fifth Amendment May Not Protect Against Regulatory Takings, but the Fourteenth Amendment May, 45 San Diego L. Rev. 729 (2008) (describing the debate among scholars over those questions).

It would be very interesting if you might weigh in here on this case; dissecting the Majority and Dissenting opinions, in the context of your above cited paper.

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Paul Binotto
on June 23, 2017 at 19:40:17 pm

It is said, "the measure of a good joke is in never having to explain it", so in this respect my attempt at humor appears to have widely missed its mark. My reference to "clerks" was intended to be understood in the broader, generic use of the word, as in "administrative personnel", (i.e. petty bureaucrat), and not directed at or intended to suggest any specific action of/by any specific or set of Justice's personal clerk(s).

I agree, the Justices ought to read the contents of their site, they would likely be surprised by what they read. However, I am not all that surprised, or especially appalled, if they have not.

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Paul Binotto
on June 25, 2017 at 23:28:36 pm

Thanks for noticing that. After I have read through the case, I hope to blog about it.

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Mike Rappaport
on June 26, 2017 at 14:59:35 pm

Isn't it likely that the people on the administrative staff who write this stuff are simply reproducing, in simplified form, what they were taught in law school or graduate school, so to get a different result the personnel would have to be changed? And that these people probably have civil service protection? And that doing something about this is would probably stir up Democrats in Congress, the media, the Supreme Court bar, legal academia, and the progressive members of the Court? Even if Roberts takes notice of the website, isn't it likely that he would conclude that the headache and distraction from his real work that would result from trying to change the website would not be worthwhile (and probably would not succeed, anyway)?

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djf

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.