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The Organic Law

I was a bit taken aback recently when I realized just how pervasive the organic metaphors have been and how easily they have come to mind when writing against the idea of a Living Constitution. Am I more of a Living Constitutionalist than I realized?

In a post last week, for example, I described the Living Constitution as “a different beast” than the ratified Constitution. I depicted the Living Constitution as “partially parasitic on the ratified Constitution.” And I characterized the customary-law concept of the Living Constitution as a “corrupted master concept [that] has colonized substantial segments of constitutional law in the United States.”

As Justice Scalia liked to say, the Constitution he believed in was dead, dead, dead. But while organic metaphors have contributed to much fuzzy thinking about the Constitution, reflection on such metaphors also points to the truth that our Constitution is a constitution for the living, and not only for the now-dead generations that wrote and ratified it.

The Constitution is the fundamental law that it is because of its continuing acceptance as such by those living within our constitutional culture. Working out the jurisprudential details of this acceptance can be complicated, and I do not mean to suggest that one can assess the relevant social facts in a purely descriptive, non-evaluative way, for reasons Jeff Pojanowski and I explain in Enduring Originalism. But natural lawyers and legal positivists alike acknowledge that the legal status of the ratified Constitution as our fundamental law requires ongoing acceptance by the living.

Even though we do not have a Living Constitution, then, the history of our constitutional law can accurately be conceived as a history—as Michael Stokes Paulsen and Luke Paulsen have put it—of living the Constitution. This kind of talk need not be thought to treat the ratified Constitution as anything other than the human artifact that it is. “Living the Constitution” can be analogized to things we do with other legal instruments without changing them, like performing (or breaching) contracts or complying with corporate by-laws, for example.

Images of an organic nature may be useful for identifying legal developments such as systemic maturation over time, as Alexander Hamilton referred to in Federalist No. 82. Note how the organic concept of maturation through the passage of time in the opening of that essay contrasts with the architectural concept—more fitting for an exercise of legislative will—of the erection of a new government:

The erection of a new government, whatever care or wisdom may distinguish the work, cannot fail to originate questions of intricacy and nicety; and these may, in a particular manner, be expected to flow from the establishment of a constitution founded upon the total or partial incorporation of a number of distinct sovereignties. ‘Tis time only that can mature and perfect so compound a system, can liquidate the meaning of all the parts, and can adjust them to each other in a harmonious and consistent WHOLE.

Organic-metaphor talk of “constitutional culture” and “corruption” and strategies for “the healing of what ails our constitutional law” may also be useful in thinking more holistically about a discrete topic like stare decisis in constitutional cases. For analytic purposes, it often makes good sense to think about how to deal with suspect precedents using concepts like reliance and changed law or facts, to name considerations that current doctrine makes legally relevant. But organic imagery can also be useful. What decision now will improve the health of our constitutional culture? Is the most aggressive form of treatment for a particular sickness too much for the body politic to handle safely?

Questions like these invite fairly mushy inquiries. But it is important not to overstate the precision that even more analytic-appearing inquiries elicit. With the right concept of constitutional health in place, the guidance that can be generated by thinking in these terms need be no more indeterminate than that suggested by non-organic analogues like “the gravitational force of originalism.” And the organic imagery can help capture the way in which the kinds of judgments to be made are sometimes less like those of the physicist or astronomer and more like those of the skilled physician.

Reader Discussion

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on December 23, 2016 at 12:30:06 pm

MERRY CHRISTMAS AND HAPPY HANUKAH TO ALL AT LLB!!!!!!

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gabe
on December 27, 2016 at 22:46:12 pm

It because of those like yourself, those whose belief is so fashioned and constructed that no man or woman should stray from the foundation that cannot be shook or destroyed unless we so forget and let its remembrance be no importance, did you ever think that we would be here in such a state as to have a court do this......law states that unless a person objects to the presumption that it is not in a child's best interest to give custody and full control of the child to its abductor or kidnapper and that unless those objections exist that is exactly what the court will do in the absence of an objection.....what did they say.....they said it is the court's determination, based upon someone's objection, or its absence is, to be as, a reasoning of the court?
Or its own admission to knowing the crime of kidnapping has been committed and the one who committed it is not a parent, but a stranger, whose actions are not given any excuse or reasoning, but rather is admitted to be the crime, of which, it is and as a felony, should not be excused, or never charged, but rather the evidence to its white collar hub, to wit the associated enterprise must be reviewed, and then so put down....
.But money, being its persuasive voice....one few can resist....tell me that you will continue to stand, if not more so now, for the foundations of law that must be upheld and lived for, as they are those, like yourself, which will not allow the mutations of what I just provided to you, and these are true facts as a matter of ****state law. vaguely put but true non the less.....who can say this court is of any credibility or want to have said court be the determiner of any such things....if it should specifically state its opinion is to give a child to its abductor provided no one objects, as we all know the child's best interest is not to be there.
So saying that its knowledge is that its not best to do but is going to do it just because no objection exists.
Now what .....who will review such things and how long do the children have to suffer for these money hungers? Where is my family the child asks? that mother or father they know trust and love, that which never lifted a hand against them and loved them imperfectly as we all do?
Now what good is the laws did they protect or serve ....yes but it must be the men like yourself who will fight for the truth and its applications of which the foundation's constitution so sits with it ridgid perfection so that a broken Hallelujah will find its way back to the promised land of the free. Yes please keep its nature pure or as so said Organic....thanks have a lovely new year

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julia anne soukup

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