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.