Only Good Constitution is a Dead Constitution
Only Good Constitution is a Dead Constitution
A Moral Foundation for Originalist Constitution
As a preliminary context, I would like to mention that I will be using the Indian constitution and United States constitution as an illustrative example to support my perspective. The examples are very general and minimal in nature to support my arguments which are mostly jurisprudential in nature. The principles discussed can be applied to various contemporary constitutional states.
The idea of a “living constitution” comes from the idea that the rules and ideals written into a country's constitution shouldn't be set in stone, but should be able to change as society's needs and goals change. It understands that society is not set and that moral thinking and social growth change over time. Proponents of a “living constitution” argue that the people who wrote the original constitution, no matter how smart or forward-thinking they were, could not have known about all the problems, changes, and innovations that would happen in the future. They agree that constitutional principles should be interpreted and used in a way that changes with the times and places where they are used. They say that morals and social ideals are not set, but can change and grow over time. By changing the constitution to represent the changing moral agreement, a “living” constitution helps build a society that is more just, fair, and responsive to the needs of its people.
When I use the term “Dead Constitution,” I am referring to an approach to constitutional interpretation that gives primacy to the original meaning of the constitution. This phrase, famously used by Justice Antonin Scalia, succinctly captures his methodology and perspective. Justice Scalia was an advocate of originalism, arguing for an adherence to the understanding of the constitution at the time it was drafted or amended. From this standpoint, the constitution is viewed as an document, impervious to evolving societal values or contemporary developments and something that can only be changed through the procedure in the constitution. Proponents of the “Dead Constitution” approach assert that it promotes legal stability and predictability by preventing judges from injecting personal biases into their interpretation. By faithfully adhering to the original meaning, they argue, we can preserve the democratic process and honor the intentions of the framers.
Originalists provide a straightforward line of reasoning in their chain of logical arguments. When the people voted on the constitution, that moment in time became the defining moment of its meaning. If there is to be any modification to the constitution, it must be done so by means of an amendment, which will result in the creation of a new meaning that will take the place of the previous one. The Constitution though needs to adapt to the newer changes in the society, it cannot be reinterpreted to create a wholly new rights and obligations upon people according to the whims and fancies of the judges. For instance, the right to free expression that is outlined in the Constitution will extend to include more modern forms of communication and speech. However, The right to abortion, for example, on the other hand, is not something that is even mentioned at all in the constitution. In the event that such a need arises for the society, the society is free to put in any laws it deems necessary to govern itself. An amendment to the Constitution is not even necessary as the constitution does not even forbid this possibility.
Why the need for Normative arguments?
There has been a long-standing argument against originalism that it lacks sufficient normative backing. The most current and damning of these is the Natural Law criticism of originalism that has been gaining traction lately and is based on the writings of Adrian Vermeule. Prof. Hadley Arkes strongly criticizing in a recent article said that originalism is “morally empty jurisprudence”.
For what they celebrates is a style of jurisprudence, so serene now in its detachment from moral judgment, that it is proud to have nothing to say, as a system of jurisprudence, on the things that are right or wrong, just or unjust.
Legal conservatives are attempting to distance themselves from the constrained approach to jurisprudence as it may not be providing satisfactory results, and alternative theories, such as those that were put forward by Vermeule, are promising better results. They claim that originalism should be abandoned since it is essentially incompatible with natural law. Therefore, it is pertinent to create a natural law foundation for originalism based on the ideas of legitimate authority and the recognition of such authority in the people as the sovereign.
Many originalists scholars and judges have avoided making moral arguments to broaden the appeal of originalism. As any moral arguments tend to become controversial and creates a scenario of ought to be done. Constitutional methods govern constitutional issues and conflicts. Constitutional adjudication would be worthless if there is no moral imperative for adhering to the Constitution. Thus, to resolve constitutional problems, we must first show why we ought to adhere to the Constitution before showing how to interpret it to retain results.
Some theories argue that federal judges have an ethical obligation to uphold the Constitution, regardless of its rightness or wrongness. They suggest that taking the oath of office creates this duty, approaching it from a positivist perspective. However, if taking such an oath entails a moral duty, then there is also a moral responsibility to assess the Constitution's moral standing before taking and upholding the oath. Thus, taking the oath necessitates a moral evaluation of the Constitution, and one cannot avoid moral scrutiny by relying solely on the obligatory oath.
Establishing the moral legitimacy of the Constitution is crucial because it directly affects one's constitutional methodology or theory. Therefore, Constitutional theories ultimately rest on moral arguments, and a general moral framework is needed to make these moral and normative arguments. As stated previously, I prefer to ground myself in the traditions of Natural Law, as the most prominent and current critics of Originalism are proponents of Natural law-based theories.
Hence, it is necessary to establish the moral compatibility of the Constitution with natural law principles and for this the writings of St. Thomas Aquinas comes very handy, especially his writings on what is Just Law and how it is derived.
Thomism and Just Law
Most of the fundamentals on Natural Law is derived from his writings in Summa Theologica. According to Aquinas, the fairness and moral validity of a law depend on its substantive content and the authority behind it.
Firstly, A just law serves the common good and imposes proportional obligations on everyone. This is concerned with substantive fairness.
Secondly, the law must be enacted by a legitimate authority, as it becomes unjust when someone exceeds their power. This is concerned with procedural fairness.
Aquinas contends in Summa Theologica I-II, Q. 90 art. 3. 1271 that:
A law is unjust when a man makes a law that goes beyond the power and authority committed to him.
It is easier to start with the assumption that the Constitution generally meets the criteria of substantive justice but focuses on the question of authority, which is a significant point of contention in assessing its moral legitimacy. Understanding the moral foundation of authority can help identify the proper constitutional methodology. This view eliminates methodology that surpasses authority. According to natural law, an unauthorised legislation is not morally obligatory, un-authorized means law made by someone who does not have the normative authority to make such laws. Thus, determining the authorized lawmaker or legislator is vital.
Any methodology or theory which prioritizes only substantive fairness or prioritizes substantive fairness over the concept of legitimate authority in natural law, would not align with Aquinas's view of a just legal system. However, this does not simply mean that courts should uphold legislation that are contravening Natural law. It emphasises that ‘judges’ cannot exceed their power when presented with an unfair legislation as it is not in their authority to do so. The paper addresses the fact that natural law critics and supporters of originalism have neglected the condition of legitimate lawmaking authority inside a political regime.
Finding that legitimate authority
The next phase of this article is to defend legitimate political authority. Political authority denotes the highest authority in a particular society. A legitimate political authority refers to an authority that not only has factual support for its power but also ethical or moral justification for its existence. In simpler terms, it means that the authority not only has the necessary resources and capabilities to govern, but it also has the moral right to do so. However, before finding the legitimate authority, it important and very necessary to understand what exactly does authority mean.
In this scenario, “authority” means someone or something that is able to give an “exclusionary reason”. This means having a reason that overrides or dismisses other valid and relevant reasons that would have otherwise justified an alternative action. However, in order to differentiate between different circumstances, the concept of authority needs more clarification. For example, both an elected legislator demanding taxes and a gunman demanding money may claim authority, but clearly there is a difference between them. The emphasis here is in something called legitimate authority or authority that is justifiable. More importantly, I am concerned with legitimate political authority or authority which has the power to create and enforce laws and settle legal disputes, assumption being that laws are substantively fair.
The Moral Basis for Authority
The moral basis for authority rests on the understanding that human beings are inherently social creatures. Being rational beings, it is in our nature to live in society. There are various arguments supporting this claim within the natural law tradition. One argument, famously put forth by Aristotle, emphasizes that living in society is essential for our pursuit of virtues and flourishing. Another argument highlights that certain intrinsic goods, such as friendship, can only be realized within a social context.
Being in a society is not merely a means to an end, but a moral imperative based on our rational obligations. In essence, being social is an inherent aspect of our human nature, grounded in moral necessity rather than blind compulsion. Humans ought to exist in a society rather than being forced to live in one, and therefore by nature human beings have a normative obligation to be social.
If human social nature depends on cooperation for the achievement of certain good, then society's primary function must be to foster the conditions and circumstances under which all members may realise those goods for themselves. Without such conditions, there would be no rational basis for communal living. The conditions necessary for achieving the goods within society are commonly referred to as the “common good” of society. In other words, the common good ensures that each member of society has the necessary conditions to pursue their own good.
Three clarifications are necessary to this idea of common good:
Firstly, The common good is the main and foremost concern for a community's political well-being.
Secondly, It has different interpretations: as a means to individual well-being (instrumental view), the collective achievement of individual goods (aggregative view), or the good of the community as a whole (distinctive view). I assume the instrumental view, however, other views disagree on whether this is sufficient.
Thirdly, “own good” does not mean subjective or individualistic good. Human “good” is objective and rational in the natural law tradition, as they are based on reason. But, circumstances influences how people seek such objective good.
Need for Common Good and Need for Authority
The conditions necessary for the achievement of the common good and the means for creating those conditions can be deduced from natural law. As they are deduced through reason, they are universal in nature and applicable to all societies. For example, to preserve the good of life, it is essential that members of society refrain from killings. As a means of preserving life in an imperfect world, this necessitates the existence of laws that prohibit killings.
However, certain conditions for achieving the good are not strictly determined by reason and it varies depending on circumstances. This is particularly true for the means of attaining desirable conditions. The process of knowing what these conditions are and how to achieve them is known as determination.
A classic example of determination is the choice of which side of the road to drive on to avoid a crash. Reason alone doesn't provide a clear answer, but for the sake of safety and avoiding accidents, a society must choose a side. Regardless of which side is chosen, there will always be a need for society-wide decisions to achieve the common good. These decisions may not always be rationally determined, leading to disagreements. This uncertainty highlights the importance of authority in resolving such issues. Even in a society of rational and virtuous individuals, there would still be a need for society-wide decisions on how to accomplish the common good.
At the very least, authority is required whenever there is a place for indeterminacy. Because, individuals may not comprehend or follow the conditions for achieving the good even though they are mandated by reason and they may fundamentally disagree on the conditions of common good itself. To secure conformity with the conditions required for human flourishing and common good, the use of force must replace reason in such situations.
Through this line of reasoning, it is established that there is a need for authority, both in theory, because it's needed even in a society of fully rational creatures, and in real practice, because people aren't always reasonable.
This reasoning for authority puts important limits on how far an authority can go. Legitimate authority is limited by the need for it to serve the common good. It can't go beyond what is needed for the common good, and it can't act against it. Since the common good is an objective concept, there are objective limits to what a legitimate authority can do. Consequently, in the natural law tradition, there is support for the idea that if a ruler becomes a tyrant and moves against the common good, the people have the right to rid themselves of that ruler.
Implications of Authority
Being social animals, human beings benefit from living in society, which implies the necessity of authority. Authority is a natural consequence of our social nature. It would be illogical for someone to be part of a society and object to political authority, as it is inherent in being a member of that society. Similarly, political authority cannot exist outside of society since there would be no purpose for it.
Political authority, which involves resolving disputes, creating and enforcing laws that are morally binding, emerges when a society is formed. It is not something possessed by individuals outside of society, but rather vested in them once they become part of society. Since living in society is our natural state, living under political authority is also natural. This is has been established by a series of normative arguments.
In summary, the humans ought to obey legitimate authority, because it is necessary for establishing the conditions that enables them to pursue the goods that humans ought to seek based on our very nature as human beings.
Moral Need for Popular Sovereignty
Till now, It is established that authority plays a crucial role in human society and it necessary to have authority for us humans. However, the important question remains: Who exactly holds this authority and where can we find them? The short answer to this question are the people. But, let me expand on this answer.
As, said earlier, the legitimate political authority refers to an authority that not only has positivistic or factual support for its power but also normative justification for its existence. In the context of political authority, there is a concept called popular sovereignty, which refers to the belief that this legitimate political authority ultimately rests with the people of a given society. Let me put forth three inter-connected premises or postulations:
First, the concept of political authority exists to achieve the common good of the society. Its existence is solely justified by its ability to facilitate the realisation of the common good and does not have any other purpose.
Second, the responsibility for achieving the common good rests with all members of society, as it is crucial for their own individual well-being to achieve common good too.
Third, there should be an alignment between the purpose and the authority. This means that the entity responsible for a specific purpose should have the necessary authority to direct and govern the actions required to achieve that purpose. It emphasizes the alignment of responsibility and authority based on Natural Law, ensuring that those accountable for the fulfilment of a particular objective have the right and competence to exercise control over the means and actions necessary for its successful fulfilment.
Based on these three premises, we can draw the conclusion that as the achievement of common good is the purpose of all individuals within a society, it logically follows that the political authority responsible for shaping and guiding actions towards the common good should ultimately reside with the entire community or a representative acting on their behalf. This is because they are the ones who bear the responsibility of pursuing the common good.
Competence for Holding Authority?
A common question which arises when deciding who should be given authority: Why not give it to the most competent individuals?
The natural law grants political authority to the entire people rather than specific individuals who are most capable of pursuing the common good. Despite the practical considerations of skill and effectiveness, if the purpose of political authority is to achieve the common good, it is vested in the collective rather than a select few. This may seem somewhat dubious, but the problem with this line of reasoning is that it conflates responsibility with competence.
It is crucial to differentiate between responsibility and competence when discussing political authority. While some individuals may be more skilled or capable of achieving a specific goal, authority is granted to those who hold the responsibility for achieving that goal. The allocation of authority is not altered by the fact that others may be more competent.
Take, for example, the authority of parents over their children. This authority exists because it is necessary for the well-being of the family, regardless of the individual capabilities of the parents. Even if one parent is wiser or more virtuous than the other, both parents have parental authority because they share the responsibility for the family's welfare. Authority is not based on individual competence but on the shared responsibility for the common good. Similarly, in political authority, the people are entrusted with the responsibility for the common good and therefore possess political authority, even if it is wise for them to delegate its exercise to those more capable.
Transmitting Authority
In political governance, the transmission of authority is crucial. Initially, authority resides with the people who establish a government of their choice. Due to practical challenges with direct democracy, authority is delegated to a few governing personnel to ensure effective governance and the common good is achieved. This delegation involves transferring executive, legislative, and judicial powers to the government while retaining the power to constitute it.
However, the people retain the power to alter or abolish the government in extreme cases where the common good is severely compromised. This is supported by the writings of Thomas Aquinas and forms the fundamentals of Natural law traditions. It also needs to be remembered that revolutions and drastic changes in government can often have detrimental effects on the common good.
When transmitting their authority, the people have a dual responsibility: to establish an effective government capable of exercising power and to prevent its abuse. The choice of government structure is flexible as long as it promotes the common good of that particular society. Popular sovereignty means ultimate civil authority rests with the people, without specifying a particular government structure.
Based on the preceding explanation, a valid conclusion can be drawn: the inherent political authority lies with the people, thereby establishing the moral imperative of popular sovereignty.
Moral Backing for Originalism
Now we have reached the crux of the article's title, delving into why originalism or a “dead” constitution is a morally sound approach to interpreting the constitution.
We have established till now that, living in society is crucial for human well-being and the pursuit of the common good. Society requires political authority, which is held by the people through popular sovereignty. In countries like the United States and India, the people have delegated authority to designated governing personnel through the Constitution. As a law enacted by a legitimate authority and substantively fair the Constitution is presumed to be morally binding and there is a moral obligation to adhere to the constitution.
Now, I will focuses on presenting the central argument for why originalism is a morally sound methodology. It addresses two key aspects:
The impact of the moral authority of the Constitution on constitutional methodology. This means examining how the Constitution's moral authority influences the approach taken in interpreting and applying its principles.
The challenge that arises when applying constitutional methodology, particularly when following the original meaning of the Constitution leads to outcomes that conflict with principles of natural law.
This highlights the inherent dilemma faced by the courts and judges in various such situations and the real need to navigate this tension effectively. This predicament will be there despite the assumption that the Constitution, in its general nature, is substantively fair and carries moral obligations.
Morality in Originalist Methodology
Originalism is a constitutional interpretive approach that follows directly from the concept of popular sovereignty. Popular sovereignty means that ultimate political authority resides in the people themselves. In order to secure the common good, the people delegate a portion of their authority to a distinct governing body, which is established by the Constitution. The moral obligation to advance the common good also entails a corresponding obligation to preserve the legitimate authority which rests with the people or the popular sovereignty.
This means that the authority of the people, as expressed through the Constitution, should be upheld and respected. In the U.S and Indian context, preserving the authority of the people requires interpreting the Constitution based on the original understanding of its provisions at the time they were adopted. This approach ensures that the people's commands, as expressed in the Constitution, are given effect as they were intended by the framers and understood by the ratifying public.
If the governing personnel or interpreters of the Constitution could deviate from the original meaning of the people's commands, they would have the power to alter or undermine the means through which the common good is pursued. This would effectively negate the authority of the people and their chosen mechanisms for achieving the common good. Essentially a rejection of the will of the people i.e., the ultimate political authority. This deviation from the original meaning of the Constitution would sever the connection between the text and the legal authority that enacted it. This is something that Steve Smith calls as “separation error”.
A mode of interpretation that severs the connection between the text and the legal authority that enacted or promulgated that text will in effect deprive that designated legal authority of actual lawmaking authority.
By disconnecting the text from its original context and intent, the designated legal authority would be deprived of its actual lawmaking authority. Therefore, adhering to originalism ensures that the people's authority is preserved and respected, preventing interpretations that could potentially undermine their ability to pursue the common good through the mechanisms established in the Constitution.
Conflict of Originalism and Natural Law
It is acknowledged that original meaning may not align with Natural law sometimes substantively. When the original meaning of the Constitution conflicts with the common good or the natural law in specific cases, the proper response of judges within our system is a subject of debate. Some oppose originalism because natural law should trump positive law. Some believe that judges should not examine natural law because it might lead to judicial abuse.
Both viewpoints present real problems, such as the unintended adoption of positivism and moral relativism or judges overstepping their power and this leading to abuse of judicial power. The relationship between the common good and the limits on judicial authority involves considering the positions of an ordinary citizen and a judge when faced with an unjust law. This needs to take into account the different capacities in which individuals act and the necessary separation in such capacities.
When evaluating the impact of unjust legislation on a private person, the methodology is straightforward. A person is not bound by a political authority that acts against the common good. This explanation stems from the belief that any law that is substantively unfair or goes against the common good cannot be considered just, as it lacks legitimate authority. However, context matters, as there are instances where disobeying an unjust rule may have negative consequences for society as a whole. There are laws that seem unjust in isolation but are considered beneficial for the common good based on societal consensus and differing explanations of common good, such as affirmative action laws.
The role of a judge differs from that of an ordinary citizen. While an ordinary citizen can refuse to obey an unjust law, a judge operates in an official capacity with specific powers granted by the people. If a judge renders judgment in defiance of an unjust positive law, it would go beyond a mere disobedience. The judge would be exceeding their authority and engaging in a form of betrayal or usurpation which results in undermining the people's authority as sovereign. Unlike an ordinary citizen, whose defiance of an unjust law may or may not harm the common good, a judge who usurps power directly harms the common good.
This action of giving a moral ruling through immoral procedure (Illegitimate authority) would be based on the belief that the ends justify the means. This reflects a consequentialist approach that opposes natural law and goes into utilitarianism which is fraught with dangerous normative consequences if adopted as a moral stance.
Is it a Conflict?
The failure to recognize the distinction between the private person and the judge regarding the common good leads to the misconception that “originalism is a positivist enterprise” because it does not guarantee that the original understanding will always align with the common good.
This assertion conflates two distinct issues:
Firstly, the requirement for positive law to be consistent with the natural law to be considered legitimate “law,”.
Secondly, the legitimate authority of judges in a constitutional system to disregard the original meaning when it conflicts with the natural law.
These two positions do not contradict each other logically and It is possible to answer “yes” to the question of whether positive law must align with the natural law to be considered legitimate, while simultaneously answering “no” to the question of whether judges have the authority to disregard the original meaning when it conflicts with the natural law. The moral properties of a legal enactment are separate from the morality of jurisdictional authority.
Just as it is possible to believe that a statute is unconstitutional while acknowledging that a court lacks jurisdiction to hear a case challenging the statute (refer to Thomas’ opinion in California v. Texas), it is also possible to believe that the original meaning is not morally binding due to its conflict with the natural law, while recognizing that a court lacks the authority to declare it as such. Failing to differentiate between these distinct issues leads to confusion and impairs meaningful discourse on the matter.
There are methods within the Constitution itself to address and repair flaws when the original interpretation of the Constitution leads to consequences that contravene the natural law. These tools include presidential action, legislative action, or constitutional amendment, ensuring the system can resolve disputes and maintain its integrity. This means that the Constitution is built to resolve disputes between positive law and the natural law, increasing the likelihood that the constitutional system would be maintained rather than abandoned.
These are some closing thoughts and observations.
First, I've been meaning to write this piece for about two years, but I just haven't been able to carve out the time to organise my ideas and arguments. This is an edited and condensed version of a paper I sent in for my Jurisprudence course just this summer.
Secondly, I have always liked to be in meaningful arguments with others. It is a fulfilling experience for me, particularly when discussing topics like this one. This particular subject holds a deep ideological significance for me (You can ask my friends). So, I would really appreciate if all of the readers of this article would share their thoughts and critiques. I don't care how harsh it is. I’ll be writing a second article discussing all their arguments and also countering some classical arguments against Originalism in a week or two.
Third, the works of various constitutional scholars has been condensed down into this one single article and I really want to credit them, as I have not cited everything. So, these are some of the people: Lawrence Solum, Steven D. Smith, Jeffrey Pojanowski, Joel Alicea, and John O. McGinnis. Additionally, if you require the sources for any specific claims made in the article, please feel free to ask, and I will make an effort to provide them to you.
Fourth, Sorry there haven't been any new articles recently. Both Anish and I have been occupied with our academics this semester, but this project is important to us and we don't want to let it fade away. So, stay tuned for some more articles.
Thank You...
