Scalia and Evolutionary Public Consensus

(By Andrew MacKie-Mason)

In an earlier blog post I proposed a way of looking at the Constitution and other laws. I called this approach "evolutionary public consensus," and described it thus:

Evolutionary public consensus mixes the idea of a living Constitution with the principles of original meaning. In order to find the correct interpretation of the Constitution we must look to how a reasonable, modern person would interpret the document.

The strongest justification for evolutionary public consensus can be found by examining the principles by which the Constitution and other old laws still bind us. In a democratic society, laws are justified because they are passed by the people or by the peoples' representatives. How, though, can this justify the continued enforcement of the Constitution? After all, it was not passed by our representatives. It was passed by a group of people, hundreds of years ago, who have no relation to us now...

What gives past laws force in a democratic society is that the modern generation has the power to change them, but has not done so. The Constitution is not a dictatorial document, because it contains provisions which allow it to be changed or "amended." By choosing not to change the law, people are implicitly affirming it...

Evolutionary public consensus would look to the development of norms of Constitutional meaning. These are not the results of polls, nor are they theories proposed by law professors. Instead, it would be based upon judges' understanding of the social, political, and legal climate of their times, looking for developing consensus of how the Constitution should be interpreted.

Josh Blackman brings us an approximate transcript of a debate between Justices Scalia and Breyer on original meaning and original intent. I think both philosophies are the wrong way of approaching law, so I won't delve into that argument. However, one thing that Justice Scalia said at the beginning of the debate struck me as quite relevant to the idea of evolutionary public consensus.

Justice Scalia: I try to tie it to the people during the founding, not the framers. It’s not about original intent but original meaning. I do so because it depends on consent, which is what people agree to on adoption.

This is exactly the wrong approach, I believe. The public understanding at the time the Constitution (or an amendment or other law) was ratified can tell us what those people were binding themselves to. Their understanding when it was implemented is what gives it authority over people at the time of ratification.

However, as we deal with older and older laws, that approach is less and less legitimate. What power did 18th century British emigrants to the New World have to bind my actions in 21st century America? I think the answer is clearly 'none.' Does that mean we have to rewrite the Constitution for every new generation? Of course not, because each generation implicitly affirms the Constitution by living under it without changing it.

The understanding subscribed to when the Constitution is reaffirmed is the understanding that should be used to determine the meaning of the text. It is the reaffirmation, not the original adoption, that can make old documents legitimately (that is, democratically) binding on a new generation.