The sedimentary Constitution.

• Author: Friedman, Barry
• Position: Constitution's present meaning depends on past

INTRODUCTION

The function of the Justices ... is to immerse themselves in the tradition of our society and of kindred societies that have gone before, in history and in the sediment of history which is law.... The Justices will then be fit to extract "fundamental presuppositions" from their deepest selves, ... in fact from the evolving morality of our tradition.

Alexander Bickel(1)

Sir Charles Lyell's Principles of Geology(2) forever altered the western world's understanding of the interrelation between past and present. As revolutionary in its time as Charles Darwin's On the Origin of Species,(3) Lyell's treatise stretched the Earth's history from biblical millennia into geologic eons.(4) Answering those who claimed that geologic formations were shaped primarily by unusually violent, catastrophic events of the past, Lyell demonstrated that the present shape of the earth was largely the result of many powerful forces operating very slowly over time.(5) The planet's topography, Lyell explained, was the result of the daily operation of wind, rain, erosion, and sedimentation, as well as the usually imperceptible movement of land masses over millions of years.(6) To understand the present, therefore, one must trace the evolution of the past, including not only its wrenching, transformative events, but also the slow process of gradual change.

As it is with geology, so it is with nations. Each is "the result of a long succession of events," "of many antecedent changes, some extremely remote and others recent, some gradual, others sudden and violent."(7) These events, gradual and sudden, remote and recent, comprise the history that shapes a nation. Those who want a deeper understanding of what constitutes a nation in the present must therefore study that nation's entire past.

There has been a great deal of talk lately in the circles of constitutional law and theory about "fidelity" to the Constitution.(8) The question seems to be whether it is sensible, or even possible, to remain faithful to a constitution written more than 200 years ago and amended only sporadically thereafter.(9) This question is not unique to our age. Until the latter half of the nineteenth century, constitutional theory and practice sought a relative continuity with the Founders' design. Since that time, however, as the nation has experienced constant change, a different strain of thought--the idea of a "living Constitution," one that is interpreted as evolving to keep pace with current events--has competed with originalism. The question, raised persistently as we move further and further from the time of the Founding, is whether we realistically can, or should, continue to remain faithful to the Founders' written Constitution.

The very discussion of fidelity reveals an odd mindset about American constitutionalism, one that is discontinuous when it comes to constitutional history. To listen to discussions of fidelity, one cannot help but conjure up an image of the United States poised at the turn of another century, yet tethered directly to the world of the 1780s. It is a weary fact of constitutional interpretation and constitutional theory that when lawyers, judges, and legal academics discuss our historical Constitution, they usually are referring to a Constitution written in 1787 and amended formally on occasions thereafter.(10) As Larry Kramer recently wrote: "What ... scholars all share in common, ... is a belief that when we ask about the role of history in constitutional interpretation we are asking about the Founding.... [C]onstitutional theory can fairly be described as `Founding obsessed' in its use of history."(11)

The obsession with original meaning, as Kramer pointed out,(12) almost entirely ignores the intervening 200 years of constitutional history. By the same token, it is precisely because our historical understanding of the Constitution is so predominantly originalist that when the tension between founding intentions and present needs becomes too sharp, the very same lawyers, judges, and academics flee history in favor of the "living Constitution." Time and again, judges have jettisoned history when founding intentions seemed inconsistent with present needs and understandings. Scholars have done the same, urging--particularly in times of rapid change or pressing need--that we abandon original views and interpret the Constitution to address the problems of the present day world.(13)

This Article challenges common thinking about the use of history in constitutional interpretation.(14) It seeks to replace the apparent choice between anachronistic originalism or non-historical living constitutionalism with an approach that takes all of our constitutional history into account. This Article makes a simple claim: history is essential to interpretation of the Constitution, but the relevant history is not just that of the Founding, it is that of all American constitutional history.(15) Only by taking all of that history into account is it possible to arrive at an understanding of today's constitutional commitments.

This claim about historical interpretation of the Constitution rests on a very different notion of fidelity, one of fidelity to the Constitution itself, rather than to its Framers. The United States Constitution is not the Constitution of 1787. It is always new, and yet always old, endlessly worked and reworked since the time of the Founding.(16) The Founders' Constitution has been layered over constantly with popular understandings--some consistent with Founding-era notions and some that deviate in substantial ways. Some of these practices are inscribed in text; many are not. They are found, rather, in the decisions of the Supreme Court, in statutory law, in the actions of our governmental bodies, in the works of our forebearers, and the common practices of our people--in all of the sources that reveal the deeper commitments that we share. As time has passed, these decisions, these laws, these practices, these commitments have all turned to rock beneath us, hardened by the passage of time. This sedimentary rock on which we stand is our Constitution.

Although few might quibble with this description of constitutional evolution, common reliance on history to interpret the Constitution is seriously inconsistent with it. Time and again, we mine the events of 1787 as though they are determinative. At the same time, we pay (or profess to pay) little, if any, attention to the intervening 200 years of constitutional history. We look regularly for answers at the base of our mountain, when they are there in the soil and silt at our feet. Our understanding of the Constitution is anachronistic, cheating the trials and successes of our many constitutional ancestors. It is only because of this (mis)understanding that we can even ask the question of fidelity.

True fidelity to the Constitution requires that we be faithful to what history reveals as this generation's deepest, most enduring commitments, not just those of the founding generation. To be sure, there often may be nosharp separation between the two. It is the very nature of history that the Founders' commitments have been passed along to us through the generations. It is also true, however, that those commitments have been slowly, but perceptibly, altered in some critical ways. If fidelity is our goal, then it is to all of our constitutional history--and not just the Founding--that we must be faithful. The role of the constitutional interpreter is to reconcile our deepest constitutional commitments, revealed by all of our constitutional history, with today's preferences.

Similarly, for the very reason that constitutional values are both passed from generation to generation and gradually altered as they are passed, the true nature of our constitutional commitments will be found far closer to the surface of our constitutional history than might be imagined. Each generation's constitutionalism is an act of both fidelity and creation. The Constitution that is passed on by each generation is the product of both that generation's fidelity to past commitments and its application of those commitments to new problems. Because deeply held constitutional commitments are passed from generation to generation (albeit slowly altered while they are passed), today's constitutional interpreter is, in most cases, not going to have to mine far below the surface to identify enduring commitments. It is only in unsettled times, times of rapid change, or when our commitments have become uncertain, that we may have to return to earlier eras to find our way.

This Article offers an interpretive methodology to resolve the tension between originalism and living constitutionalism. It argues for grounding constitutional interpretation in all of our constitutional history, rather than in the history of the Founding alone. Part I is a historiography of the use of history in constitutional interpretation, exploring the shifting of views between originalism and living constitutionalism. When constitutional interpreters turn to history, they often turn to originalist history, seeking answers to constitutional questions in the Founders' intentions. As time has passed since the Founding, however, it has become more difficult to bring Founding-era solutions to bear on modern problems. Thus, at other times, interpreters eschew history altogether, focusing instead on the "living Constitution." Part I also explains that when lawyers, judges, and legal academics turn to originalist history, scholars of history regularly rise up to criticize the law's use of history as "law office history" or history by "judicial flat." This Part concludes by observing how, in recent times, the twin problems of fidelity and history have become acute. While the Supreme Court continues to resolve very modern constitutional problems with justifications purportedly drawn from increasingly remote and distant founding moments...