Transformation of Constitutional Law

Author:Morton J. Horwitz

Page 2712

Over the past two hundred years, American CONSTITUTIONAL INTERPRETATION has undergone a transformation from its early static and TEXTUALIST tradition to a modern, dynamic approach wherein a " LIVING CONSTITUTION " changes to accommodate the needs of the times. Two pivotal periods in constitutional thought have catalyzed this shift away from ORIGINALISM, initially starting with the Progressive reaction to the excesses of the Lochner Court, and later continuing with the WARREN COURT and its broad constitutional reforms.

For the first hundred years, American constitutional interpretation firmly adhered to what historian Michael Kammen describes as a Newtonian conception of the Constitution. Constitutional concepts and principles were static and unchanging, akin to the timeless scientific truths of Newtonian mechanics. Indeed, so firmly entrenched was this originalist approach to judicial thinking that the Supreme Court all but ignored Chief Justice JOHN MARSHALL'S statement in MCCULLOCH V. MARYLAND (1819) that "[the] constitution was intended to endure for ages to come, and, consequently, to be adapted to the various crises of human affairs." The passage was cited only once in a Court opinion during the entire nineteenth century, and only a total of six times by 1945.

The dominance of literal constitutional interpretation was not entirely surprising given the strong influence of Protestant thought early in American history. Protestants rejected the priestly interpretations of the Bible espoused by Catholics, supporting instead textualist interpretations that were more freely available to laypersons. Indeed, at the time of the writing of the Constitution, the only established competitor to originalism was the COMMON LAW methodology, which by the early eighteenth century had been recognized as changing and evolutionary. Nonetheless, despite the Framers' acceptance of the dynamic nature of the common law, they largely held to the originalist view. For instance, when constructing the Virginia code, THOMAS JEFFERSON would entertain only ancient, "timeless" English common law rules, excluding the "uncertain" reforms proffered in the then-recent common law jurisprudence of Lord Mansfield.

The originalist approach had internal conflicts and difficulties. One problem was the degree of literalness to be applied. Were judges to interpret the Constitution on its face, considering only express terms, or were they to consider historical context and implied meaning as well? The former, the plain meaning approach, faced semiotic difficulties, since as JAMES MADISON suggested, "no language is so copious as to supply words and phrases for every complex idea.?" The preference for the letter of the Constitution over the spirit also clashed with early Christian foundations, which militated against extreme literalism. "[F]or the letter killeth, but the spirit giveth life" (2 Corinthians 3:6). The historical context approach suffered its own interpretative problems, for the Constitution and its amendments had been adopted through a process of debate, representing a multitude of often contradictory intentions. Intent was not just difficult to discover; often-times a unified intent did not even exist. These deficiencies led Justice WILLIAM J. BRENNAN, JR. , later to criticize historical analysis as "arrogance cloaked as humility." It was plainly arrogant, if not unbelievable, to think that a court could accurately guess the intent of the Framers decades or centuries later.

The high-water mark for a static conception of constitutional meaning centered around LOCHNER V. NEW YORK (1905), where the Court struck down a maximum hour law for bakers as a violation of FREEDOM OF CONTRACT. Lochner 's holding, however, demonstrated the great deficiency of static, originalist constitutional interpretation; it was simply incapable of adapting to a changing world. Abstract legal concepts such as freedom of contract had grown out of touch with the practical realities of an increasingly exploitative industrial society, and originalist thinking provided no easy alternative. Lochner thus...

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