The interpretation of the United States’ Constitution by the Supreme Court, has truly become a newsworthy issue. In order to better understand what is at stake, a bit of background is required.
Written and consuetudinary constitutions
Written constitutions are a relatively recent phenomenon. They arose from the need to encounter adequate means of guaranteeing the rights of the citizens, and limiting the power of the rulers. This, within the context of the liberal revolutions of the eighteenth century. Up to that time, consuetudinary constitutions had prevailed. These embodied the collection of fundamental traditions, usages and principles which, taken as a whole, formed a customary constitutional law.
Typical examples of the latter were the German Constitution that remained in use until 1870, or the current English one. In his famous book The German Constitution, published in 1802, the philosopher Georg Wilhelm Friedrich Hegel argued that the ancestral norms which ruled German political and social life had become the greatest obstacle to the emergence of a modern and unified German State. In fact, when modern Germany was created in 1870, through the merging of its different kingdoms, principalities, ecclesiastical territories and independent cities, a new Constitution was written.
On its part, the English constitutional system, as the Italian political theorist Norberto Bobbio points out, is based on the premise that constitutional norms are the consequence and not the source of the rights defined and guaranteed by the courts of justice. Judicial precedents, together with a varied set of texts and acts that were never codified, are the foundation of its customary constitutional system. (Bobbio, 1999).
Nowadays, the English Constitution represents the last vestige of a customary Constitution. However, contrary to the German Constitution, which remained completely anchored in the past, the English one kept evolving.
American and French written constitutions
The 1787 American Constitution and the 1791 French Constitution represented the two earliest manifestations of written constitutional texts. They established the foundations for a tradition that would soon follow suit in different parts of the world. The fundamental reason for having a written text was that it formally proclaimed the rights and prerogatives of the ruled and the rulers. In that sense, written constitutions were born as the expression of a very concrete ideal of society. One, based on the notion that national sovereignty resided in the nation.
The 1787 American Constitution and the 1791 French one put in motion two different trails in relation to written constitutional texts. The former would remain the same with the passage of time. The latter, on the other hand, was replaced after a few years, giving rise to the notion that constitutions may change in accordance to the transformations taking place within societies.
It must be added, however, that the American Constitution did not remain petrified on time. On the contrary, it transformed itself into a sort of compromise between the English constitutional system and written constitutions. Indeed, in the United States (and besides the figure of the Constitutional Amendment), the Supreme Court and tradition have interacted with the written constitutional text.
Permanence versus replacement
In any case, of the two trails defined by the permanence of the U.S. Constitution and the replacement of the French one, the idea of the periodical substitution of constitutional texts, ended up prevailing. The notion that constitutions may be replaced, as a direct result of the evolution that societies go through, became the norm. Since societies are living, dynamic and fluid bodies, it was accepted that the fundamental law that regulates them must also change. As mentioned, French constitutional history set up the rule.
Since its first written Constitution, France has had thirteen constitutional texts. Its 1791 Constitution sought to reconcile the survival of the monarchy with the political predominance won by the bourgeoisie through the French Revolution. The last of its constitutions, the Gaullist one of 1958, established a presidential regime aimed at overcoming the flaws of its parliamentary system. Each of these thirteen texts responded to the prevailing national project of the time. That is, the set of political and social values that acted as guiding principles of the country. Principles upon which the prevailing political regime based its legitimacy. (Burdeau, 1974).
This leads us into Constitutional doctrine. According to Austrian jurist Hans Kelsen, constitutions have both a normative nature and a material one. The first emphasizes their formal and purely juridical aspect. The second puts the accent on its substantive character. That is, on the role played by the political and social forces in determining the particular set of principles that give life to the constitutional order. (Vinx, 2021).
Pure life
An example of the material aspect of constitutions is reflected in an address given by José Ortega y Gasset before the Constitutional Courts of Spain in September 1931. As a member of the constituent assembly in charge of drafting the republican Constitution called to replace the monarchical one, the famous philosopher gave a speech mentioning the fundamental traits that had to be incorporated into the new text. His discourse ended with the following admonition: “If this is not done, the Constitution, which should be pure life, living and fully-active, will drag along corpse after corpse and be burdened with the skeleton of passed history”. (Ortega y Gasset, 1974, p. 56).
It is precisely this idea that constitutions should be “pure life, living and fully-active” which expresses the role played by the prevailing national projects. By virtue of them, after the First World War constitutional preambles were generalized. Through these preambles, the prevailing political and social principles that inspired the constitutional text were formally expressed within it. In other words, instead of keeping within a neutral and timeless context, constitutional law accepted the idea that states reinvented themselves periodically.
America’s Constitution comparative advantage
However, extremes are always pernicious. As questionable can be to tie up the functioning of State and society to the corpses of times elapsed, than to make it hostage to the political inclinations of the regime of the day. It is precisely there, where the American Constitution enjoyed a comparative advantage, presenting itself halfway between the extremes. Nor anchored in the past, nor dependent on the whims of an emerging regime.
Indeed, the costume made for the child that the United States was in 1787, has been able to adapt to the body of the giant that it has become today. The constitutional text elaborated to rule the institutional life of the thirteen agricultural colonies that had emerged into independence eleven years earlier, has remained in force until our days. An impressive feat, from all points of view. How to explain this remarkable success? The so-called living Constitution theory may provide the answer.
In David A. Strauss’ clear words: “A living Constitution is one that evolves, changes over time, and adapts to new circumstances, without being formally amended (…) The nation has grown in territory and its population has multiplied several times over. Technology has changed, the international situation has changed, the economy has changed, social mores have changed, all in ways that no one could have foreseen when the Constitution was drafted. So, it seems inevitable that the Constitution will change too (…) On the other hand (…) The Constitution is supposed to be a rock-solid foundation, the embodiment of our most fundamental principles-that’s the whole idea of having a Constitution (…) So it seems we want to have a Constitution that is both living, adapting, and changing and, simultaneously, invincibly stable and impervious to human manipulation. How can we escape this predicament? The good news is that we have mostly escaped it, albeit unselfconsciously. Our constitutional system (…) has tapped into an ancient source of law. That ancient kind of law is common law. The common law is a system built not on an authoritative, foundational, quasi-sacred-text like the Constitution. Rather, the common law is built out of precedents and traditions that accumulate over time. Our constitutional system has become a common law system, one in which precedent and past practices are, in their own way, as important as the written constitution itself. A common law Constitution is a ‘living’ Constitution”. (Strauss, 2010).
The “Revealed Word”
Unfortunately, the ultra-conservative turn that the United States is experiencing, has resulted in the imposition of the so-called originalist constitutional theory within its Supreme Court. Five of its nine judges explicitly adhere to it, while a sixth does so implicitly. What are the implications of this change?
Originalists believe that the constitutional text ought to be given the original meaning that it had at the time it was approved. According to Lawrence B. Solum: “Originalists argue that the meaning of the constitutional text is fixed and that it should bind constitutional actors. Living constitutionalists contend that constitutional law can and should evolve in response to changing circumstances and values”. (Solum, 2019). The change, thus, is huge.
By restricting its interpretation of the American Constitution to what its framers had in mind in 1787, the Supreme Court is turning the clock of history 337 years backwards. Suddenly, the United States becomes overwhelmed by the corpses of past history, and a relatively young nation becomes a spiritually elder one.
Certainly, few other countries within the international community are bound to rigidly interpret current mores under the viewpoint of eighteen century eyes. As in the case of fundamentalists in the religious sphere, the “Revealed Word” becomes everything.
References
Bobbio, Norberto (1999). Teoria Generale Della Politica. Torino: Einaudi.
Burdeau, Georges (1974). Droit Constitutionnel et Institutions Politiques. Paris: Librarie Geneále de Droit et de Jurisprudence.
Ortega y Gasset, José (1974). Discursos Políticos. Madrid: Alianza Editorial.
Solum, Lawrence B. (2019). “Originalism Versus Living Constitutionalism: The Conceptual Structure of the Great Debate”. Northwestern University Law Review, Vol. 113, April.
Strauss, David A. (2010). “The Living Constitution”. The University of Chicago Law School, September 27.
Vinx, Lars (2021). “Hans Kelsen and the Material Constitution of Democracy”. Jurisprudence. Milton Park: Routledge, June.
Author: Alfredo Toro Hardy, PhD – Retired Venezuelan career diplomat, scholar and author. Former Ambassador to the U.S., U.K., Spain, Brazil, Ireland, Chile and Singapore. Author or co-author of thirty-six books on international affairs. Former Fulbright Scholar and Visiting Professor at Princeton and Brasilia universities. He is an Honorary Fellow of the Geneva School of Diplomacy and International Relations and a member of the Review Panel of the Rockefeller Foundation Bellagio Center.
Image Credit: Jonas Ekströmer / TT / kod