The Creature Walks Among Us

In recent decades, the scholarly reaction to the Supreme Court's activism of the 1960s and early 1970s has been almost exclusively normative. The preponderant effort has been to show that the activism was wrong—that the Court abused its power by using it to excess. Most of the criticism can be fairly seen as a conservative ideological reaction to the liberal values that animated that activism. It coincided with significant changes in American politics: the decay of the political coalition that provided a climate of support for the broad thrust (if not all the details) of what is usually thought of as "Warren Court" activism, and the gradual coming to power of a new conservative coalition.

These critics have shared a sense that there is something illegitimate about the great expansion of rights and liberties that was the principal object of the Court's attention during this period. They seek the "correct" way to cabin appropriately the broad phrases and expansive concepts that were at the core of mid-20th century activism. The most prominent effort insists that the Constitution should be interpreted only in light of the original intent of the framers.

There is little that is really new in the shape of the theoretical battles that have been fought on this front in the past three decades. Many of the arguments were developed as part of earlier confrontations. And the search for original intent has not always been limited exclusively to the service of conservative objectives. However, the changing political climate and a new and divisive constitutional activism (most notably that surrounding the abortion issue) prompted a new generation of constitutional scholars to bring renewed vigor to the controversy.

Of course, the obvious problems associated with the aggressive exercise of judicial power in interpreting the Constitution are very serious, to say the least. But so are the difficulties with theories like "original intent" as they have frequently been put forth as the "solution" to those problems. ¹

Following traditional principles of statutory interpretation, the claim has been that when constitutional language is ambiguous, one looks to the historical record to see what the original drafters and supporters intended. It is also put forth as the democratic thing to do since the Constitution and its amendments are to be viewed as effectively "super-statutes" adopted by an extraordinary majority which can properly be altered only by another such extraordinary majority.

The proposition that broad constitutional provisions might be properly approached somewhat differently from most ordinary statutes usually gains no appreciation. Indeed, the strenuous insistence on confining constitutional interpretation to original intent often seems premised upon an almost "fundamentalist" insistence on certainty and clarity which exists far more definitely in the minds and emotions of many of the proponents than it does in historical reality. To insist that constitutional interpretation must be constrained by original intent is to try to create what could well be termed a "Constitution of the Living Dead." (One supposes that those on the other side of this debate might reciprocate by caricaturing what many see as the positive metaphor of a "Living Constitution" as "The Constitution that Ate America.")

But in fact, like it or not, there is actually a long-standing British and American practice of creatively developing, often dramatically, substantive constitutional arrangements while maintaining the original forms or provisions, and it is by no means an exclusively judicial process. Certainly the British political system has undergone drastic changes since the accession of William and Mary. Yet, as has been often pointed out, an examination of the written documents that are the constituents of, or nominally reflect, the British constitution will tell one very little of its actual substantive workings today. The tradition in both countries is venerable, often associated with conservative societal forces, and not necessarily marked by abuse of power. Paradoxically, although frequently carried on by processes that can be criticized as undemocratic or non-democratic, it has sometimes been associated with what many historians have later concluded...