Summertime is for sitting on the beach with a cold beer in one hand and a Kindle loaded with pdfs of legal theory in the other. Sitting by the seaside in August focuses the mind both on the need to appreciate the here-and-now and on the relentlessness of the passage of time and its cyclicality. The tides come in and out; the heat builds each day, reaching a crescendo that triggers the torrential downpours of the late afternoon; the August beachgoers exist in a frozen moment before the return of the fall (it speaks to the lovely perversity of academic life that our moment of rebirth comes just as the trees begin to die and the animals plan for winter hibernation). And so, surveying miles of white sands – kids frolicking and building sandcastles, sunbathers seeking Vitamin D and possible melanoma, vacationing office workers curled up with a paperback (with the BlackBerry always in sight), the corpse of some leviathan rotting on the shore (ok, I made that one up) – my thoughts turn to death and the law.
In particular, my thoughts turn to the deadest of the dead things that exist in our law, the Constitution. Of course, the deadness of the Constitution remains a contested claim; one might play off of the old Mark Twain line to argue that reports of the Constitution’s death are greatly exaggerated. I am no doctor and I do not profess to have the skills to diagnose what ails our Constitution. But the “living constitution” seems to display less vitality than the various forms of originalism (this blog post is motivated by reading some “new originalism,” despite finding constitutional law hopelessly boring – this isn’t a full analysis of that project, but rather it is the result of reading about that while also thinking about the failures of American constitutional law to embrace international human rights frameworks). Old-school originalism tends to focus on the Constitution as a document that is, in the words of Mr. Scalia, “dead, dead, dead.” And yet the Constitution persists – haunting the brains of the living. Perhaps it is better viewed as a species of undead – a vampire or zombie, or some sort of revenant. I want to press on the idea of the Constitution as dead and see where it goes.
Sure, there have been amendments to the Constitution (though the twenty-seventh such amendment was first proposed with the original Bill of Rights). But even dead creatures support entire microbial ecosystems. The Constitution may be dead, but it still supports life. (This is what separates us from the various Communist governments of the mid-century, with their embalmed and preserved leaders – Lenin, Mao, Ho Chi Minh – on display in an attempt to keep the spirit of the leaders alive despite their corporeal deadness. We had the good sense to venerate a document which we can keep preserved behind glass without looking silly. Unfortunately, while embalmed dead men tell no tales and can give no answers to pressing social issues, we feel no such compunctions about using the Constitution to channel the ghost of James Madison.)
Despite the signs of life around the Constitution – in both the formal possibility of amendment and in the very living reverence with which the document is held – the document itself is dead, according to prevailing constitutional interpretations. And yet, rather than giving it a respectful burial and a proper memorial, we publicly display the corpse in the metaphorical town square and fight over the public meaning of its short and controversial life. We hold out the corpse of our Constitution in order to claim its mandate for our acts (being dead, it cannot speak for itself and say whether or not massive surveillance is compatible with the concept of limited government) while also making clear that it can no longer act to constrain us (being dead, it cannot act in the face of a hopelessly inept and compromised Congress, or a Court that engages in linguistic violence such as describing a plan that relies upon segregated school systems for its efficacy as “race-neutral”). Had it been given a proper burial (compare with Antigone), we could dispense with pretending that it still governs our acts, and we would not need to contort its language to justify the abuses of power carried out in its name. If it is now dead, it had a short, proud, and controversial life. Let it rest in peace, rather than profane its memory!
But we cannot so easily lay to rest the Constitution if it is instead an undead being. Can we actually bring ourselves to drive a stake through its heart? The Constitution works (to the extent that it does) by structuring debate about contentious social issues. If we did not compel ourselves to seek answers to 21st century problems in the gnomic utterances of the 18th century Founding Fathers of the church of our civil religion, we would be forced to resolve these questions on our own. We subject ourselves to the guidance of this ancient text in order to avoid the burden of being free. Or, in a more social contractual sense, we subject ourselves to the guidance of the priesthood of our civil religion in order to avoid the dangers of being a free actor among other free actors in the Hobbesian state of bellum omnium contra omnes.
This suggests why the Constitution must be simultaneously alive and dead, just as in olden days the King had two bodies. The Constitutional system must, in part, transcend the debates of the day, rather than only being weaponized by one party or the other. But it must also respond to the particular issues of the day.
The Constitution speaks at a level of generality that is sufficient to potentially support a wide variety of claims – and that it should do so. Any legal claim that is not beyond the pale ought to fall within the shade cast by the Constitution; this is what preserves the possibility of constitutional discourse as such. At the same time, the Constitution is necessarily brought into the specifics of the controversies of the day, and we need a Constitution that is capable of speaking in those terms. If the Constitution is to guide our interpretations of specific controversies, it must be capable of being particularized for those specific purposes. A Constitution that is simply dead would be inert, and any attempt to use it would be profanation.
To claim an undead nature for the Constitution is to claim that history be taken seriously – not as the facile historicism used by those who wish to speak as ventriloquists on behalf of a Constitution that they are too quick to declare dead, and not as the utilitarian instrument that allows cherry-picking on behalf of one’s preferred political stance. An undead Constitution exists in a present moment from which it is both alienated and enmeshed. In all of this, the undead Constitution is both a fixed (though not immutable), detached structural element, pure and bloodless, as well as an engaged player on the field of legal contestation, vital and active (though less so than we might like). Yes, the stench of death lingers around the Constitution. But those old bones still can dance.