1. Donovan, William J., “The Constitution as the Guardian of Property Rights,” The Annals of the American Academy of Political and Social Science 185 (05 1936):145–53, 145CrossRefGoogle Scholar.

2. Corwin, Edward S., “Curbing the Court,” The Annals of the American Academy of Political and Social Science 185 (05 1936):45–55, 55CrossRefGoogle Scholar.

3. For an overview of some of the contemporary debates regarding the concept of a living Constitution, see Murphy, Walter F., Fleming, James E., and Harris, William F. II, American Constitutional Interpretation (Mineola, N.Y.: Foundation Press, 1986), 126–80Google Scholar; Miller, Charles A., The Supreme Court and the Uses of History (Cambridge, Mass.: The Belknap Press of Harvard University Press, 1969)Google Scholar; and the bibliography found in Rakove, Jack N., ed., Interpreting the Constitution: The Debate Over Original Intent (Boston: Northeastern University Press, 1990)Google Scholar.

4. Skowronek, Stephen, Building a New American Slate: The Expansion of National Administrative Capacities, 1877–1920 (Cambridge: Cambridge University Press, 1982), 4, 9CrossRefGoogle Scholar. I do not dis-agree with Skowronek's claim that, during the nineteenth century, the Supreme Court “shaped the boundaries of intergovernmental relations” in a way that was “malleable and responsive,” but I would add that there was a limit to the malleability of a historically-informed jurisprudence such as original meaning, particularly on questions of the scope of Congress's legislative power and of the executive's discretionary regulatory authority. Skowronek does note that the Court kept up the fight against an expansive understanding of administrative regulation for some time, but I would probably not go so far as to say that administrative power had been largely “consolidated” by 1920 (ibid., 27, 259–84). As he notes, the Court offered some accommodation of the Interstate Commerce Commission in ICC v. Illinois Central Railroad Co. (1910), and the Transportation Act of 1920 was an important step in the development of commission government. Still, in light of the Court's ongoing struggles against the ICC, and especially in light of the New Deal battles over delegation of legislative power to the executive branch, it would seem more accurate to say that the consolidation of the administrative state did not take place until 1937, when the Court abandoned a jurisprudence of original meaning.

5. Leuchtenburg, William E., The Supreyne Court Reborn: The Constitutional Revolution in the Age of Roosevelt (Oxford: Oxford University Press, 1995), 236Google Scholar, argues that the Court “legitimated the arrival of the Leviathan State.”

6. Horwitz, Morton J., “Foreward: The Constitution of Change: Legal Fundamentality Without Fundamentalism,” Harvard Law Review 107 (11 1993):30–117, 32Google Scholar.

7. Of course, during the nineteenth century there were disagreements about what was intended by the framers' generation, and in some cases (but not many) the prevailing under-standing of original intent did change over time (for example, on whether federal regulation of interstate commerce was exclusive). However, prior to the twentieth century, debates about constitutional meaning were evaluated with reference to an accepted standard of fidelity to what was assumed to be the immutable meaning of the constitutional text, and not on the basis of legitimate adaptations away from original meanings.

8. See Bickel, Alexander M., The Least Dangerous Branch: The Supreme Court at the Bar of Politics (Indianapolis: Bobbs-Merrill, 1962)Google Scholar; Barry Friedman, “A History of the Countermajoritarian Difficulty” (paper presented at the 1996 Annual Meeting of the American Political Science Association, San Francisco). For a response to the claim that the Court acts as a countermajoritarian force, see Graber, Mark A., “The Nonmajoritarian Difficulty: Legislative Deference to the Judiciary,” Studies in American Political Development 7 (Spring 1993):35–73Google Scholar.

9. Ackerman, Bruce, We The People: Foundations (Cambridge, Mass.: Belknap Press of Harvard University Press, 1991)Google Scholar.

10. On the justices promoting their policy preferences or personal attitudes, see Segal, Jeffrey A. and Spaeth, Harold J., The Supreme Court and the Attitudinal Model (New York: Cambridge University Press, 1993)Google Scholar. On the accommodation of dominant coalitions and interests see Dahl, Robert, “Decisionmaking in a Democracy: The Supreme Court as a National Policy-Maker,” Journal of Public Law 6 (Fall 1957):279–95Google Scholar, and Shapiro, Martin M., Law and Politics in the Supreme Court: New Approaches to Political Jurisprudence (New York: Free Press, 1964)Google Scholar.

11. See Smith, Rogers M., “Political Jurisprudence, The ‘New Institutionalism,’ and Future of Public Law,” American Political Science Review 82 (03 1988):89–108, 95Google Scholar. For other criticisms of “instrumentalist” assumptions in public law scholarship, see Smith, , “If Politics Matters: Implications for a ‘New Institutionalism’,” Studies in American Political Development 6 (Spring 1992):l–36Google Scholar, and “Ideas, Institutions, and Strategic Choices,” Polity 28 (Fall 1995):135–40; Brigham, John and Gordon, Diane R., “Law in Politics: Struggles Over Property and Public Space on New York's Lower East Side,” Law and Social Inquiry 21 (Spring 1996):265–83Google Scholar; Burgess, Susan, “Beyond Instrumental Politics: The New Institutionalism, Legal Rhetoric, and Judicial Supremacy,” Polity 25 (1993): 445–59Google Scholar; McCann, Michael, “Causal versus Constitutive Explanation (or, On the Difficulty of Being so Positive…),“ Law and Social Inquiry 21 (Spring 1996):457–82Google Scholar.

12. Orren, Karen and Skowronek, Stephen, “Beyond the Iconography of Order: Notes for a ‘New Institutionalism’,” in The Dynamics of American Politics: Approaches and Interpretations, ed. Dodd, Lawrence C. and Jillson, Calvin (Boulder: Westview Press, 1994), 311–30, 326Google Scholar. See also, Howard Gillman, “A Court is an Idea, Not a Building (or a Game): Interpretive Institutionalism and the Analysis of Supreme Court Decisionmaking,” in Institutional Approaches to Supreme Court Decision-Making, ed. Cornell W. Clayton and Howard Gillman (Chicago: University of Chicago Press, forthcoming).

13. Fish, Stanley, Doing What Comes Naturally: Change, Rhetoric, and the Practice of Theory in Literary and Legal Studies (Durham, N. C.: Duke University Press, 1989)CrossRefGoogle Scholar. In other words, I am not arguing that nineteenth-century justices were constrained by their fidelitv to the “real” framers' intent.

14. On “higher lawmaker” and its relationship to the concept of popular sovereignty, see the discussion of “dualist democracy” in Ackerman's We The People; see also Dippel, Horst, “The Changing Idea of Popular Sovereignty in Early American Constitutionalism: Breaking Away From European Patterns,” Journal of the Early Republic 16 (Spring 1996):21–45, 40–41Google Scholar; Kyvig, David E., Explicit and Authentic Acts: Amending the U.S. Constitution, 1776–1995 (Lawrence, Kans.: University Press of Kansas, 1996), 1–18Google Scholar; Snowiss, Sylvia, Judicial Review and the Eaw of the Constitution (New Haven: Yale University Press, 1990)Google Scholar; and Hobson, Charles F., The Great Chief Justice: John Marshall the the Rule of Law (Lawrence, Kans.: University Press of Kansas, 1996)Google Scholar.

15. Bolingbroke, Henry St. John Viscount, A Dissertation upon Parties, 3d. (London, 1735), 108Google Scholar, cited in Dippel, “Changing Idea of Popular Sovereignty,” 24.

16. See Reid, John Phillip, Constitutional History of the American Revolution, Volume 3: The Authority to Legislate (Madison, Wise: University of Wisconsin Press, 1991)Google Scholar.

17. Mather, M., America's Appeal (1775), quoted in Hamburger, Philip A., “The Constitution's Accommodation of Social Change,” Michigan Law Review 88 (11 1989):239–327, 263Google Scholar.

18. Kent, James, An Introductory Lecture to a Course of Law lectures (New York, 1794)Google Scholar, repr. in American Political Writings during the Founding Era, 1760–1805, ed. Hyneman, Charles S. and Lutz, Donald S., 2 vols. (Indianapolis: Liberty Press, 1983), 2:943Google Scholar.

19. Quoted in Hamburger, “The Constitution's Accommodation of Social Change,” 269–70.

20. Cited in Dippel, “Changing Idea of Popular Sovereignty,” 39.

21. Hamburger, “The Constitution's Accommodation of Social Change,” 271. Hamburger argues that the principal difference between the Antifederalists and the Federalists was that the former wanted more specific guarantees while the latter worried about including provisions in the Constitution that were too contingent, since their presence might undermine the permanence of the document—which was a problem that the Antifederalists thought could be handled by greater use of the amendment authority.

22. Cited in Hyneman and Lutz, American Political Writings, 2:942.

23. Hamburger, “The Constitution's Accommodation of Social Change,” 281–82.

24. Ibid., 283–97. Madison tried to find a permanent, constitutional standard of compensation for officeholders; at one point he suggested that salaries be tied to the value of a certain amount of wheat. But the idea was rejected as not reliably permanent. The most obvious example of a built-in anachronism is the Seventh Amendment's provision for a jury trial in civil cases of more than twenty dollars. Of course, this provision was not part of the original constitutional design. Hamburger views this amendment as an acceptable compromise, a provision that predictably would become obsolete but that was “considered inconvenient rather than dangerous.” Ibid., 296–97.

25. Ibid., 292, 295.

26. Ibid., 241.

27. Ibid., 309, 319; the Antifederalist is William Penn.

28. See Dworkin, Ronald, “Constitutional Cases,” in Taking Rights Seriously (Cambridge, Mass.: Harvard University Press, 1977), 131–49Google ScholarPubMed.

29. Gustafson, Thomas, Representative Words: Politics, Literature, and the American Language, 1776–1865 (Cambridge: Cambridge University Press, 1992), 43–44, 60Google Scholar, emphasis added.

30. Hamilton, Federalist No. 78 at 510, emphasis added. On these topics see also Hobson, The Great Chief Justice; Powell, H. Jefferson, “The Original Understanding of Original Intent,” in Interpreting the Constitution: The Debate Over Original Intent, ed. Rakove, Jack (Boston: Northeastern University Press, 1990), 53–115Google Scholar (originally published in Harvard Law Review 98 [March 1985]); and Lofgren, Charles A., “The Original Understanding of Original Intent?”, in Interpreting the Constitution: The Debate OverOriginal Intent, ed. Rakove, Jack (Boston: Northeastern University Press, 1990), 117–50Google Scholar (originally published in Constitutional Commentary 5 [Winter 1988]). For a discussion of Locke's and Madison's epistemology of language, and why they (if not we) could have faith in the essential permanence of constitutional language, see Hamburger, “The Constitution's Accommodation of Social Change,” 303–6. Whatever their concerns about the reliability of language, it is nevertheless the case that, for the framers,

A written constitution is… an effort to make a set of political relationships both explicit and permanent, to establish rights, duties, authorities, and processes in such a way that they will be comprehended not only by the present by also by the future. Murphy, et al., American Constitutional Interpretation, 126.

31. Blackstone, Commentaries, 1st (1765), 1:91, cited in Dippel, “Changing Idea of Popular Sovereignty,” 41.

32. Hamilton, Federalist No. 78, emphasis added; Cooley, Thomas M., Commentaries on the Law of England, by Sir William Blackstone, Knight, togetherwith a Copius Analysis of the Contents, and Notes with References to English and American Decisions and Statutes to date, 3d (Chicago: Callaghan and Co., 1884), 59Google Scholar.

33. On the relationship between the authority of popular sovereignty as embodied in “higher lawmaking” and the “preservationist function” of constitutional interpretation, see Ackerman, We the People.

34. Hamburger, “The Constitution's Accommodation of Social Change,” 280–81. While the amendmentprocesswas understood to bean appropriate mechanism for change, as Cecilia Kenyon has pointed out itwas also viewed primarilyas a means by which the Constitution would be perfected after experience exposed unanticipated defects, rather than as a means of adapting it to changing circumstances. Kenyon, , “Constitutionalism in Revolutionary America,” in Constitutionalism, ed. Pennock, J. & Chapman, J. (New York: New York University Press, 1979), 155,Google Scholar cited in ibid., 301.

35. Madison, Federalist No. 49. Rather than recur to the people upon every occasion of such an encroachment, Madison suggested giving members of each branch the capacity to maintain the necessary partition of power.

When the Congress first debated amending the Constitution it had to be decided whether to weave new amendments into the existing structure in order to make the constitution “as intelligible as possible” or whether amendments should be collected in a separate attachment. The decision to have the amendments stand separately was made out of fear that “the authority of the initial instrument and the intentions of its creators would be otherwise obscured.” See Kyvig, Explicit and Authentic Acts, 101.

36. Hamburger, “The Constitution's Accommodation of Social Change,” 280–81, discussing Letter from Jefferson to Madison, September 6, 1789.

37. Rakove, Jack N., Original Meanings: Politics and Ideas in the Making of the Constitution (New York: Alfred A. Knopf, 1996), 352–55Google Scholar. See also his discussion of the debate over the Jay Treat) for competing opinions about the relative importance of the intent of the Philadelphia delegates and the perspectives of the members of the state ratifying conventions.

38. Marbury V. Madison, 1 Cranch 137 (1803), 176–77.

39. U.S. v. Fisher, 2 Cranch 358 (1805), 386.

40. Gibbons u Ogden, 22 U.S. 1 (1824). See also Justice Story's opinion in Martin v. Hunter's Lessee, 1 Wheaton 304 (1816).

41. McCulloch v Maryland, 4 Wheat. 316 (1819). These points were first made by Marshall in U.S. v. Fisher, 2 Cranch 358 (1805).

42. Quoted in O'Brien, David M., Constitutional Law and Politics, Volume One: Struggles for power and Governmental Accountability (New York: W.W. Norton, 1991), 448Google Scholar.

43. White, G. Edward, The American Judicial Tradition: Profiles of Leading American Judges, expanded ed. (New York and Oxford: Oxford University Press, 1988), 22Google Scholar.

44. See Horwitz, “The Constitution of Change,” 41. He notes that the Court cited the “adaptation” language from the opinion only once in the entire nineteenth century and only six times as of 1945. See, for example, the opinions in two “crisis” cases, Home Building and Loan Association v. Blaisdell, 290. U.S. 398, 443 (1934) and Hirabayashi v. U.S., 320 U.S. 81, 100–01 (1943). The appropriation of this language in support of the concept of a living Constitution was a tactic that did not clearly emerge until well into the twentieth century.

45. Story, Joseph, Commentaries on the Constitution of the United States, abridged by the author (Boston: Hilliard, Gray, and Company, 1833), p. 143, §192Google Scholar.

46. Story, Joseph, Commentaries on the Constitution of the United States, volume I (non-abridged) (Boston: Hilliard, Gray, and Company, 1833), 409–10Google Scholar, §426. McDowell also reports that, according to Kent, the power of judicial review,

did not derive from Coke's notion of “common right and reason,” or Holt's standard of “natural equity.” The standard in the United States was “the true intent and meaning of the Constitution.” The reason was as clear for Kent as it had been for Marshall in Marbury: “The Constitution is the act of the People, speaking in their original character, and defining the permanent conditions of the social alliance.” (McDowell, “Coke, Corwin and the Constitution,” 398; the cite is to Kent's Commentaries [1840], 1:448–49)

47. Story, Commentaries (non-abridged), p. 383, §400.

48. This is the conclusion reached by Powell, “The Original Understanding of Original Intent.” Story explained that speculations about private intentions “can never abrogate the text; it can never enlarge its natural boundaries.” At this point he inserted a footnote in which he ridiculed Jefferson's suggestion that the text be interpreted, not in accordance with the original meaning of the words, but rather to protect state power and thus conform to the “probable” intentions of particular ratifiers:

What would be said of interpreting a statute of a state legislature, by endeavouring to find out, from private sources, the objects and opinions of every member…? It is obvious, that there can be no security to the people in any constitution of government, if they are not to judge of it [sic] by the fair meaning of the words of the text; but the words are to be bent and broken by the “probable meaning” of persons, whom they never knew, and whose opinions, and means of information, may be no better than their own? The people adopted the constitution according to the words of the text in their reasonable interpretation, and not according to the private interpretations of any particular man. (Story, Commentaries [non-abridged], pp. 390–92, §407)

The point is reiterated by Cooley, Thomas M., Treatise on the Constitutional Limitations Which Rest Upon the Legislative Power of the States of the American Union, 4th (Boston: Little, Brown, and Company, 1878), 68–69Google Scholar, when he argued that the intent of the people had to be “found in the instrument itself.” He quoted from an opinion by Justice Bronson in People v. Purdy, 2 Hill, 35 (original emphasis):

The language of the clause is: “The assent of two-thirds of the members elected to each branch of the legislature shall be requi-site to every bill creating, continuing, altering, or renewing any body politic or corporate.” The words are as broad in their significance as any which could have been selected for the occasion from our vocabulary, and there is not a syllable in the whole instrument tending in the slightest degree to limit or qualify the universality of the language. If the clause can be so construed that it shall not extend alike to all corporations, whether public or private [as was being suggested by one of the litigants], it may then, I think be set down as an established fact that the English language is too poor for the framing of fundamental laws which shall limit the powers of the legislative branch of the government…Butitis said that we may look beyond the instrument for the purpose of ascertaining the mischief against which the clause was directed, and thus restrict its operation. But who shall tell us what the mischief was?… Some suppose the clause was intended to guard against legislative corruption, and others that it was aimed at monopolies…. In this way a solemn instrument… is made to mean one thing by one man and something else by another, until, in the end, it is in danger of being rendered a mere dead letter; and that, too, where the language is so plain and explicit that it is impossible to mean more than one thing, unleswe lose sight of the instrument itself, and allow ourselves to roam at large in the boundless fields of speculation. For one, I dare not venture upon such a course. Written constitutions of government will soon come to be regarded as of little value if their injunctions may be thus lightly overlooked; and the experiment of setting a boundary to power will prove a failure. We are not at liberty to presume that the framers of the Constitution, or the people who adopted it, did not understand the force of language.

49. See Aleinikoff, T. Alexander, “Constitutional Law in the Age of Balancing,” Yale Law Journal 96 (04 1987): 943–1005CrossRefGoogle Scholar, for a discussion of the transformation from this more categorical approach to the modern approach of “balancing.”

50. 22 U.S. at 203. For a more elaborate discussion of the production-distribution dichotomy in nineteenth-century constitutional law, see Gillman, Howard, “More on the Origins of the Fuller Court's Jurisprudence: The Scope of Federal Power Over Commerce and Manufacturing in Nineteenth-Century Constitutional Law,” Political Research Quarterly 49 (06 1996):415–37CrossRefGoogle Scholar.

51. Story, Commentaries on the Constitution of the United States, 372–73. For similar statements in other treatises see Cooley, Thomas M., The General Principles of Constitutional Law in the United States of America (Boston: Little, Brown, and Company, 1880), 65–67Google Scholar; Duer, William Alexander, A Course of Lectures on the Constitutional Jurisprudence of the United States, 2d (Boston: Little, Brown and Company, 1856), 247, 249, 253, 257Google Scholar; Hare, J. I. Clark, American Constitutional Law (Boston: Little, Brown, and Company, 1889), 441Google Scholar; Kent, James, Commentaries on American Law (New York: William Kent, 1848), 436Google Scholar; and Pomeroy, John Norton, An Introduction to the Constitutional Law of the United States, 4th (Boston: Houghton. Osgood and Co., 1880), 208–9, 244–45Google Scholar. See also Veazie v. Young, 55 U.S. 568 (1852); Kidd v. Pearson, 128 U.S. 1 (1888).

52. Trade-Mark Cases, 100 U.S. 82 (1879); Pensacola Telegraph Company v. Western Union, 96 U.S. 1 (1878); U.S. v. E.C. Knight, 156 U.S. (1895). See Gillman, “More on the Origins of the Fuller Court's Jurisprudence.”

53. Dred Scott v. Sandford, 60 U.S. 393 (1857), 405, 426. For an attempt to distinguish the jurisprudence of Marshall, Story, and Taney, see Kahn, Legitimacy and History, 24–53.

54. 60 U.S. 393 (1857).

55. Cooley, Thomas M., A Treatise on the Constitutional Limitations Which Rest Upon the Legislative Power of the States of the American Union, 4th (Boston: Little, Brown, and Company, 1878), 68Google Scholar (original emphasis).

56. Cooley, Thomas M., A Treatise on the Constitutional Limitations Which Rest Upon the legislative Power of the States of the American Union (Boston: Little, Brown, and Company, 1868), 54Google Scholar.

57. Cooley, , Constitutional Limitations (1868 edition), 54–55Google Scholar.

Captain Vere in Billy Budd, for instance, is a man whose “settled convictions” are represented as a “dike against…. invading waters of novel opinion, social, political, and otherwise, which carried away as in a torrent no few minds in those days.” Captain Vere, like the judge praised by Tocqueville and Fisher, resists the current, the waves, the torrent. (Gustafson, Thomas, Representative Words: Politics, Literature, and the American Language [Cambridge: Cambridge University Press, 1992], 47–48)Google Scholar

58. Cooley, , Constitutional Limitations (1868 edition), 54–55Google Scholar (original emphasis). Curiously, Kahn, in Legitimacy and History, 73–77, suggests that Cooley viewed constitutional law as evolutionary in the same way that common law was evolutionary. Kahn fails to distinguish Coolev's attitudes about common law versus constitutional law (his subchapter heading for Cooley is “Constitutionalism and Common Law”) and he confuses Cooley's nominal historicism – his sense that law took shape over time in caselaw and was not fully developed when first announced – with a belief in an “evolving unwritten constitution” (which is the title of the chapter in which Kahn discusses Cooley and others). Cooley believed neither in an evolving constitution nor an unwritten constitution. See Siegel, Stephen A., “Historicism in Late Nineteenth-Century Constitutional Thought,” Wisconsin Law Review (1990):1431–547Google Scholar. Siegel suggests that one of Cooley's contemporaries, Pomeroy, John Norton, who wrote An Introduction to the Constitution Law of the United States in 1868Google Scholar, acknowledged that, in the long run, the people will make sure that the government adopt the view of the Constitution that they consider to be most appropriate; but while this suggests an evolutionary conception of constitutional meaning, he also argued that the meaning of the Constitution “should be measurably fixed and certain.” Still, Pomeroy did argue that, as a factual matter, it may be impossible to ensure that the prevailing interpretations of the Constitution be in accord with the intent of the framers. Pomeroy, Constitutional Law, 86–87,97–98, quoted in Siegel, “Historicism,” 1478–79.

59. Duer, William Alexander, A Course of Lectures on the Constitutional Jurisprudence of the United States, 2d (Boston: Little, Brown, and Co., 1856), 45.Google Scholar

60. See, for example, Hare, J. I. Clark, American Constitutional Law, 2 vols. (Boston: Little, Brown, and Company, 1889), 1:2–3Google Scholar.

61. Jameson, John Alexander, A Treatise on the Principles of American Constitutional Law and Legislation, 2d (Chicago: E. B. Myers and Company, 1869), 77.Google Scholar

62. Cooley, Thomas M., The General Principles of Constitutional Law in the United States of America (Boston: Little, Brown, and Co., 1880), 22–24Google Scholar.

63. Jameson, Treatise, 78–81. He added:

Two tendencies are observable in reference to the way in which a Constitution is regarded by the citizens of a state, both equally reprehensible: the tendency to idolize the letter of it, or, on the contrary, to under-estimate its real sacredness, and so to degrade it to the level of ordinary laws. The latter leads to undue tampering with constitutional provisions for purposes of selfish or partisan ambition. The former begets that foolish kind of conservatism which clings to its worn-out garments until the body is ready to perish with cold.

Griffin, Stephen M., “Constitutionalism in the United States: From Theory to Politics,” in Responding to Imperfection: The Theory and Practice of Constitutional Amendment, ed. Levinson, Sanford (Princeton, N.J.: Princeton University Press, 1995), 37–62Google Scholar, argues that political development in the United States has undermined the “rule of law” constitutionalism of the framers in two ways: at the state level, it has led to the ready use of the amendment procedure, to the point where state constitutions are treated as statutes and thus are no longer venerated as foundational documents; at the federal level (where veneration has been more conspicuous), it has led to the sort of “demoralizing evasions” mentioned by Cooley, such that there is little pretense any longer that our political system resembles the original design.

64. Gustafson, Representative Words, 54–55; quoted material is found on these pages as well.

65. This stability is noted by Skowronek, Building a New American State, and is evident in the account of regulation offered by Novak, William J., The People's Welfare: Law and Regulation in Nineteenth-Century America (Chapel Hill: University of North Carolina Press, 1996)Google Scholar.

66. Whittington, Keith, “The Political Constitution of Federalism in Antebellum America: The Nullification Debate as an Illustration of Informal Mechanisms of Constitutional Change,” Publius 26 (Spring 1996), 1–24, 23CrossRefGoogle Scholar.

67. Quoted in Kahn, Legitimacy and History, 71–72.

68. Quoted in Gustafson, Representative Words, 57–58. Lowell, however, was of two minds about constitutional permanence. He thought that it was a “good thing” that we insist that judges feel bound by the letter of the Constitution, but he added that it is “a still better thing” that “in the end we should be governed by its spirit, living and operative in the energies of an advancing people,” since an “open sea” is “the only pathway to fortune and to glory.” Ibid., 65. During this transitional period, he was apparently arguing for the benefits of a mythical originalism and an actual (albeit conservative) non-originalism.

69. Horwitz, “Constitution of Change,” 42; see also Kammen, Michael, A Machine That Would Go of Itself (New York: St. Martin's Press, 1994), 17Google Scholar.

70. Kammen, A Machine That Would Go of Itself, 18–19. For an overview of nineteenth – and twentieth-century legal commentators who drew on a neo-Darwinian or evolutionary conception of legal change, see Elliott, E. Donald, “The Evolutionary Tradition injurisprudence,” Columbia Law Review 85 (01 1985):38–94Google Scholar, and Hovenkamp, Herbert, “Evolutionary Models in jurisprudence,” Texas Law Review 64 (12 1985):645Google Scholar. Most of the scholars reviewed by Elliott focused on the evolution of private law rather than constitutional law. As Horwitz points out, though,

as significant as Darwinism was in introducing ideas of historical change into social and legal theory, surprisingly by the beginning of the twentieth century, it has barely gained a foothold in the development of constitutional thought. The cultural domination of a static conception of constitutional fundamentality continued to prevail. It was only after Lochner that a progressive view of the Constitution began to emerge. (Horwitz, “Constitution of Change,” 43)

71. Kammen, A Machine That Would Go of Itself, 18–19. Lowell's, quote is from his Essays on Government (Boston, 1889), 1–4Google Scholar, and Wilson's, is from The New Freedom (Garden City, N.Y., 1913, 1921), 46–48Google Scholar. For other examples of this language, and how different metaphors were invoked by conservatives and progressives, see. Kammen, Machine That Would Go, 18–20.

72. Wilson, , Constitutional Government in the United States (1908), 22, 56Google Scholar.

73. White, Morton, Social Thought in America: The Revolt Against Formalism (Boston: Beacon Press, 1957)Google Scholar.

74. See Siegel, “Historicism.” Siegel points out how most nineteenth-century historicists operated within the framers' assumption that constitutional meaning was immutable; they simply believed that constitutional meaning could be perfected by experience. Holmes, however, was different:

From the perspective of this Article, Holmes' most revolutionary aphorism is not the oft-quoted reminder that “[t] he life of the law has not been logic: it has been experience.” Historicist jurists would have agreed with this sentiment. Instead, Holmes' break with convention is most succinctly captured in his ironic claim that “continuity with the past is only a necessity and not a duty.” To historicist jurists, “continuity with the past” was a duty. Small wonder that they conceived a constitutionalism that was insufficiently transformative for their legal positivist opponents who believed [again quoting Holmes] that such “continuity simply limits the possibilities of our imagination.” (Ibid., 1547)

Holmes was, in a sense, the first anti-originalist historicist.

75. For recent overviews, see Westbrook, Robert B., John Dewey and American Democracy (Ithaca, N.Y.: Cornell University Press, 1991)Google Scholar, and Diggins, John Patrick, The Promise of Pragmatism: Modernism and the Crisis of Knowledge and Authority (Chicago: University of Chicago Press, 1994)Google Scholar.

76. Tiedeman, Unwritten Constitution, 43–45, 136, 150, 164, quoted in Siegel, “Historicism,” 1528–32.

77. Tiedeman, , “The Income Tax Decisions as an Object Lesson in Constitutional Construction,” Annals of the American Academy of Political and Social Science 6 (1895): 268Google Scholar, quoted in Kammen, A Machine That Would Go of Itself, 14. See also Whipple, Edwin P., Outlooks on Society, Literature, and Politics (Boston: Houghton Mifflin, 1892), 172Google Scholar, quoted in Gustafson, Representative Words, 46: “written constitutions, by a process of interpretation, are always made to follow the drift of great forces; they are twisted and tortured into conformity with the power dominant in the State.”

78. Siegel, “Historicism,” 1539. He adds that “his modern perceptions are cabined by historicist views,” such as the view “that ‘a people’ have a ‘national character,’ that the prevalent state of right changes gradually and slowly, and that the people's views are still sufficiently unitary and stable for courts to divine them and fashion laws in their image.”

79. On Tiedeman's relatively small influence on late nineteenth-century jurisprudence, see Mayer, David N., “The Jurisprudence of Christopher G. Tiedeman: A Study in the Failure of LaissezFaire Constitutionalism,” Missouri Law Review 55 (Winter 1990):95–161, 142Google Scholar.

80. White, G. Edward, Justice Oliver Wendell Holmes: Law and the Inner Self (New York: Oxford University Press, 1993), 146Google Scholar.

81. Cited in White, Justice Oliver Wendell Holmes, 147.

82. Holmes, Oliver Wendell, The Common Law (Boston: Little, Brown, 1881), 1–2Google Scholar.

83. Elliott, “The Evolutionary Tradition in Jurisprudence”; White, Justice Oliver Wendell Holmes, 149.

84. Lochner v. New York, 198 U.S. 45 (1905), 75–76.

85. Gompers v. U.S., 233 U.S. 604 (1914), 610.

86. Missouri v. Holland, 252 U.S. 416 (1920), 433.

87. White, Justice Oliver Wendell Holmes, 329–30, 360.

88. Holmes, “Lawin Science and Science in Law,” quoted in Siegel, , “Historicism,” 1547. In the preface to Frank Parsons' Legal Doctrine and Social Change (New York: B.W. Huebsch, 1911), 8–9Google Scholar, Ralph Albertson argued that if man,

considers the law fundamentally wrong and our present society utterly hopeless, he will be a revolutionist. If he canonizes the law of the past, making it the guide and measure of all future law, and so enslaving society to the corpses of its dead, he will be a reactionary. If, however, he estimates the law on a utilitarian basis, and without any bondage to precedent accepts it as a power for progress to be developed rather than cast aside, he will be a social evolutionist.… To the reader who has noted the prevailing lack of any dynamic conception of the law, or any adequate understanding of it as an evolutionary force, or who sees wrongs and social barbarism entrenched behind the courts and constitutions that are inelastic, and that try to confine the State to police functions, this book should bring a hope of better things.

The author dedicated the book to Holmes, “whose freedom from … worship of precedent is deserving of all praise.”

89. See Frankfurter, Felix, “Hours of Labor and Realism in Constitutional Law,” Harvard Law Review 29 (02 1916): 353–73Google Scholar, and Pound, Roscoe, “The Need for a Sociological Jurisprudence,” Green Bag 19 (1907): 607Google Scholar, and “The Scope and Purpose of Sociological Jurisprudence,” Harvard Law Review 24 (June 1911): 591, continued at Harvard Law Review 25 (April 1912):140, 489. Like Holmes, Roscoe Pound also advocated a “jurisprudence of ends” which evaluated legal materials in light of their utility to serve contemporary purposes. This attitude of selective obligation applied even to the framers of the Constitution, who should not have intended “to dictate philosophical or juristic beliefs and opinion to those who were to come after them.” Constitutional provisions deserved respect, but they should be treated as general principles and not fixed rules. Thus, it was possible that a regulation that “might have been an unreasonable deprivation of liberty as things were even 50 years ago” might be “reasonable … as things stand now.” Pound, Roscoe, “Interests of Personality,” Harvard Law Review 28 (02 1915): 343,454–55Google Scholar, and “Liberty of Contract,” Yale Law Journal 18 (May 1909): 454, 457–58, 467, 469. See the discussion in Graber, Mark A., Transforming Free Speech: The Ambiguous Legacy of Civil Libertarianism (Berkeley: University of California Press, 1991), 69–74Google Scholar.

90. Ackerman, We the People, 7–8. Among the partisans of this tradition Ackerman includes Woodrow Wilson, James Thayer, Charles Beard, Holmes, Robert Jackson, Alexander Bickel (who coined the phrase “countermajoritarian difficulty” in The Least Dangerous Branch, 2d [1986], 16–23), and John Ely. Ackerman distinguishes the notion of monistic democracy from the notion of “dualist democracy,” which holds that normal democratic policymaking must take place within the boundaries established in acts of “higher lawmaking” that reflect fundamental popular sovereignty. Ackerman is correct that American constitutionalism was predicated on something like his notion of dualist democracy, but this original tradition cannot be used to support his claim that courts should recognize moments of “higher lawmaking” that do not take the form of constitutional amendment, such as the New Deal battle.

91. Horwitz, “Constitution of Change,” 57. On this page Horwitz provides a chart tracking the number of times that the words “democracy” or “democratic” are used in Supreme Court opinions; as expected, the chart barely registers a result until the 1920s, and after the “switch in time” the numbers explode.

92. See Gillman, Howard, “Preferred Freedoms: The Progressive Expansion of State Power and the Rise of Modern Civil Liberties Jurisprudence,” Political Research Quarterly 47 (09 1994):623–53CrossRefGoogle Scholar.

93. Graber, Transforming Free Speech, 140–43; Chafee, Zechariah Jr, “Freedom of Speech in Wartime,” Harvard Law Review 32 (06 1919): 932CrossRefGoogle Scholar, “Legislation Against Anarchy,” New Republic 19 (1919): 379, Freedom of Speech (New York: Harcourt, Brace and Howe, 1920).

94. The well known historical purpose of the Fourth Amendment, directed against general warrants and writs of assistance, was to prevent the use of governmental force to search a man's house, his person, his papers and his effects; and to prevent their seizure against his will.… The Amendment itself shows that the search is to be of material things – the person, the house, his papers or his effects.…[T]he Fourth Amendment [is] to be liberally construed to effect the purpose of the framers of the Constitution in the interest of liberty. But that can not justify enlargement of the language employed beyond the possible practical meaning of houses, persons, papers, and effects, or so to apply the words search and seizure as to forbid hearing or sight. (Olmstead v. U.S., 277 U.S. 438 [1928])

95. Olmstead v. U.S., 277 U.S. 438, 475–76, 472 (1928). Baker, Leonard, in Brandeis and Frankfurter: A Dual Biography (New York: Harper & Row, 1984), 135Google Scholar, suggests that this notion of fidelity via adaptive interpretation might be related to a Talmudic sensibility, in the sense that “rabbis commented on the Bible, not only to elucidate the genius in its pages but to help people live within its moral boundaries.” See also, Zohar, Noam J., “Midrash: Amendment through the Molding of Meaning,” in Responding to Imperfection: The Theory and Practice of Constitutional Amendment, ed. Levison, Sanford, 307–18 (Princeton, N.J.: Princeton University Press, 1995)Google Scholar.

96. Cardozo, , The Nature of the Judicial Process (1921), 17Google Scholar, cited in Horwitz, “Constitution of Change,” 54.

97. Cited in Murphy, et al., American Constitutional Interpretation, 136–38.

98. Home Building & Loan Association v. Blaisdell, 290 U.S. 398, 442–43 (1934), quoting Marshall in McCulloch and Holmes in Missouri v. Holland, cited in Murphy, et. al., American Constitutional Interpretation, 139–42. Horwitz, “Constitution of Change,” 56 n. 117, notes that Corwin, in The Twilight of the Supreme Court, picked up on the Chief's statement:

Witness, too, the Chief Justice's opinion for the Court [in Home Building], with its invocation of Marshall's doctrine of adaptive interpretation, and its insistence upon change in outlook as something which must be taken into account, no less than change in conditions, if the Constitution is to be kept viable.

99. Home Building & Loan Association v. Blaisdell, 290 U.S. 398 (1934), 448–50, 451–53, 465, 472–73, 483. See Bieneman, Charles A., “Legal Interpretation and a Constitutional Case: Home Building & Loan Association v. Blaisdell,” Michigan Law Review 90 (08 1992): 2534Google Scholar, for the argument that “Blaisdell was wrongly decided under any theory of interpretation.” See also, Miller, Charles A., The Supreme Court and the Uses of History (Cambridge, Mass.: The Belknap Press of Harvard University Press, 1969), 39–51Google Scholar.

100. The commitment to defend traditional police powers jurisprudence, and the subsequent battles over whether the justices should abandon this juriprudence in light of changes in economic relations brought about by industrialization, are discussed in Gillman, Howard, The Constitution Besieged: The Rise and Demise of Lochner Era Police Powers Jurisprudence (Durham, N.C.: Duke University Press, 1993)Google Scholar.

101. See Kelly, Alfred H., Harbison, Winfred A, and Belz, Herman, The American Constitution: Its Origins and Development, 2 vols. (New York and London: W.W. Norton & Co., 1991), 2:375–77Google Scholar. As I indicated in note 4, the Court offered some accommodations to commission government by 1920, but as I discuss later the originalists' concerns about reconciling expanded administrative power with traditional separation of powers principles continued through the New Deal.

102. See Urofsky, Melvin I, A March of Liberty: A Constitutional History of the United States (New York:Alfred A. Knopf, 1988), 531Google Scholar; Fiss, Owen M, History of the Supreme Court of the United States: Troubled Beginning of the Modern State, 1888–1910 (New York:Macmillan Publishing, 1993), 113–17Google Scholar.

103. U.S. v. E.C. Knight Co., 156 U.S. at 34 (1895). See Gillman, “More on the Origins of the Fuller Court's Jurisprudence.”

104. U.S. v. Trans-Missouri Freight Association, 166 U.S. 290 (1897) and U.S. v. Joint Traffic Association, 171 U.S. 505 (1898).

105. See Addyston Pipe and Steel Company v. U.S., 175 U.S. 211 (1899).The opinion recognizing Congress's delegated authority to regulate contracts addressing the buying and selling of articles in interstate commerce was written by Justice Peckham, who is typically associated with the doctrine of “liberty of contract” by virtue of his opinion in Lochner v. New York (1905).

106. South Carolina u. United States, 1991 U.S. 447 (1905), 448–49, 427.

107. Kammen, A Machine That Would Go of Itself, 208–13, 219–54; see also Brigham, John, The Cult of the Court (Philadelphia: Temple University Press, 1987)Google Scholar.

108. Kammen, , A Machine That Would Go of Itself, 210, 223,230–31. Beck was Solicitor General from 1921 to 1925. In The Tenth Justice: The Solicitor General and the Rule of Law (New York: Vintage Books, 1987), 16Google Scholar, Lincoln Caplan reports that one of Beck's trademarks was quoting liberally from Shakespeare during oral argument – a practice that led Holmes to mutter at the close of one of Beck's arguments (loudly enough for many in the courtroom to hear), “I hope to God Mrs. Beck likes Shakespeare!”

109. Beck, James M, The Constitution of the United States (1922)Google Scholar; Powell, Thomas Reed, “Constitutional Interpretation and Misinterpretation,” New Republic 33 (02 7, 1923): 297Google Scholar. The book came out in a number of different editions over the next six years. For an overview of favorable reactions to the book by prominent conservatives, see Keller, Morton, In Defense of Yesterday: James M. Beck and the Politics of Conservatism, 1861–1936 (New York: Coward-McCann, 1958), 157–59Google Scholar.

110. Pierson, Charles W, Our Changing Constitution (Garden City, N.Y.: Doubleday, Page & Co., 1926), 143–44Google Scholar, 146, 151. A year later, though, in a book entitled The Living Constitution: A Consideration of the Realities and legends of Our Fundamental Law (NewYork: The Bureau Press, 1927), 3, 33, 272, Howard Lee McBain expressed the view that “it is absurd to strike a complete contrast between a government oflaws and a government of men. … Laws without men to interpret and enforce them have neither life nor purpose. … Laws live only because men live and only to the extent that men will have them live.” The “living skin” of the Constitution “is elastic, expansive, and is constantly being renewed.” Moreover, it “was not handed down on Mount Sinai by the Lord God of Hosts. It is not revealed law. It is no final cause. It is human means.”

111. Hazlitt, Henry, “Our Obsolete Constitution,” The Readers' Digest 18 (04 1931)Google Scholar:1099, quoted in Kammen, A Machine That Would Go of Itself, 14.

112. Kammen, A Machine That Would Go of Itself, 227.

113. Ibid., 228. Kammen also notes that these reformers often disagreed about the Constitution and some changed their minds about the relative virtues of centralization. Kammen also includes Beard, Charles A in this list, but the inclusion seems inappropriate in light of Beard's essay on ”The Living Constitution,” The Annals of the American Academy of Political and Social Science 185 (05 1936):29–34CrossRefGoogle Scholar, 31, in which he wrote:

Since most of the words and phrases dealing with the powers and the limits of government are vague and must in practice be interpreted by human beings, it follows that the Constitution as practice is a living thing. … The fathers intended to leave room for interpretation, growth, and modification within the letter of the Constitution. … Even conservatives should regard the flexibility of our Constitution as its most admirable feature, and in fact they do when they are in power at Washington.

114. Kammen, A Machine That Would Go of Itself 259.

115. New York Times, September 18, 1934, cited in Swindler, Court and Constitution in the Twentieth Century, 30.

116. Kammen, A Machine That Would Goof Itself 269. Compare this to Corwin's brief against the conservative Court's commerce clause jurisprudence, which was entitled The Commerce Clause versus States Rights and subtitled “Back to the Constitution.”

117. Swindler, Court and Constitution in the Twentieth Century, 30.

118. Kammen, A Machine That Would Go of Itself, 271.

119. See Panama RrfiningCo. v. Ryan, 293 U.S. 388 (1935); Schecter Poultry Corp. v. U.S., 295 U.S. 495 (1935).

120. See Cousens, Theodore W, “The Delegation of Federal Legislative Power to Executive Officials,” Michigan Law Review 33 (02 1935): 512CrossRefGoogle Scholar, 539–44.

121. Kyvig, David E, “The Road Not Taken: FDR, the Supreme Court, and Constitutional Amendment,” Political Science Quarterly 104 (Fall 1989), 463–81, 470–76CrossRefGoogle Scholar.

122. Kyvig, Explicit and Authentic Acts, 291.

123. The Annals of the American Academy of Political and Social Science 185 (May 1936): 1–200, xvii–xviii: “Beginning on February 4th last and continuing through June 9th, this series has been broadcast over the Red Network and affiliated stations of the National Broadcasting Company.”

124. Barrows, David Prescott, “The Constitution as an Element of Stability in American Life,” The Annals of the American Academy of Political and Social Science 185 (05 1936): 1–10Google Scholar, 2–3, 5–9; see also Kyvig, , Explicit and Authentic Acts, xvi. Barrows was also president of the University of California from 1919 to 1923Google Scholar.

125. Beck, James M, “The Future of the Constitution,” American Bar Association Journal 19 (09 1933): 493–98Google Scholar, 540 at 494–95, 540 (emphasis added).

126. Dodd, Walter F, “The Powers of the National Government,” The Annals of the American Academy of Political and Social Science 185 (05 1936): 65–72, 65, 67, 71CrossRefGoogle Scholar.

127. Chafee, Zechariah, “The Supreme Court Rules That–,” Current History 37 (12 1932): 295Google Scholar, 302.

128. Kammen, A Machine That Would Go of Itself, 273.

129. Nelles, Walter, “Toward Legal Understanding: II,” Columbia Law Review 34 (06 1934): 1041–75CrossRefGoogle Scholar, 1069, 1075; part one of the article, which opens with a quote from Sutherland, is at Columbia Law Review 34 (May 1934): 862–89.

130. Lilienthal, David E, “Public Utilities During the Depression,” Harvard Law Revieiu 46 (03 1933): 745CrossRefGoogle Scholar, 775.

131. Richberg believed that such an amendment would “work infinitely more radical changes in our institutions and render individual rights and property rights much less valuable and secure than if there had been greater toleration of legislative action in the beginning.” “Undermining the Constitution,” Vital Speeches of the Day, January 13, 1936, 238–44, quoted in Kyvig, “The Road Not Taken,” 474. Kyvig's summary of Richberg's position: “… the Constitution contained adequate justification for New Deal actions and the amendment was not necessary.… The time had come for the Court majority to heed the popular voice. It was an argument that Franklin Roosevelt would soon embrace.” Ibid., 475.

132. Richberg, Donald R, “The Constitution and the New Deal,” The Annals of the American Academy of Political and Social Science 185 (05 1936): 56–64CrossRefGoogle Scholar, 58, 64.

133. Winant, John G, “The Constitution and Social Security,” The Annals of the American Academy of Political and Social Science 185 (05 1936): 22–28CrossRefGoogle Scholar, 22–24.

134. Corwin, Edward S, “Moratorium over Minnesota,” in Corwin on the Constitution, Volume Two: The Judiciary, ed. with intro. Loss, Richard (Ithaca, N.Y.: Cornell University Press, 1987), 331–36Google Scholar, 333–34, 336, originally published in University of Pennsylvania Law Review 82 (February 1934): 311.

135. Corwin, Edward S, Twilight of the Supreme Court (New Haven: Yale University Press, 1934), 184Google Scholar.

136. Corwin, Edward S, “Constitution v. Constitutional Theory: The Question of the States v. the Nation,” in Corwin on the Constitution, Volume Two: The Judiciary, 183–93, 191, originally published in American Political Science Review 19 (06 1925): 290Google Scholar. Not all advocates of the concept of the living Constitution (to be contrasted, as Corwin would have it, to the dead and buried framers) were enthusiasts of the New Deal. While the chairman of Harvard's Department of Government wrote that a “constitution must be capable of a living adaptation to a new economic setting if it is not to become the tomb of dead justice rather than the embodiment of the living,” he also expressed “impatience with the improvised, necessarily hasty but unnecessarily badly administered, patchwork of the New Deal [that] has been capitalized by the professional defenders of the sacred Constitution.” Elliott, W. Y, “Getting a New Constitution,” The Annuls of the American Academy of Political and Social Science 185 (05 1936): 115–22Google Scholar, 115, 122. Elliott, in fact, was mostly interested in expanding government powers, not to pass innovative social and economic legislation, but to make crime control more efficient: [When] procedural safeguards of the rights of citizens, suitable to protecting liberties against arbitrary political prosecution in agrarian communities, are used as rigid instruments to defeat modern police methods in the metropolitan communities of today, it is the ossification of an old rule that is destroying the true constitution. Still, he also warned the professional defenders of traditionalism that if reformers were denied the possibility of change via interpretation then change might be forced via a new constitutional convention that would be susceptible to the dangers posed by advocates of “fascism, or Bolshevism, or cranks.” Ibid., 117. Interestingly, he did think that, during calmer times, a number of formal constitutional amendments would be appropriate for the purpose of “forcing legislative responsibility for the spending power,” including an “item veto” for the president “and an amendment aimed at forcing Congress to provide revenue when it adds charges to the budget.” Ibid., 122.

137. Hart, James, “A Unified Economy and States' Rights,” The Annals of the American Academy of Political and Social Science 185 (06 1936): 102–14CrossRefGoogle Scholar, 102–3, 105.

138. Hart, “A Unified Economy and States' Rights,” 104–5, 107, 114.

139. Horwitz, “Constitution of Change,” 56–57.

140. West Coast Hotel v. Parrish, 300 U.S. 379 (1937), 391–92, 397–99. For a discussion of why West Coast Hotel should be viewed as a departure from the founding tradition and not a restoration of it, see H. Gillman, The Constitution Besieged, 175–93.

141. 300 U.S. 379, at 402–404.

142. White, A meriran Judicial Tradition, 195–96. White goes on to suggest that the loss of the “oracular conception” as embodied in the jurisprudence of the Four Horsemen need not be mourned since, he thinks, their conservative jurisprudence was itself a late-nineteenth century innovation, which means that their protest against innovative judging “revealed itself as a preference for one set of economic and social views over another.” Because I believe that their jurisprudence had more traditional origins, I disagree with the suggestion that their foundationalist theory was simply a smoke screen for an equally adaptive jurisprudence.

143. New York Times, December 23, 1934, cited in Swindler, Court and Constitution in the Twentieth Century, 31.

144. See Siegan, Bernard H, Economic Liberties and the Constitution (Chicago: University of Chicago Press, 1980)Google Scholar;Epstein, Richard, Takings: Private Property and the Power of Eminent Domain (Cambridge:Harvard University Press, 1985)Google Scholar; and Thomas, Justice's review of the nineteenth-century distinction between “commerce” and “production” in U.S. v. Lopez, no. 93–1260 (1995)Google Scholar.

145. The recent exception is U.S. v. Lopez (1995), the first case in almost sixty years in which the justices struck down an act of Congress on the grounds that the subject mater fell outside of the scope of Article I, section 8.

146. See Gillman, “Preferred Freedoms.”

147. See, for example, Rehnquist, William H, “The Notion of a Living Constitution,” in Murphy, et al., American Constitutional Interpretation, 163–68, originally published in Texas Law Review 54 (05 1976): 693Google Scholar; Bork, Robert H, “Neutral Principles and Some First Amendment Problems,“ Indiana Law Journal 47 (Fall 1971):1Google Scholar, 8–11, and The 'Tempting of America: The Political Seduction of the Law (New York: The Free Press, 1990), 251–59; Berger, Raoul, Government by Judiciary: 'The Transformation of the Fourteenth Amendment (Cambridge, Mass.: Harvard University Press, 1977)Google Scholar; Scalia, Antonin, “The Rule of Law as a Law of Rules,” University of Chicago Law Review 56 (Fall 1989):1175Google Scholar; Graglia, Lino A., “How the Constitution Disappeared,” in Interpreting the Constitution: TheDebate Over Original Intent, ed. Rakove, Jack (Boston: Northeastern University Press, 1990), 35–50Google Scholar; Meese, Edwin II, “Interpreting the Constitution,” inInterpreting the Constitution: The Debate Over Original Intent, ed. Rakove, Jack (Boston: Northeastern University Press, 1990), 13–21Google Scholar; Berns, Walter, Taking the Constitution Seriously (New York: Simon and Schuster, 1987)Google Scholar.

148. The Constitution was written by men who are, long dead, and to be ruled by the dead hand of the past is not self-government in any clear sense. … [I]f modern judges are faithful expositors of decisions made by the framers of the Constitution centuries ago and ignore contemporary public opinion, today's citizens are deprived of an opportunity to shape their own destiny in areas within the prohibitory scope of the old enactments, except through the cumbersome process of constitutional amendment. (Richard A. Posner, The Problems of Jurisprudence [Cambridge, Mass.: Harvard University Press, 1990], 27 n.41, 138)

149. “Once we have abandoned the idea that the authority of the courts to declare laws unconstitutional is somehow tied to the language of the Constitution that the people adopted [then judges] are no longer the keepers of the covenant; instead they are a small group of fortunately situated people with a roving commission to second-guess Congress.” Rehnquist, “The Notion of a Living Constitution,” 165. “To state that judges should interpret the Constitution as intended by those who wrote and ratified it (the ‘Framers’) is only to state the basic premise of our political-legal system. Indeed, it would be difficult to say what interpretation of a law means if not to determine the intent of the lawmakers.” If the original Constitution is now considered unknowable or irrelevant, then the conclusion that should follow is “that judges have no basis or justification for declaring laws unconstitutional, not that they are therefore free to invalidate laws on some other basis and still claim to be interpreting the Constitution.” Graglia, “How the Constitution Disappeared,” 35, 40–41, 44.

[W]hen “time” and not the constitutional text provides the standard by which judicial decisions are to be measured, the inevitable consequence is a Constitution that can be interpreted but not misinterpreted, construed but not misconstrued. Why, then, bother with a constitution at all? What good is it? .… The Constitution derives its binding authority .… only from the fact that it is an act of the people in their constituting capacity. … By what right would the Supreme Court “adapt” a Constitution that owes its authority to the fact that it was adopted by the people? (Berns, Taking the Constitution Seriously, 236–37)

150. Rehnquist, “The Notion of a Living Constitution,” 164–66. See also Davis, Sue, Justice Rehnquist and the Constitution (Princeton, N.J.: Princeton University Press, 1989)CrossRefGoogle Scholar.

151. Bork, Templing of America, 171. Bork does acknowledge that the Court's expansion of national power after the New Deal “was a manifestation of judicial activism” because [the] Constitution does indicate that there are defined national powers and that they have limits. … The new Court's refusal to enforce limits of any kind simply abandoned this aspect of the Constitution. That worked a revolution in the relationship of the federal government to the state governments and to the people, and the revolution did not have to await a constitutional amendment. The lesson to be learned from this is that the Court cannot stand forever against a strong and persistent political movement.

However, he adds that his “concern” is not with this adaptation as much as the Court's innovative use of the due process clause. Ibid., 56–57. Meese has claimed that “the decisions of the New Deal and beyond the freed Congress to regulate commerce and enact a plethora of social legislation were not judicial adaptations of the Constitution to new realities,” but were instead “removals of encrustations of earlier courts that had strayed from the original intent,” but this is not a position that most conservatives find convincing. See Henry Paul Monaghan, “State Decisis and Constitutional Adjudication,” in Interpreting the Constitution, 263–312, 267–68. It is also noteworthy that Bork considers Holmes – the grandfather of deference in the face of the sovereignty of the majority – to have been insufficiently committed to the principle that courts should defer to power. Ibid., 45–46. He does not state an opinion on Learned Hand, who served a half century as a federal judge and only twice invalidated statutes on constitutional grounds. See Gunther, Gerald, learned Hand: The Man and the Judge (New York: Knopf, 1994)Google Scholar.

152. Graglia, Lino A, “‘Interpreting’ the Constitution: Posner on Bork,” Stanford Law Review 44 (05 1992): 1019–50CrossRefGoogle Scholar, 1031.

153. Graglia, “‘Interpreting’ the Constitution,” 1032.

154. Horwitz, “Constitution of Change,” 65–70, enumerates a number of the “problems” with modern originalism, including: an unwillingness to impose the framers' conception of the presidency to the modern presidents; an unwillingness to abandon judicial extension of the Contracts Clause to corporate charters, or judicial recognition of corporations as “persons” under the Fourteenth Amendment; an unwillingness to live with the framers' limited conception of the First Amendment; the problem of choosing between the perspective of the original framers or a broad reading of the “revolution” produced by the Fourteenth Amendment; and the problem with choosing an appropriate level of conceptual generality. One might add to Horwitz's list other items, such as an unwillingness to return to the pre-New Deal scope of federal power, the abandonment of traditional constraints on the delegation of legislative power to executive branch agencies, and an unwillingness to reconstitutionalize the exercise of the war power.

At least one conservative commentator has emphasized the enormous practical problem of reestablishing constitutional originalism even if conservatives were serious about it. See Monaghan, “State Decisis and Constitutional Adjudication,” Interpreting the Constitution, 263–312, 291. His suggestion is that too much anti-originalist precedent has built up for us to even imagine a return to true constitutional foundations. The problem this leaves us is the need to give “precise content to a theory of constitutional adjudication that includes original under-standing, precedent, political equilibrium, and the need for change.” He adds: “Fortunately, that is the topic of another essay, not this one.” For a criticism of Monaghan as a constitutional turncoat, see Lawson, Gary, “The Constitutional Case Against Precedent,” Harvard Journal of Law and Public Policy 17 (Winter 1994): 23–33Google Scholar. For an early argument advocating the abandonment of virtually all contemporary constitutional doctrine in order to restore the original meaning, see Crosskey, William W, Politics and the Constitution in the History of the United States, 2 vols. (Chicago: University of Chicago Press, 1953)Google Scholar.

155. William J. Brennan, Jr., “The Constitution of the United States: Contemporary Ratification,” in Interpreting the Constitution, 23–34, 25, 27.

156. Brest, Paul, “The Misconceived Quest for the Original Understanding,” in Interpreting the Constitution, 227–62, 243, 245–46, 251–52 (emphasis added), originally published in Boston University Law Review 60 (03 1980)Google Scholar. For another defense of non-originalism, see Perry, Michael J., “The Authority of Text, Tradition, and Reason: A Theory of Constitutional ‘Interpretation,’;” Southern California Law Review 58 (1985): 551–602Google Scholar, 594, 596: Like Brest, Perry argued that constitutional interpretation should be a negotiation between the past and the present. However, as is typical for this genre, Perry ends his discussion in a fashion that is a bit evasive: To understand precisely how both tradition and reason (as well as constitutional text) are authoritative for constitutional decision-making, and also why they should be authoritative, that is, to understand how tradition and reason are and why they should be used to justify constitutional decisions, we must understand better than we do the nature of the activity of practical reasoning and, especially, the ways in which we use the past to transcend the past. See also Munzer, Stephen R and Nickel, James W, “Does the Constitution Mean What It Always Meant?”, Columbia Law Review 77 (11 1977):1029 (“If constitutional change is believed necessary on the basis of careful consideration and extensive argumentation, and if an athoritative interpreter has good grounds for believing that the change will not be introduced through formal amendment, innovation of this radical sort may then be desirable”; they call this “reauthoring” and cite Blaisdellas an example of the practice), and Miller, Supreme Court and the Uses of HistoryGoogle Scholar.

157. Ronald Dworkin, “The Model of Rules I,” in Taking Rights Seriously, 14–45, and “Can Rights be Controversial?”, in ibid., 279–90.

158. Dworkin, “Constitutional Cases.”

159. Dworkin, , Law's Empire (Cambridge, Mass.:Harvard University Press, 1986), 225Google Scholar, 245.

160. Brest, “The Misconceived Quest for the Original Understanding.”

161. Kyvig, Explicit and Authentic Acts,470, 480, 481, 483.

162. Ackerman, We, the People, 266–94, 290–91. Ackerman seems aware that his “critical elections” conception of popular sovereignty still leaves us to wonder when transformative movements are sufficiently deep, broad, decisive, and deliberate to qualify as de facto amendments by “We, the People” – a problem that is avoided when higher lawmaking is measured by the more formalistic test of an amendment.

163. Harris, William F. II, The Interpretable Constitution (Baltimore: Johns Hopkins University Press, 1993), 105Google Scholar. In this book Harris distinguishes two different kinds of interpretation: textual interpretation (which accepts the sovereignty of authorial intent) and the sort of interpretation engaged in by students of semiotics, who treat texts as cultural artifacts and are interested in using such artifacts to explore the larger structures of meaning that give shape and purpose to the life of a particular community. His strategy is to treat the Constitution, not as a message from a historical sovereign, but as the essential symbol of our polity. While it is certainly possible to treat the Constitution this way, it is important to note that this sort of activity is no longer about the enforcement of lawful commands, and this makes the nature of constitutionalism much different than what the framers envisioned.