For some reason, people have been talking about the Constitution a lot lately. But when you get down to it, what do you really know about the Constitution?
The Current U.S. Constitution was written in 1787 and ratified in 1788. I say “current,” because it served as a sort of do-over on the first Constitution, the “Articles of Confederation,” after it turned out that the federal government it formed had proven wholly incapable of functioning.
Hard to relate, huh?
The original document itself primarily lays out the instructions for how to build a government. Then follows the twenty-seven Amendments, the first ten of which–known collectively as the “Bill of Rights”–were passed together in 1791. 
Okay, so that’s where it came from…but what the hell does it mean? Or, rather…how do we know what the hell it means?
Spoiler alert: we don’t.
See, the Constitution may be the instructions for how to build a government, but it’s like those crappy Ikea instructions that have no words and you wind up with twenty extra screws at the end.
Consequently, different Justices, politicians, and Constitutional scholars have different ideas about how we should take the text of the Constitution and turn it into some sort of legal framework.
I’ll cover a few of the interpretive theories that have floated around over the years, although a practical problem here is that people don’t necessarily all agree on what these theories actually mean. And then, of course, there’s the fact these ideas are inherently political, and the people who care enough about them to write at length about them are…you know…weirdos.
I mean biased. That’s what I said, right?
Ever wondered why we should really care what a bunch of slave-owning white men from over 230 years thought about liberty?
Well, Living Constitutionalism might be the theory for you.
This school of thought regards the Constitution not so much as a piece of paper with a set of concrete directives on it as a dynamic, evolving set of rules that can change and adapt to society’s needs.
This may seem like a vague, squishy way of doing things. Without the solid backing of a Written Law, what will protect us from those horrid Judicial Activists, who would “rewrite laws in their own constitutional image?” This sort of criticism is why Living Constitutionalism has largely fallen out of fashion, to the extent that few subscribe to it openly.
This criticism isn’t without merit, but it overplays its hand a bit. The fact is that this squishy, adaptable approach is otherwise known as common law, and it’s fundamental to our legal system. And while the common law is flexible, it’s not a free-for-all. In this kind of system, judges look to the original text of the Constitution, a statute, or some other source of law, but they also look to the precedents that have come before, in a principle called stare decisis, which dictates that when the courts see the same issue, they should reach the same outcome.  And this evolutionary approach to law supposedly allows the collective wisdom of judges to arrive at conclusions that will prove superior to a single contemporary Court examining the text of a document from centuries ago.
Admittedly, at times you might be trading the opinions of a handful of assholes from centuries ago for the opinions of a bunch of assholes over the generations, but hey, wait long enough, and eventually the common law will catch up, right?
So what would happen if you took the idea of generations of judges and Justices collaborating over the decades to arrive at a conclusion that adapts over time based on real world experience (rather than abstractions and theory) in order to fit society’s needs, and just did that opposite of that?
According to the National Constitution Center:
Originalists believe that the constitutional text ought to be given the original public meaning that it would have had at the time that it became law. The original meaning of constitutional texts can be discerned from dictionaries, grammar books, and from other legal documents from which the text might be borrowed. It can also be inferred from the background legal events and public debate that gave rise to a constitutional provision.
In other words, whatever the Constitution meant when it was enacted, that’s what it means now, too. Further, a strict approach would require looking to the text of the Constitution (or, at least a specific iteration of the Court’s interpetation of said text), even if that means overturning a series of well-established, important precedents regarding human rights for half the damn country.
Not that I’m referring to anything in particular, or anything.
So…what are the advantages to this approach?
First, from a theoretical standpoint, the approach has a certain appeal–to understand the law, look at the words that have actually been legitimized by the Democratic process.
Secondly, there’s…ah…what else? The, ah, the name is very…original…
Alright, let’s move on to the cons.
First, as I alluded to earlier…relying exclusively on the wording chosen by a group of elite, slave-owning white men from centuries ago as the last line of defense for our most essential liberties feels…unwise.
Second, as Sotomayor recently pointed out in oral arguments for Dobbs v. Jackson, the Constitution doesn’t explicitly state that the Supreme Court has the “last word” on the Constitution’s meaning. That came from Marbury v. Madison. Meaning a strict Originalist Justice is only one bad day away from an existential crisis. And, third and finally, a notable problem with looking only to the text of the Constitution is that the text of the Constitution doesn’t say to do that. If we’re not letting Justices bring their values to the table…where, exactly, did Originalism come from?
Next up, we have Textualism.
Textualism is commonly thought of as the same as Originalism, and although it’s related, it’s not the same. We should also avoid the common misconception that they’re different, when in reality, they’re exactly the same. Except that they’re not, because textualism is really a subset of Originalism. I mentioned that people don’t agree on this stuff, right?
Anyway, we’ll go with the “subset” theory, because it’s my website, and it at least makes a certain sense. Yeah, my source is some Libertarian organization, but if we’re talking about the nuances of Originalism, the Libertarians are among those who deeply give a shit.
If we’re going to go this route, we need to draw a distinction between original intent and original meaning. The “original intent” approach refers to looking toward what the drafters intended when they wrote the words. This necessitates a certain amount of speculation, with the obvious exception of Justice Gary Spivey.
I’m given to understand that other Justices may have just relied on history books.
The “original meaning” approach, in contrast, cares as much about the Founders’ intent as I care about cryptocurrency, and instead focuses on what people from that time period would have thought their words meant.
A Minor Note About Interpretive Theories That Doesn’t Completely Undermine the Point of This Whole Section
An article from back in March discussing Ketanji Brown Jackson really summed it up nicely:
She has [a judicial philosophy], and it is the same one that all of the Justices now favor: original public meaning of the enacted text, which is typically very under-determinate with respect to the controversial questions that come before the Court and thus ensures that other considerations, including the Justices’ different values, will account for most of the disagreement they express.
That is to say: sure, a Constitutional philosophy may hold a certain intellectual appeal, but pretty much every modern Justice looks to the text until it gets vague–as it always will–and then, at the end of the day, it comes down to how the Justice feels about the issue.
The Supreme Court
The Source(s) of its Power
Article 3, Section 2 of the Constitution discusses the powers of the Supreme Court :
The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;–to all Cases affecting Ambassadors, other public Ministers and Consuls;–to all Cases of admiralty and maritime Jurisdiction;–to Controversies to which the United States shall be a Party;–to Controversies between two or more States;–between a State and Citizens of another State;–between Citizens of different States, –between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.
In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.
This passage creates the Supreme Court and establishes its jurisdiction, and most of it isn’t that interesting.
The Eleventh Amendment modified that a bit in a way you don’t care about, but I’ll list anyway:
The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.
So why is this important? Well, mostly because there’s something…missing…there. More on that in a moment.
Marbury v. Madison
The year was 1801. John Adams had just pulled a Trump and failed in his bid to be more than just a one-term President. In the time leading up to getting the boot from office, Adams appointed his Secretary of State, John Marshall, to be the new Chief Justice. Then, the day before Adams left office, he nominated 42 men to serve as justices of the peace so that his rival and successor, Thomas Jefferson, could go fuck himself.
His appointments got approved by the Senate, but this left Secretary/Justice Marshall in a position where he had to finalize a lot of paperwork and deliver the commissions, and…well, it didn’t all get done. One of these undelivered commisions belonged to William “Jeopardy Question” Marbury.
When Jefferson took office in the aftermath of this court packing, he saw the four undelivered commisions, and told his Secretary of State, James Madison, that his position on the issue was “haha, nope.”
Marbury, like any true American, responded to this with a lawsuit. After that, some civil procedure happened, and BAM, Supreme Court.
The case revolved around these three issues:
- Did Marbury have a right to his commission?
- Could federal law help him out with that?
- Was the Supreme Court, specifically, able to help him out with that?
Now, in understanding the result of this case, you have to realize that the Supreme Court then wasn’t quite the same as what the Supreme Court is now. Sure, the Framers meant to create three coequal branches of government…but what sort of power they actually had was unclear. Hell, they heard cases in the basement of the Capitol. I mean, did they even wear wizard robes yet? I just don’t know anymore. 
This left Marshall in an awkward position, and not just because he was presiding over a case where he was the goober who failed to finish his paperwork in time. Marshall couldn’t ignore the fact that, if they ruled in Marbury’s favor, then odds were decent that Jefferson would reiterate his official policy of “haha, nope.” This would’ve made them look bad, and who would take them seriously after that? Conversely, if they sided with Jefferson, who was–in legal terminology–the Bad Guy, then they’d look like pushovers.
So what could he do about this dilemma?
Answer: a power grab.
First they said, yeah, Jefferson did a Bad Thing. And yeah, federal law could help: if Marbury sued, a federal judge could issue a writ. But…the Supreme Court couldn’t do the same.
Maybe it’s…not clear how saying you can’t do something counts as a power grab. That’s the clever bit. Remember how I glossed over the civil procedure earlier? Well, I’m gonna do that again. Let’s just say that the Judicial Act of 1789 gave them jurisdiction, and so Marshall struck it down as unconstitutional…and, in so doing, Marshall established that the Court had the authority to say stuff was unconstitutional.
In this ruling, Marshall established that:
- The Constitution is an actual law, not just some floofy manifesto, and
- The Supreme Court had the authority to strike down laws (“judicial review”).
That’s right. In a single opinion, Marshall talked shit about Jefferson, dodged any potentially embarrassing power struggles, and established that the Court was the Constitution’s official referee, thereby giving everyone the finger before doing a mic drop and moonwalking off the stage.
Although the number nine feels magic in modern times, the Supreme Court’s size has fluctuated over the years. Below, I’ve thrown together a table of the Court’s legislatively mandated size over time (but not necessarily its actual size, since Justices don’t appear and disapear instantly when the relevant laws change).
|Year||Legislatively Mandated Number||Reason|
|1789||6||Zero wasn’t enough.|
|1801||5||Suck it, Jefferson. Love, Adams.|
|1807||7||Shrug. Probably Jefferson wanted to.|
|1863||10||Suck it, Dred Scott. Love, Lincoln|
|1866||7||Suck it, Johnson. Love, Congress.|
|1869||9||Ulysses S. Grant? Yeah, okay.|
It would also appear that pretty much every time the number of Justices changed, it was politically motivated. For example, 1857’s racist uncle Dred Scott v. Sandford led to Lincoln’s bonus Justice in 1863.
Let’s discuss the Court’s jurisdiction–the power to hear cases–starting by looking at the Constitution’s text again. It’s okay, I know you’re not really going to read it:
In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have ** ** original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.
This means that while the Supreme Court’s original jurisdiction is unconditional, their appellate jurisdiction–that is, their power to hear appeals from lower courts–is subject to regulation by Congress.
However, this isn’t an unlimited power; Congress can’t undermine the independence of the judiciary by using this ability in a way that creates a “rule of decision,”  with that rationale that, as the Court put it, “You can’t tell me what to do. You’re not my real dad!”
Remember that time I put a bunch of work to help you visualize shark attacks? Well, now let’s visualize something with the potential to kill even more Americans.
Now that we’ve discussed the Constitution and the Court as a whole, let’s look at the individual Justices.
Note that I’m going to ignore Breyer for this discussion, and instead focus on the Justices who…you know…haven’t retired.
If you’re eyeing the “Popular Vote” chart suspiciously and thinking back on a certain incident with Al Gore and the state of Florida, remember that Bush The Younger made both of his appointments during his 2004-2008 term, so they get a sticker for Popular Vote after all.
If, on the other hand, you’re eyeing the atrocious alignment of my charts, deal with it. I’m done fighting with Vega-Lite about this, I’ve got another book to write.
And, by the way, all those “N/A” entries are because Ketanji Brown Jackson wasn’t around for those cases, and so they decided not to count her votes for some reason.
So where do Amendments come from? Sure, as kids we all heard the story about the stork, but we’re all older now, so let’s have the Talk.
Step One: The Proposal
In order to approve an Amendment, someone has to first propose one. There are two ways this can happen.
- A two-thirds vote of both Houses of Congress, or
- Two-thirds of the States request the Amendment by a Convention called for that purpose
That second point is largely theoretical, since none of the actual Amendments was proposed that way. Still, it’s nice to know you have the option.
Step Two: Ratification
Once proposed, an Amendment must be approved by three-fourths of the State legislatures, or three-fourths of conventions called in each State for ratification. Either way, this will probably have to occur within a specified deadline (probably a window of several years, but there’s no technical reason it couldn’t be whenever the planets next align and the moon turns to blood).
Upon approval by the States, the Amendment takes effect immediately. But, since it feels a little anti-climactic for the Amendment to just sort of…happen…some suits in the Federal Government will go ahead and do some certification and other ceremonial stuff so that they feel like they’ve been included. There’s probably cake, too. There should be more cake in government.
So…what is the takeaway here?
Let’s say, hypothetically, there were some sort of recent ruling that you regarded as being an extreme, politically motivated embarrassment to your country, what might you do?
Perhaps some would argue that you need to keep politics out of the Constitution…that it only says what it says, not what you want it to say.
Well, looking at the history…that’s kind of bullshit, isn’t it?
What the Constitution does or does not allow or require is…basically a political question. The text itself is often vague…the manner in which we interpret that text requires value-laden decisions that tend to also be politically motivated…and are made by an institution populated by politicians, who came to have the authority that they have because a historical figure made a series of adept political decisions in the aftermath of a political squabble…and, hell, even the number of Justices on the Court has always been determined by politics.
But…what avenue does that leave, then?
- Constitutional Amendments. Extreme. Effective. Unlikely. Getting that kind of consensus for anything in the current climate is a pipe dream.
- Jurisdiction Stripping. An ambitious legislature could theoretically attempt to strip the Court of jurisdiction about, say, camping. Unfortunately, not helpful if you’re on the side trying to protect camping from a state government, who would then be free to pass oppressive laws without any judicial review. And, additionally, the ultimate decision as to whether a particular attempt at jurisdiction stripping is itself constitutional is determined by the Supreme Court, so…good luck with anything they find too unpalatable.
- Packing the Court. Practical. Gets the job done well enough. Probably only lasts a few decades, but it is what it is. Unfortunately, requires both the executive branch and the legislative branch to effectively represent popular opinion.
- Voting and patience. Pratical…ish. Effective…ish. Potentially takes decades to protect your rights. Requires democracy to continue functioning in the face of gerrymandering and voter suppression. Not helpful if the rights that aren’t being adequately protected are your voting rights.
Anyway, I suppose the key lesson here is that everything is awful and you should feel sad now. Buy my books.
What is the difference between originalism vs. textualism vs. living constitutionalism? ↩︎ ↩︎ ↩︎ ↩︎ ↩︎
Does Judge Jackson Have a Judicial Philosophy and if so is it Originalism? ↩︎
Fine. Yes, I do. And they did. https://www.supremecourt.gov/about/traditions.aspx ↩︎
Congress’s Power over Courts: Jurisdiction Stripping and the Rule of Klein ↩︎