Michael C. Dorf · September 2009
77 GEO. WASH. L. REV. 1631 (2009)
This Article questions the view that constitutional rights generally entrench deep values against future backsliding. Constitutional rights sometimes work that way, but, in important respects, the American experience has been quite different. Constitutional rights are typically established as the culmination of a struggle to change the status quo, rather than to enshrine well-accepted fundamental values. For example, the Nineteenth Amendment, which granted women the right to vote, did not take a preexisting shared norm of sex equality and entrench it against later backsliding. Rather, it changed a norm of patriarchy and was so successful that it has arguably become unnecessary.
The antibacksliding account of constitutional rights is incomplete in another respect. Sometimes the enshrinement of constitutional rights succeeds almost immediately, but rights (and other constitutional provisions) can also lay dormant for decades, until a later generation discovers them. Perhaps our most cherished constitutional principles—those enshrined in the First and Fourteenth Amendments—fall into this latter category. Such constitutional provisions may be best understood, at least in retrospect, as aspirations for future change, rather than as a hedge against such change.
In a nutshell, this Article argues that aspirational constitutional rights do not burden later generations with the values of earlier generations because the values only become realized if the later generation decides to make them its own. Thus, for example, the Reconstruction Amendments started to become a reality in the 1950s and 1960s because American society by that time had begun to value racial equality. If we think of an aspirational constitutional provision as a kind of message in a bottle from the past, we need not worry about the dead hand problem because we are the ones who decide whether to break open the bottle and live by its message. Indeed, to a large extent, we are also the ones who say what that message is.
This Article proceeds in four parts. Part II explains why constitutionalism poses a prima facie threat to future generations, why structural provisions can nonetheless be normatively justified, and why the antibacksliding justification for constitutional rights is at least plausible in some contexts.
Part III describes the limits of the antibacksliding justification. Focusing on three episodes in the American experience, it shows how the proponents of new constitutions and constitutional amendments typically aspire to reform the legal status quo, not entrench it, even if they use entrenchment as the chief mechanism of reform. Part III also explains how constitutional provisions often have an aspirational dimension and that the reforms they aim to achieve may not come to pass for generations.
Part IV offers a tentative normative defense of aspirational constitutionalism. It explains why aspirational constitutionalism does not simply involve an earlier generation imposing its normative views on a later one. This Part also develops an account of the Supreme Court as roughly reflecting contemporary attitudes and values at any given time.
Part V turns to jurisprudence. It explains that a shift from the antibacksliding account of constitutional rights to the aspirational account entails a shift from originalism to some form of living constitutionalism and a corresponding shift in the burden of justification. Instead of overcoming the dead hand problem, judicial enforcement of aspirational rights must overcome—or at least grapple with—the countermajoritarian difficulty.
This Article concludes by locating these observations within a growing body of academic literature that maps the appropriate respective domains of originalist and nonoriginalist methodology.
