waluchows —living tree constitutionalism

WALUCHOWS —LIVING TREE CONSTITUTIONALISMLIVING TREE CONSTITUTIONALISM by Wil WaluchowReview by: LARRY ALEXANDERLaw and Philosophy, Vol. 29, No. 1 (January 2010), pp. 93-99Published by: SpringerStable URL: http://www.jstor.org/stable/27765866 .

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Law and Philosophy (2010) 29:93-99 DOT 10.1007/s 10982-009-9051-4

? Springer 2009

LARRY ALEXANDER

WALUCHOWS ?LIVING TREE CONSTITUTIONALISM BY LARRY ALEXANDER

(Accepted 29 April 2009)

Wil Waluchow contends that constitutions like the Canadian Charter or the U.S. Constitution are best viewed as 'living trees', the content of which is best elaborated by judges employing common law methodology. Waluchow's organic metaphor is apt, for like living trees, constitutions should, he

contends, be capable of change over time. Yet, again like living trees, constitutions are rooted in and draw their nutrients from the soil of the community's constitutional morality.

Waluchow is an able exponent of a particular kind of defense of both constitutionalism and judicial review. Both are under attack. Jeremy Waldron, for example, is a leading opponent of both. Others?the so-called 'popular constitutionalists' like

Larry Kramer and Mark Tushnet?are critics of judicial review but not of constitutionalism itself.

Waluchow gives a fairly standard account of the virtues of constitutions. Although they needn't be formally entrenched, constitutions typically are so in order to settle the rules of the

(governmental) game and to protect minority rights against panicked majoritarian reactions (pp. 44-46).

One natural way for constitutions to achieve these ends is by settling these decisions once and for all?fixing the meaning of these settlements. Waluchow, however, rejects 'fixed view' ac counts of constitutional meaning (60 et seq). That meaning should not be fixed by what the constitutional authors intended

by their text at the time of authorship (originalism), or by what

they would have intended by it if apprised of current contro

versies, conditions, and knowledge (hypothetical intent). He



94 LARRY ALEXANDER

levels the ordinary criticisms of originalism?doubts about group intentions; the difficulty of discerning the intentions of those in the distant past; the various levels of generality at which intentions can be characterized. And he points out that

hypothetical intent accounts are not only indeterminate but also notoriously difficult to justify: Why should we care what a

group of past individuals would have done (as opposed to did, or as opposed to should have done)?

Moreover, the focus of originalists (and proponents of the authors' hypothetical intentions) raises the question of consti tutional authority. Why should twenty-first century Canadians or Americans be governed by the views of past genera tions?their 'dead hands', so to speak? Even if there was uni versal consent at the founding to be so bound?which there was not?universal consent in the present has surely not been obtained (140 et seq).

This problem of authority, Waluchow argues, stems from

viewing the constitution as having a meaning fixed in the past by its authors rather than viewing it as a living tree' that embodies the community's 'constitutional morality'. The latter is the community's authentic moral values and commitments. It is not the same as the community's episodic moral opinions.

Nor is it the same as individuals' authentic moral values and commitments, much less individuals' moral opinions. Finally, it is not the same as true morality.

And where is this 'constitutional morality' to be found? It is to be found in the constitution, but also in the judicial prece dents derived therefrom, as well as in subordinate legislation. For although judicial decisions may be attempts at determining a constitutional morality that is independent of those decisions, the decisions, once made, will themselves shape that constitu tional morality, albeit only incrementally (p. 233). Over time, constitutional morality will thus both shape and be shaped by judicial decisions, as well as by other political decisions that are not formally constitutional but that are influenced by and in turn influence constitutional morality. Waluchow believes that he has thus shown both why con

stitutions have authority and why judges should be the ones to



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enforce constitutions. Constitutions possess the authority of the current community's own authentic moral values, which are

surely authoritative for the community. And judges are better than legislators in enforcing the community's constitutional

morality for several reasons: Their training as judges equips them to engage in the very type of reasoning required to discern constitutional morality?ascertaining and weighing conflicting general principles; drawing analogies and distinctions; testing results against covering principles; etc. (pp. 231; 264-265).

Moreover, judges deal with individual cases, whereas legisla tors, in enacting general rules, can easily overlook how those rules might conflict with constitutional morality in specific cases

(pp. 234-235). Finally, judges are likely to be more impartial than legislators in considering such conflicts (p. 235).

One final point that Waluchow makes is that having judges enforce the community's constitutional morality rather than their own views of true morality is a surer protection of

minority rights as well as more democratic and less paternal istic. The community's constitutional morality is likely to pro tect those rights, even if a momentary, inauthentic political decision is in conflict with them. For the former is the product of many decisions spanning many years (pp. 237-238).

That then is Waluchow's theory in a nutshell. It is an attractive blend of democratic sentiments and realism about

legislative shortcomings. It reconciles constitutionalism with

democracy and justifies judicial review. It is well-argued and considers a substantial number of objections.

Despite its many virtues, however, Waluchow's theory seems to me to be ultimately untenable. My objections can be boiled down to two principal ones. First, I believe that common law constitutionalism is necessarily parasitic on some other notion of what a constitution is, a notion that has primacy over

Waluchow's. Second, I reject the notion that the community has a constitutional morality or a political morality that does not ultimately reduce either to raw moral opinions, somehow

aggregated, or to true morality; and only the latter has the kind of depth Waluchow's methodology requires. I shall take up these objections in turn.



96 LARRY ALEXANDER

Waluchow, at times, writes as though the constitution is

entirely reducible to the community's constitutional morality, and that the latter consists of principles that flow from not only the constitution but also from precedents and other political decisions, principles that explain why the law is as it is (p. 227). Yet, in order for these principles to have something to explain, there must be content to the constitution (and the other legal

materials) that is independent of those principles and that

provides the grist for those principles' construction. But what determines that content?

Let us imagine that the Charter or the U.S. Constitution has

just been adopted, and the first judicial case has arisen under it. How should a judge decide that case? The only source for constitutional morality at that point in time is the constitution itself. But what is it?

Now originalists have an answer to that question, one that I believe is correct. For them, the constitution is its text, inter

preted to reflect its authors' intended meaning. After all, the text did not descend from Mt. Sinai. It was authored by historical

figures using a natural, organic language, whose meanings were the products of what its users intended to signify thereby. It was, in that respect, not different in kind from a set of instructions on how to build a bridge authored by the engineers who were given the task of determining those instructions.

It would be decidedly odd if the judge with the first case

arising under the constitution and cognizant not only of the text but also of its authors' intended meaning were to ignore that intended meaning and decide the case invoking 'constitu tional morality'. If the constitutional morality derives from the constitution?and if the constitution is a dateable set of instructions authored by actual people?then constitutional

morality and the originalist's constitution must be the same. Now suppose the judge gets the constitutional meaning

wrong. We then have a precedent at odds with our constitution. And that erroneous precedent, if followed, could cause long lines of precedent to diverge from the original meaning. Does that mean that we then would have a 'constitutional morality' that differed from the originalist's constitution?



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Not necessarily. We would, of course, if apprised of the fact that some of our constitutional precedents were based on

misinterpretations of the constitution, have to decide whether those precedents should nonetheless be followed. That is a well known and much mooted question in originalist circles. Still, however the question is answered, there is no reason to think some new constitutional morality has emerged. Rather, there is

just the constitution, properly interpreted, and the precedents based on it, some erroneous.

What may suggest otherwise is this. All law rests ultimately on acceptance of its authority. Constitutions' status as law rests, not on consent in the ordinary sense, but on acceptance. And one can, in the present, accept as authoritative a consti

tution?interpreted according to the intended meaning of its authors?that was authored and promulgated in the distant

past. Indeed, one may accept such a dated constitution as

currently authoritative despite believing that it is far from

morally ideal. One may accept it because it is better than having anarchy and is the best constitution that others also accept (for the same reasons). Indeed, a non-ideal, dated constitution can be quite stable.

Yet, just as the authority of the historical constitution rests on (contemporary) acceptance, erroneous precedents?prece dents that misinterpret the constitution's intended mean

ing?may come to be accepted as 'constitutional' for similar reasons, particularly if they reach popular results. But again, this elevation of what were originally constitutionally erroneous

precedents to constitutional status is not the product of any mystical principles of 'constitutional morality'. And a precedent that has not yet come to be accepted as constitutional can be

repudiated by subsequent courts on the ground of inconsistency with the constitution.

When Waluchow repudiates originalism, he saps the con stitution of its substance. On day one, the day the constitution is promulgated, it either means something or it does not. For constitutional morality to get a grip, the constitution must mean something; and that meaning cannot be provided by constitutional morality.



98 LARRY ALEXANDER

To be sure, originalism faces some (though not all) of the

problems Waluchow identifies?most formidably, the group authorship problem. (Statutory interpretation faces the same

problem; and 'textualism' is not an answer.) But if Waluchow were to attend, not to moral issues, but to the 'constituting the

government' and 'settling the rules of the game' functions of

constitutions, he would see that recourse to 'constitutional

morality' is quite unhelpful as a methodology. Constitutions are just sets of instructions written by specific individuals, and those instructions are typically about matters other than moral

rights. But decoding the non-moral instructions and decoding the moral ones are both still decoding those authors' instruc tions.

My second objection is to the notion of a community's constitutional morality. I have written critically about Dw?r kin's notion of legal principles?principles spawned by the

marriage of true moral principles with ordinary legal materials. I believe in true moral principles. And I believe in posited legal

materials. (I've observed them myself!) Moreover, I believe that the application of the moral principles is affected by the pres ence and content of the posited legal materials?just as it is affected by many other (most? all?) facts about the world?and that the content of the posited legal materials surely should be

guided by the content of the moral principles. But those are the

only relationships true moral principles have with posited legal materials. They cannot 'mate' to produce normative principles of a third kind.

Waluchow's 'constitutional morality' looks very much like Dworkin's legal principles. Waluchow distinguishes constitu tional morality from true morality, just as he distinguishes it from the community's moral opinions (pp. 226-227). At times, he characterizes it as the community's 'moral commitments', those that its constitution and other legal materials exhibit (p. 224). But this is, of course, a somewhat metaphorical charac terization.

In any event, I am trebly skeptical regarding this assertion.

First, I am skeptical that the constitution and other legal materials represent a community's 'moral commitments'. They



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are what they are, more or less entrenched instructions issued

by particular sets of authorities in response to particular problems, controversies, etc.

Second, I am skeptical that judges have any advantage over more representative bodies in ascertaining the community's moral commitments (as opposed to interpreting what instruc tions have been posited by specific authorities). Finally, I am

most skeptical of the claim that what the democratic authorities have prescribed should be overruled by judges, not in the name of true principles of morality, and not in the name of some

posited rule, properly interpreted, but rather in the name of the

community's moral commitments.

University of San Diego Law School, 5998 Alcala Road, San Diego, CA 92110, USA E-mail: [email protected]



waluchows —living tree constitutionalism

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