We have all heard, read, and (probably) argued a good deal lately about the "judicial philosophy" of nominees to and Justices of the Supreme Court of the United States. (1) Senate staffers, pundits, "big media" journalists, and bloggers have scoured the sources, including college research papers, job applications, appellate briefs, opinions, and even thank-you notes (2) looking for clues (or smoking guns). What would really be useful, though, are more documents like Chief Justice William H. Rehnquist's essay The Notion of a Living Constitution. (3)
This short piece was delivered as the Will E. Orgain Lecture and then published thirty years ago, back when Rehnquist was still the "Lone Ranger" (4)--"the Boss," and not "the Chief," to his clerks--and a relatively junior Associate Justice. And, not taking anything away from Princeton graduate Samuel Alito's senior thesis on the Italian Constitutional Court, (5) or now-Chief Justice Roberts's article exploring the limits on statutory standing imposed by Article III, (6) Rehnquist's article is about as clear, succinct, and coherent a statement of judicial philosophy as one could want. The members and editors of the Harvard Journal of Law & Public Policy and the Texas Law Review deserve our thanks for their initiative and generosity in reproducing this important, provocative, and--to many of us--compelling document.
Now, it is a challenge for anyone--even one of the great Chief Justices of the United States (7)--who ventures into the "Living Constitution" debate to identify with reasonable precision just what it is that one is defending or debunking, if only to avoid the unenviable, "necrophil[iac]" position of playing partisan for a "dead" Constitution. (8) After all, as Rehnquist was happy to concede, there seems no reason to resist what he called in his essay the "Holmes version" of the Living Constitution, that is, the observation that, in many cases, "[t]he framers of the Constitution"--like those who "framed, adopted, and ratified the Civil War amendments"--"wisely spoke in general language and left to succeeding generations the task of applying that language to the unceasingly changing environment in which they would live." (9) He might even have agreed (over a "Miller's Lite," perhaps) (10) with his longtime judicial sparring partner, Justice William Brennan, that "the Constitution is not a static document whose meaning on every detail is fixed for all time by the life experience of the Framers." (11) And although we can be sure he would have rolled his eyes at Justice Louis Brandeis's image of the Constitution as a "living organism," he probably would have agreed readily that the Constitution "is not a straight-jacket." (12)
For then-Justice Rehnquist, the "Notion of a Living Constitution" was not to be resisted out of pious reverence for the Founders' insight into the moral, economic, and social challenges facing late-twentieth-century society. (13) Nor did his critique purport to be the product of a tight deduction from premises relating to the very nature of a written constitution. He was not--to use Professor Sunstein's term (14)--a "fundamentalist," or even a thoroughgoing, principled "originalist." He did not fail to observe and absorb the obvious fact that ours is a very different world from that of the Framers.
To understand Rehnquist's critique of the Living Constitution--and, more generally, his judicial philosophy--it is essential to understand that his aim was not to deny or resist constitutional change, but instead to insist and, to the extent possible, ensure that the people--"We the People," the "ultimate source of authority in this Nation" (15)--acting through their politically accountable representatives, retain the right to serve (or not) as the agents of and vehicles for that change. What animates Rehnquist's essay--and, indeed, his career on the Court--is not a misplaced attachment to stasis, or a slavish adherence to ideological formulae, but a clear-eyed appreciation for the tension that can exist between the "antidemocratic and antimajoritarian facets" of judicial review--a power that, he reminded us, "require[s] some justification in this Nation, which prides itself on being a self-governing representative democracy" (16)--and the "political theory basic to democratic society. …