The dichotomy between strict constructionists and those who advocate a living; Constitution is a false one, says Yoshino.

Question: What is the challenge of Constitutional interpretation?

Kenji Yoshino: :Well I think increasingly the challenge of constitutional interpretation today is going to be how to interpret the Constitution in a polity that is increasingly diverse. So I should say there are many, many challenges. This is just my cut on it because of the issues that I’m interested in. But if you look at the Constitution, one of the things that we know about the Constitution and constitutional interpretation is that those interpretations have to change according to broad, irreversible trends in American society. So let me just give you three examples. If we have the Internet, that means that First Amendment obscenity doctrine has to change. Because obscenity doctrine used to be based on what was obscene as defined by a particular community in which you lived. But if we have the Internet, then we have one national community; and indeed a global community for that, so that’s gonna have to change. If we had a war on terror in a post-9/11 world, civil liberties is gonna have to change. And people on the other side of this – the civil libertarians – can argue until they’re blue in the face. But 20 years from now the landscape of what can be done under Fourth Amendment search and seizure, or under the Second Amendment . . . sorry, the Article II, the presidential powers provision is gonna change. When we get into my bailiwick, which is civil rights, the dominant challenge for constitutional interpretation is going to be the broad and irreversible trend of explosive pluralism in American society. So what do I mean by explosive pluralism? I mean that we used to think about race in simple black and white terms. So if you go back to Brown v. Board of Education in 1954, that was African American school children vis-à-vis white school children, and that was the debate. Now starting with the 2000 racial census we have 63 different racial categories, because we have five separate racial categories and then different permutations because you can check more than one box. That is an utterly different landscape than what we were confronting in Brown v. Board 50 years ago. Similarly Diana Eck, a professor at Harvard, has told us that we’ve never been here before with respect to the diversity of religions, because we’re now not only the most diverse religious . . . religiously diverse country in the world; we’re the most religiously diverse country in world history. And so in the same way that First Amendment doctrine is gonna have to change with respect to the Internet; and Article II is gonna have to change because of the war on terror; so too do all of the civil rights provisions of the Constitution have to take into account the fact that we’re encountering explosive pluralism within the United States.

Question: Strict constructionism vs. a “living” Constitution

Transcript:Well in many ways I think this is a false dichotomy in the sense that my particular take on the Constitution really tries to say that you can’t have it either way. So I mean it’s ridiculous to say that you are gonna be a hyper strict constructionist. And even individuals like Justice Scalia who is a strict constructionist says he’s only a fainthearted originalist or constructionist because he understands that intervening precedents have to be respected. And people who take a harder line than that, like Justice Thomas, and say we really wanna interpret it according to the text itself, ultimately end up contradicting themselves. So let me just give you an example. When he’s talking about the affirmative action cases, he says that the proper construction of the Fourteenth Amendment is that affirmative action was not allowed under the equal protection clause. Well the 39th Congress that voted out the Fourteenth Amendment also voted out requisitions for all black schools. So the exact same Congress that sent out the equal protection clause was engaged in affirmative action itself. And so it’s very hard for him to argue from an originalist perspective that affirmative action is barred by the Fourteenth Amendment. I can come up with simpler and more straightforward examples that don’t rely on particular justices. These are just arguments that no one would make on the court because they would be laughed off the court if they made it. But let’s say if I said, “Well I see provisions for the Army and the Navy in the Constitution, but I don’t see a provision for the Air Force. And so therefore the Air Force is unconstitutional and the Congress can’t create it,” no one would argue that that was the case. And so it’s quite clear that the strictest forms of strict constructionism can’t hold water. On the other hand the strong living constitutionalism view, which is to say the Constitution is whatever we want to make of it; and you know there are all these status-based exclusions from “We the People” because women weren’t allowed to vote; and you know racial minorities weren’t allowed to vote; and anyway those people are all dead anyway. So we shouldn’t be bound by the dead hand of the past, and the Constitution is what this generation chooses to make of it. It’s also specious because there’s something really important about having a written Constitution. And I think most Americans understand that the written Constitution binds us in a different way than constitutional traditions that don’t have a written Constitution attached to them, as is the case in England. So what am I then saying? What’s my theory after I’ve knocked out these different streams? Well my theory really comes from my literature background, which is to say I really think of the Constitution as a wonderful and canonical document that is worthy of our reverence; and was created in a particular moment in time, but has been received by successive generations in different ways. And so I actually want us to think about the Constitution. I mean there are differences here too, but I want us to at least engage in a thought experiment of thinking about the Constitution as if it were the works of Shakespeare. So I’m writing a book about Shakespeare and the law right now, so I’m tipping my hand a little bit. But I mean the reason that Shakespeare survives; and that Marlowe, who was his contemporary and was just as popular if not more popular in the time period in which they were both alive . . . you know Marlowe died earlier than Shakespeare did. When we think about Shakespeare and Marlowe, the reason that Shakespeare survives is because Shakespeare was simply a greater author. And he was accepted to be a greater author by successive generations. And we know that if the Constitution had had a Marlowe equivalent . . . You know if the Constitution were a weaker document that spoke less across the ages, then we would have found ways either to amend it, or to ignore it, or to do end runs around it. And we see this kind of thing happening in Japan actually, where Japan has an imposed Constitution; that it doesn’t really feel like it belongs to it as a culture; and both houses a Parliament are thinking about whether or not to revamp the whole thing because it was an imposed Constitution. And this is gonna be a big issue when we think about imposing our Constitution on various countries in the world. But what we have in the United States is not only a document that we have produced and got the consent of the people, but also a document that we regard as canonical and good. And I think that that often falls away in our constitutional debates. Maybe an easier way to look at this, given that we actually did ratify the Constitution so someone could say back to me, “Well, you know we actually took a vote on that document and that binds us, so it’s not like Shakespeare,” I guess what I would say is well don’t look at the Constitution, then. Look at the Federalist Papers that were the papers that we looked at in looking at the original intent of the founders. Those we didn’t vote on. One could argue that they had no legitimacy whatsoever in the constitutional discourse because it was written by three people who were writing propaganda for one state – New York – and it wasn’t ratified by the entire country. But nevertheless we look at the Federalist Papers all the time. And the Supreme Court, both the left and the right – justices on the left and justices on the right – cite the Federalist Papers ad nauseam. And in fact the number of citations are going up incidentally rather than down over time, which is interesting. Why is that? Well I don’t think it’s because the federalists – you know Hamilton, and Jay, and Madison – had particular insight into the framing of the document. I mean they were there, but so were many other people. I think it’s simply that this is the best document that articulates American political theory that this country has ever produced. And so it’s a good document, and that’s why it . . . we owe it our fealty. And that is why it’s emerging in all of these debates. And so that’s not a document that has democratic legitimacy. But it’s nonetheless something that we look at in order to understand our own Constitution because we believe it to be a good document. So when we’re thinking about – just to step back and take a big picture view . . . If we think about how to interpret the Constitution, what I immediately wanna do is to knock out the strict texualists and the living constitutionalists as having an overly simplified debate and say it’s always gonna be both. It’s always gonna be that the document that we began with is gonna be important and canonical. And also that the way we receive it is gonna change over time. But you know that in itself is a relatively thin or trivial statement. And I think that the richer statement is to say I want us to interpret our reception of the Constitution and the way we receive literary work like Shakespeare to say every age reinvents its own Shakespeare; but it is really important to us that it is the original Shakespeare we are interpreting. So if someone were to say, “I’ve discovered a new play,” or, “I discovered that somebody else wrote one of these plays,” that would actually make a difference. That would be consequential.

Recorded on: 11/11/07