In constitutional law, there are a lot of isms. Textualism claims that the Constitution’s text is binding. The central idea is that judges are bound by the written words of the founding document. (Reasonable textualists acknowledge that the text is often ambiguous. What, for example, is meant by “the freedom of speech”? That is far from obvious.) Originalism, which is on the ascendancy on the current Supreme Court, insists that the Constitution should be interpreted in accordance with its original public meaning — its meaning at the time of its ratification in the late eighteenth century, and after the Civil War for the Thirteenth, Fourteenth, and Fifteenth Amendments. (Reasonable originalists acknowledge that the original public meaning is often ambiguous. What was the original understanding of the constitutional provision granting “executive power” to the president? That is not obvious.) Living constitutionalism claims that the meaning of the Constitution evolves over time, which means that the document might require states to recognize same-sex marriage now, even if it did not require that before. (Reasonable living constitutionalists acknowledge that judges can go in terrible directions. From American history, you can take your pick.) Thayerism — so named after the great Harvard law professor James Bradley Thayer — claims that judges should uphold legislation unless it is unconstitutional beyond a reasonable doubt. (Reasonable Thayerians acknowledge that under their approach, school segregation would probably have to be upheld, and freedom of speech would be far less robust than it now is. They respond that if you believe in democracy, you should accept judicial restraint, and take the bitter with the sweet.) Minimalism contends that judges should avoid abstract theories and go case-by-case, interpreting the Constitution with close reference to the particular facts. (Reasonable minimalists acknowledge that their approach leaves a lot of uncertainty, and also that in some cases they will have to get more theoretical than they would like.) In view of the proliferation of isms in the domain of constitutional law, there is strong reason to hesitate before proposing yet another. Still, I have one to offer. I do so because it has yet to be identified; because reasonable arguments can be made on its behalf; and because it helps to organize and to illuminate numerous constitutional developments over the last decades. Those developments are otherwise puzzling and unmotivated. At the same time, the approach I sketch suggests a future path for constitutional law that is unlikely to be taken, at least in the United States — but that we would do well to visualize. Constitutional law is full of surprises, and some of the surprises are good ones. In any case, theories of constitutional interpretation sometimes spread through the public, even if they do not get traction in the courts. Here is the proposal, for your consideration: Experiments of Living Constitutionalism. The central idea is that the Constitution should be interpreted to allow both individuals and groups to experiment with different ways of living, whether we are speaking of religious practices, family arrangements, sex, romance, marriage, child-rearing, schooling, or work. Experiments of Living Constitutionalism prizes individual dignity. It emphasizes the importance of learning. It cherishes diversity and plurality; it opposes (what it sees as) authoritarianism in all its forms. It is emphatically liberal in character — liberal in its emphasis on freedom and agency, especially with respect to things that people care most about. The operative phrase — experiments of living — comes from John Stuart Mill, who said this in On Liberty in 1859: That mankind are not infallible; that their truths, for the most part, are only half-truths; that unity of opinion, unless resulting from the fullest and freest comparison of opposite opinions, is not desirable, and diversity not an evil, but a good, until mankind are much more capable than at present of recognizing all sides of the truth, are principles applicable to men’s modes of action, not less than to their opinions. As it is useful that while mankind are imperfect there should be different opinions, so it is that there should be different experiments of living; that free scope should be given to varieties of character, short of injury to others; and that the worth of different
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