A Gedankenexperiment in Constitutional Interpretation

Let's suppose that, tomorrow, we all decided to amend the constitution. We completely rewrite it—not just adding a clause or two, but explicitly erasing the whole thing, and rewriting it from scratch. We go through the entire Article 5 process, and pass, not just an amendment, but an entirely a new constitution.

And, here's the catch—it's IDENTICAL to the one we had before.

What would this mean for constitutional interpretation?

I confine my remarks to the textualist school, because I think the results are the most interesting. However, note that the differences between the interpretive schools are much less meaningful when so little time has passed since the constitutional event.

Approach 1: The words of the constitution should be interpreted by their current meanings in 2008.

Approach 1 assumes that the people signing off on the constitution are interpreting it in light of the current (2008) meaning of the words. Thus, only those meanings are relevant. Under this approach, Justice Scalia would pick up a new dictionary (I like the AHD-4) and reconstruct the meanings of the various provisions from scratch.

Approach 2: The words of the constitution should be interpreted as before.

Textualism doesn't have to ignore context. If the 2008 Constitution is the same as the previous one, maybe the people of 2008 America intended to create the same constitution they currently have. They didn't want to change anything. Instead, they are ratifying the constitution as it currently exists—that is, with the Supreme Court's precedent to date.

Followers of this approach would have to explain why the American people signed off on the unchanged constitution. But there are a number of possible reasons for this. Maybe they just wanted to get rid of the "dead hand" problem by creating 2008 buy-in. Or maybe they just wanted to share an extraordinary moment of civic-mindedness—a formal affirmation of the centrality of the Constitution, and of our participation in it as American citizens (put this way, I wouldn't mind signing it myself).

The strangest thing about this approach is that it might have the effect of prohibiting the Court from overruling its pre-2008 precedent, because their prior interpretations have been ratified as more than mere interpretations- they are now "part of the Constitution" in a way that prevents a textualist from rethinking them. Suddenly Roe becomes part of the Textualist canon.

Approach 3: Only well-known Supreme Court precedent is good.

The idea here is this: we can only import precedent as part of the "original meaning" of the 2008 constitution when the American people know about it. If they don't know about it, they can't be signing off on it, and we have to look at the 2008 meanings of the words.

With this approach, the most well-known cases are probably still good—the blockbusters of Supreme Court jurisprudence. Polls might help determine which cases count. At the very least, I would suggest Marbury, Roe, and Brown—the cases most people know about. Also probably good are free speech cases prohibiting prayer in schools and other cases on currently hot-button issues. You might also toss in anything that appears routinely on television, like Miranda.

Approach 4: The constitution means what people thought it meant in 2008. Prior precedent is only good insofar as "the people" know about it, and non-existent precedent can be good if people think it exists.

In this approach, we largely follow the approach in 3 regarding superprecedents and the like. However, we modify that approach by relying only on popular ideas of what the constitution currently "says." That is, it doesn't matter what the current law is, it only matters what people think it is. That, and only that, is what the 2008 generation ratified.

Although this approach is, perhaps, more theoretically defensible than Approach 3, it is decidedly more difficult to implement or predict. Want to have an abortion? Well, we can't only look at Roe and that line of cases—instead, we look at the (probably simplified) popular idea of what those cases say. That might well be "you can always have an abortion." Likewise, people might think they have a right to produce obscene pornography, because it is extremely prevalent, is similar to protected material, and is rarely prosecuted anymore. These rights become "constitutional" rights, because they are what people think they are ratifying in 2008.

Similarly, there might be things that people think are part of the Constitution, as currently interpreted, but in fact are not (I am indebted to Conrad Deitrich for this idea). This would include not only construed or penumbra rights (association, privacy), but rights that are purely popular fictions ("I know my rights, you can't do this to me.") These might include, for example, a right to absolute control over a child's education, or a right to commit suicide.

Also included might be certain statutes so old that people think of them as constitutional, like various procedural provisions of the Judiciary Act, or even the current system of trial and appellate courts.

Approach 5: Total reset to 1789 (and times of relevant amendments).

This last approach would be appropriate if one viewed the passage of the 2008 Constitution as a repudiation of Supreme Court precedent. Under this approach, we would eliminate all precedent and rebuild from an originalist viewpoint. The more tenuous interpretations (Griswold, Roe, some of the New Deal cases) would likely be eliminated under this approach, whereas older precedent (and the more recent textualist cases, like Crawford) would remain more constant. Scalia and Black decisions would be enshrined, and Douglas would vanish from the face of the earth.