Introduction: constitutionalism and democratic authority
The conflict between various versions of “originalism” and “living constitutionalism” has defined the landscape of constitutional theory and practice for more than a generation, and it shows no sign of abating. Although each camp has developed a variety of methodological approaches and substantive distinctions, each one also returns to a core concern: the democratic authority of constitutional review. The late Justice Scalia crystallized the originalist concern in his dissent in Obergefell v. Hodges: “It is of overwhelming importance . . . who it is that rules me. Today’s decree says that my Ruler, and the Ruler of 320 million Americans coast-to-coast, is a majority of the nine lawyers on the Supreme Court.” The concern voiced by Scalia is, in a word, usurpation—the arrogation of the right to rule by the judiciary, invoking the authority of the Constitution’s “We the People,” but responding, in fact, to the vicissitudes of present-day party politics, social movements, and what Scalia once famously called “Kulturkampf.” On the living-constitutionalist side, the core concern is the Constitution’s legitimacy in the eyes of those it rules today. Here, too, it might be said that the question remains “who it is that rules me.” But living constitutionalism holds that “my Ruler” cannot legitimately be the mummified hand of those who ratified constitutional text long ago, when “the people” was restricted to adult white males (and often to property holders) and formal discrimination on racial and other grounds was widespread. Whatever “equal protection” or a “right of the people” might have meant to their ratifiers, the argument goes, legitimacy re-quires that they be acceptable to a twenty-first century polity when they are invoked today to weigh the constitutionality of state action.
Usurpation of past lawmaking by present-day interpreters, or the tyranny of the dead over the living: this dilemma has seemed insoluble. In acknowledging the appeal of the contending positions, scholars and judges have staked out and criticized a variety of compromise formations, including “living originalism,”“faint-hearted originalism,” and versions of “democratic constitutionalism” in the original theory of constitutionalism which the demos is conceived of as arguing over the meaning to be given today to the inherited text of fundamental law.
For all the attention to the legal culture and linguistic practices of the Founding Era that has resulted from the prominence of originalism, comparatively few scholars have focused on the original idea of constitutionalism. What legal and political significance did the act of constitution-making have for the drafters and ratifiers of the U.S. Constitution (and, earlier, the state constitutions)? How might that historical understanding illuminate today’s debates, not just over the nuances of interpreting the constitutional text, but also over political legitimacy in a constitutional order? Richard Tuck’s The Sleeping Sovereign is not a work of constitutional theory, but rather a careful historical reconstruction of the “invention” of modern democracy—including, centrally, a discussion of the authority that popular constitution-making was understood to have at the Founding. Nonetheless, its implications for contemporary constitutional debates are arresting. In a work that contains only a few tentative closing words about the last century-plus of constitutionalism, Tuck shows that today’s originalism, for all its talk of fidelity to law’s origins, is profoundly unfaithful to the very theory of constitutional self-rule on which it made best sense in the first place.
If today’s originalism contradicts its own commitment to constitutional self-rule, though, living constitutionalism fares little better. Tuck’s reconstruction shows that the original purpose of constitution-making was to enable the people themselves to author their fundamental law, rather than leaving that legislation to the decisions of government officials and well-connected elites. Tuck’s account makes it difficult to avoid the conclusion that today’s living constitutionalism fails in both theory and practice to avoid de facto constitutional lawmaking by officials and elites, fairly inviting familiar charges of usurpation—just as today’s originalism fairly invites charges of upholding the tyranny of the dead.