Andrew Allard '25
Editor-in-Chief
Last Wednesday, September 11, Professors Sarah Shalf ’94 and Rachel Bayefsky, hosted by the American Constitution Society at UVA Law, led a discussion on living constitutionalism. Professor Shalf, the Law School’s Director of Clinical Programs, began by offering a “practical perspective” on living constitutionalism.
Professor Shalf explained that living constitutionalism is difficult to define because academics, jurists, and politicians have developed different versions of living constitutionalism. “You end up with a lot of different versions of . . . what living constitutionalism is. And there are also different flavors among different justices, different judges, different academics in terms of how they flesh out what the theory is,” said Shalf. “It actually describes a number of different theories.”
Professor Rachel Bayefsky (left) and Professor Sarah Shalf (right).
Shalf also responded to how Professor Solum described originalism and living constitutionalism at a Federalist Society event last week. “Professor Solum would say that living constitutionalism rejects [that] the meaning the Constitution is fixed when it was ratified or it rejects that that should be binding on us. . . . Depending on what flavor of originalism and what flavor of living constitutionalism you’re comparing, they might actually have some overlap,” Shalf explained. “I’m not sure that in reality what people think originalism is and what people think living constitutionalism is are always necessarily mutually exclusive.”
Shalf continued by explaining the constraints on living constitutionalist interpretation. “You’re not just sort of making things up as you go along, but you’re looking to the Constitution trying to discern what the underlying constitutional value is. Then you’re applying those values and provisions to the modern context, in a way that reflects the diverse America that didn’t get to participate in writing the Constitution.”
This approach, Shalf explained, has defined Eighth Amendment jurisprudence since the 1950s, when the Supreme Court adopted the “evolving standards of decency” framework in Trop v Dulles.[1] “An originalist might say . . . we’re going to look at all kinds of historical evidence to see what in 1789 was considered cruel and unusual punishment,” Shalf said. But the Warren Court, which was more sympathetic to living constitutionalism, chose a different path, looking to changes in culture and legal practice among the states and globally.
The Supreme Court’s more expansive rights jurisprudence reached a high point in Roe v. Wade, an early decision of the Burger Court. But the prevalence of living constitutionalism that defined mid-twentieth-century jurisprudence ultimately resulted in a conservative backlash, Shalf explained. “There was a reaction against Roe v. Wade and also against a lot of the reforms, the Civil Rights Movement. And so a group of conservatives got together and developed a more methodological theory of originalism because they wanted to constrain the court.” That group of originalists became the Federalist Society.
Responding to the criticism that living constitutionalism is unconstrained, Professor Bayefsky explained how living constitutionalism does constrain judges, while also noting that originalism may not be as constraining as its proponents claim. Bayefsky focused on a popular living constitutionalist theory, Columbia Law Professor Philip Bobbitt’s constitutional pluralism. Bobbitt’s theory consists of six modalities—historical, textual, doctrinal, structural, prudential, and ethical—each of which judges use to decide cases. “You could see this as descriptive in the sense of—here’s how constitutional argument takes place . . . . We could also see this as normative—that these should be the accepted categories of constitutional argument,” Bayefsky explained, adding that it is common for judges to rely on multiple modalities in a single case.
Bayefsky acknowledged that constitutional pluralism may enable judges to simply follow the modality that they prefer in a given case. But she argued that multimodal arguing is already the accepted practice among judges. “Most if not all judges are, in fact, pluralists. Even in cases where judges purport to be saying, we’re drawing only on the original meaning, it’s very common to hear pragmatic arguments.” Ultimately, multimodal reasoning may be a necessary consequence of judgment, Bayefsky explained. “In the end, judging does require a certain amount of judgment. It’s impossible to completely extricate judicial discretion, and the purpose is to train judges, law students, academics, scholars, perhaps even politicians, to be thinking about how to wisely exercise their discretion based on their legal understanding and experience.”
Ironically, the debate between originalists and living constitutionalists may be the product of institutional incentives more than legal philosophy. Professor Shalf, citing the work of Professor Richard Re, pointed out that the current divide between conservatives and liberals may be realigning. “When the judges you have appointed are in the minority, then you want to constrain judicial interpretation by the judges who you don’t agree with. You want to say everything is very fixed and defined and objective . . . Whereas more expansive theories of constitutional interpretation might be adopted by the people who are in the political majority.” Professor Shalf suggested that the court’s fractured opinion in United States v. Rahimi[2] may indicate the beginning of such a realignment among the Court’s conservative justices.
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