A party or a government which comes to power swearing on the constitution but does not share its vision is not only committing perjury, but is profoundly anti-republic. Note: This article was first published on January 27, and was republished on November 26, to mark Constitution Day.
The republic has never felt more endangered than it does at Justice, liberty, equality, fraternity — these progressive values in the constitution are the last defence of the republic. It is clear, however, that these are not values shared by the RSS from the moment of its inception and that indeed, the RSS regards these as an obstacle to realising its own vision of the country. In the last couple of years, the ABVP, supported by pliant university authorities, has stopped several campus events which explicitly set out to celebrate the constitution or Indian democracy, such as one at the Delhi School of Economics in August and another at Allahabad in September , titled Jashn-e- Samvidhan.
It is only an organisation which is itself deeply anti-national and anti-democratic that can object to others celebrating the constitution or democracy. If people are to be reduced to their caste or religious identity, as Hegde, the Karni Sena , and various other fronts of the RSS want, it is not only the term secularism which will go, but equality, liberty and fraternity as well.
For secularism is nothing but the equality of all religions in the public sphere and fraternity across religions and caste as practiced by individuals in their public and personal capacities.
The constitution has never been a frozen document, and it has always had multiple authors. Even at the time it was framed, the text was not a closed document. There were at least four elements that informed the making of the constitution — existing administrative provisions such as those embodied in the Government of India Act of , internationally accepted constitutional principles, the ideals of the freedom struggle, including universal adult suffrage, and the events that were taking place in a country slowly emerging out of World War II, famine and above all, Partition.
At one level, the similarities with the Act make the constitution appear almost pre-ordained. Emphasis on original public meaning also enabled originalists to argue that the abstract language of the Privileges or Immunities Clause warranted judicial protection of a host of economic liberties, either as a matter of constitutional interpretation or construction. Here was the beginning of originalism as a sword, an offensive justification for judges to advance conservative values against a hostile democratic process.
Further offensive potential was implicit in the argument from writtenness—the distinction between judicial restraint and constitutional constraint. The point of a written constitution, according to New Originalists, was to constrain the power of government, including but not limited to the power of judges.
If other government actors exceeded the constraints imposed by that Constitution, it was the duty of judges acting under it to enforce those constraints even against more democratically accountable officials and institutions.
In such circumstances, judicial restraint—defined as judicial forbearance—was not cause for celebration; it was an abdication of duty. Only quite recently have originalists begun to elaborate on this argument explicitly, and its terms are still evolving.
Mason L. Whatever term the literature settles on, this principle has been latent in the New Originalism for some time. It played an important animating role in both Heller v. District of Columbia [44] [44].
District of Columbia v. Heller, U. Sebelius , [45] [45]. Sebelius, U. Comstock, U. Raich, U. More than any nice theoretical distinction, it is this celebration of conservative judicial activism in an era of conservative ascendancy on the federal bench that distinguishes the New Originalism from the Old.
See generally Jack M. Even Roe v. Wade , [48] [48]. Roe v. Wade, U. See Jack M. Balkin, Abortion and Original Meaning , 24 Const. Having thus defined originalism nearly out of existence, Balkin declares himself a card-carrying member of the club.
Most liberal constitutional theorists have not gone so far. Instead, they have argued that the New Originalism protects one flank only by exposing the other. Original meaning is both more determinate and more coherent than attempts to discern the collective intent of multi-member bodies like the Philadelphia and state ratifying conventions.
It is also less vulnerable to dead-hand objections because original public meaning is so capacious that it gives the present generation a large role in shaping its application through constitutional construction. See generally Colby, supra note 41, at —41; Peter J. At the same time, however, original-public-meaning originalism, by conceding the existence of large gaps and open areas in original meaning, gives up both of the principal normative claims that set Old Originalism apart.
It fails to meaningfully constrain judges because it licenses free-wheeling constitutional construction of open-ended constitutional text without reference to original meaning. It also severs the content of contemporary constitutional law from the democratic will of those who ratified it, whose expectations and intentions New Originalist judges are fully permitted to ignore. Cross, The Failed Promise of Originalism 40—42 Or so critics of New Originalism have contended.
See generally Baude, supra note 39, at providing positive law framework for originalism ; Stephen E. Originalism was a critique of legal practice, not a description of it. Even well into the conservative legal ascendancy of the s and s, Antonin Scalia wrote:. But if New Originalism is fully or even mostly compatible with a living Constitution, as its liberal critics contend, then the claim that originalism is our law becomes much more plausible.
Plenty of New Originalists and fellow travelers have worked hard to show the consistency of their approach with widely admired decisions that had previously been thought inconsistent with originalism. See generally David R. Decisions that were previously taken as obvious deviations from original intent and expectations might be at least consistent with original public meaning.
To the extent that such decisions acknowledge the ultimate authority of original meaning, they might actually be taken to confirm that originalism is our law, even if their conclusions about original meaning are incorrect or insincere. This, in any case, is the argument of positivist originalism—a development made possible mostly by the internal logic of constitutional theory—but one that arrives just in time to be deployed by a newly reinforced conservative Supreme Court majority.
It might seem that the inclusive definition of originalism adopted by the positivists to render their descriptive claims plausible would deprive their argument of all critical edge, but they have developed ingenious arguments to the contrary.
The rise of positivist originalism nicely illustrates the importance of intellectual forces internal to constitutional theory, as well as sheer contingency, in driving theoretical evolution over time. The staying power of this approach, I suspect, will be more strongly influenced by external social and political forces, especially the ideological balance of the Supreme Court and the pace and direction of constitutional change the new majority of that Court pursues.
Those forces will not fade away any time soon. Balkin has the better of this exchange, but the implications of his argument for positivist originalism specifically are unclear. Time will tell, though the confirmation of a vocally originalist junior justice augurs well for the future of originalism in general.
Besides launching the career of positivist originalism, the debate over New Originalism has reopened, or at least reoriented, the dialogue between constitutional theory and history. If we're trying to figure out what a document means, what better place to start than with what the authors understood it to mean? Also, as a matter of rhetoric, everyone is an originalist sometimes: when we think something is unconstitutional-say, widespread electronic surveillance of American citizens-it is almost a reflex to say something to the effect that "the Founding Fathers" would not have tolerated it.
And there are times, although few of them in my view, when originalism is the right way to approach a constitutional issue. But when it comes to difficult, controversial constitutional issues, originalism is a totally inadequate approach. It is worse than inadequate: it hides the ball by concealing the real basis of the decision. But if the idea of a living Constitution is to be defended, it is not enough to show that the competing theory-originalism-is badly flawed.
You can't beat somebody with nobody. So I will describe the approach that really is at the core of our living constitutional tradition, an approach derived from the common law and based on precedent and tradition. Pick up a Supreme Court opinion, in a constitutional case, at random. Look at how the Justices justify the result they reach. Here is a prediction: the text of the Constitution will play, at most, a ceremonial role.
Most of the real work will be done by the Court's analysis of its previous decisions. The opinion may begin with a quotation from the text.
Then, having been dutifully acknowledged, the text bows out. The next line is "We"-meaning the Supreme Court-"have interpreted the Amendment to require.
Where the precedents leave off, or are unclear or ambiguous, the opinion will make arguments about fairness or good policy: why one result makes more sense than another, why a different ruling would be harmful to some important interest.
The original understandings play a role only occasionally, and usually they are makeweights or the Court admits that they are inconclusive.
There are exceptions, like Heller, the recent decision about the Second Amendment right to bear arms, where the original understandings take center stage. But cases like that are very rare. Advocates know what actually moves the Court.
Briefs are filled with analysis of the precedents and arguments about which result makes sense as a matter of policy or fairness. Oral argument in the Court works the same way. The text of the Constitution hardly ever gets mentioned. It is the unusual case in which the original understandings get much attention.
In constitutional cases, the discussion at oral argument will be about the Court's previous decisions and, often, hypothetical questions designed to test whether a particular interpretation will lead to results that are implausible as a matter of common sense.
The contrast between constitutional law and the interpretation of statutes is particularly revealing. When a case concerns the interpretation of a statute, the briefs, the oral argument, and the opinions will usually focus on the precise words of the statute.
But when a case involves the Constitution, the text routinely gets no attention. On a day-to-day basis, American constitutional law is about precedents, and when the precedents leave off it is about common sense notions of fairness and good policy. What's going on here? Don't we have a Constitution?
We do, but if you think the Constitution is just the document that is under glass in the National Archives, you will not begin to understand American constitutional law. Our nation has over two centuries of experience grappling with the fundamental issues-constitutional issues-that arise in a large, complex, diverse, changing society. The lessons we have learned in grappling with those issues only sometimes make their way into the text of the Constitution by way of amendments, and even then the amendments often occur only after the law has already changed.
But those lessons are routinely embodied in the cases that the Supreme Court decides, and also, importantly, in traditions and understandings that have developed outside the courts.
Those precedents, traditions, and understandings form an indispensable part of what might be called our small-c constitution: the constitution as it actually operates, in practice. That small-c constitution-along with the written Constitution in the Archives-is our living Constitution. There are, broadly speaking, two competing accounts of how something gets to be law. One account-probably the one that comes most easily to mind-sees law as, essentially, an order from a boss.
The "boss" need not be a dictator; it can be a democratically-elected legislature. According to this theory, the law is binding on us because the person or entity who commanded it had the authority to issue a binding command, either, say, because of the divine right of kings, or-the modern version-because of the legitimacy of democratic rule. So if you want to determine what the law is, you examine what the boss, the sovereign, did-the words the sovereign used, evidence of the sovereign's intentions, and so on.
Originalism is a version of this approach. As originalists see it, the Constitution is law because it was ratified by the People, either in the late s or when the various amendments were adopted.
Anything the People did not ratify isn't the law. If we want to determine what the Constitution requires, we have to examine what the People did: what words did they adopt, and what did they understand themselves to be doing when they adopted those provisions.
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Rationale behind the Amendments The very basic and explicit reason behind the incorporation of amending procedure is that no document can be made perfect at a time. By Simple Majority - There are some articles in the Constitution which can be amended if the parliament signifies its willingness by a simple majority.
These provisions only require simple majority to be amended. By Special Majority - We have two bifurcations in this category.
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