William Rehnquist largely agrees with Brennan’s interpretation of a living Constitution, furthering the idea that the Constitution empowers the majority and therefore the majority are the final arbiters of the document. But he also concedes three major defects of the living Constitution: (1) being that it misconceives the nature of the Constitution, enabling not the Judiciary but the popularly elected branches of government, (2) it ignores the “disastrous experiences” (245) when the Court has embraced the contemporary (for example, Dredd Scott), and (3) asserting that the desirable goals of a society are pushed through the Judiciary, who are nonelected and lifetime tenured, is itself an unconstitutional violation of the democratic society.
From my interpretation of Rehnquist, I find that his theory, while in part rooted in Brennan’s contemporary ratification, denies the Court responsibility to enact and be held accountable for actions that by and large should be dealt with in the Legislature and Executive branches. Limiting the power and scope of the Court’s ability to declare laws unconstitutional, it seems, is the fundamental difference between Brennan and Rehnquist.
“Representative government is predicated upon the idea that one who feels deeply upon a question as a matter of conscience will seek out others of like view or will attempt to persuade others who do not initially share that view. When adherents to the belief become sufficiently numerous, he will have the necessary armaments required in a democratic society to press his views upon the elected representatives of the people, and to have them embodied into positive law.” (247) This is, by all accounts, how our democratic society works. An idea must be presented, fiercely debated, before being adopted or rejected by the majority. That majority then must elect or persuade their representatives to support the same idea. This is, in Rehnquist’s view, the proper interpretation of the Constitution; through the power of the elected majority.
I take issue with this belief, but my issues are for the most part outlined in Ronald Dworkin’s proposal so I will simply continue to that.
“The Constitutional theory on which our government rests is not a simply majoritarian theory. The Constitution…is designed to protect citizens and groups against certain decisions that a majority of citizens might want to make.” (248) Dworkin believes that Rehnquist’s argument poses a majoritarian dilemma. He insists that the Constitution is built around protecting the minority from the majority; not, as Rehnquist argues, leaving fate in the hands of the majority. The reverberations felt by American society, for example, would not have been felt by the decision passed down in Brown v. Board of Education if we were to assume that the majority held control of the Constitution. A majority of Americans and their representatives believed in separate-but-equal legislation, which the Brown case shredded.
Dworkin makes another far more important point in his theory however; he establishes the system of concepts and conceptions. He asserts that a “concept” is a general principle that is easily agreeable by most people. The Constitution, he believes, is full of concepts. A “conception” is a particular theory within a general Constitutional concept. So for example, Equality is a concept riddled throughout the Constitution that is broad and general enough to be agreeable by most people. But how we achieve equality is where people disagree. Affirmative Action allowing schools to ask for race when students fill out an application; whether equality includes the right to marry an individual of the same sex as you. Gay marriage and affirmative action are examples of “conceptions” within the particular “concept” of equality.
To further his point, Dworkin criticizes Originalism for its failure to distinguish between the two. Dworkin believes it is not appropriate to take a particular conception (such as privacy or equality) and inject it into your interpretive theory because the Constitution is not filled with conceptions; it’s filled with concepts. The particular conception that defects Originalism is original intent; “what would the Framers do?” The Constitution cannot provide an answer to this question because the Framers intent was to construct a Constitution of concepts; remaining broad and vague enough in their wording and structure to leave interpretation in the hands of succeeding generations. The Constitution is deliberately vague because it reflects concepts.
If the Constitution was filled with conceptions rather than concepts, Dworkin believes it would be a legal code. I agree with Dworkin’s reasoning and agree that the Constitution is not filled with conceptions, as time and tradition have shown. If the Constitution were a legal code, it would require revision far more often than it has seen. And if there are general concepts in the Constitution, the hard part bestowed upon each generation is to figure out how to take that concept and apply it to a concrete set of facts; a case brought before the Supreme Court. In order to do that, you need a particular conception. When it comes to deciding the particular conception, that decision is interpretation, and interpretation necessities value judgments by those the case is brought before (the judges). The concepts are general values rooted in the Constitution, but that doesn’t speak to how to apply them.