In republican constitutionalism, the people make a firm precommitment to a particular form of governance. Thus, they pass a constitution whose provisions prohibit certain actions in later periods. This process of self-constraint can be seen in republican terms as an exercise in popular sovereignty. In addition, if the constitution is originally enacted under a good process, such as one having relatively stringent supermajority rules, it is likely to improve the welfare of the people over the course of the nation’s history. The distinctive interpretative method of republican constitutionalism is originalism: the meaning chosen by the people when the constitution is passed binds the people at later times.
In contrast, living constitutionalism is the distinctive interpretive method of the constitution of a mixed regime, which includes an aristocratic element. Support for a mixed regime can be traced to Aristotle, and, in modern constitutionalism, the aristocratic element is supplied by the judiciary, whose current judgments constrain the people.
The aristocratic tenor of the judiciary is unmistakable. For instance, the current justices of the Supreme Court were all educated at either Harvard or Yale Law School. They are all upper middle class lawyers, the large majority of whom are multimillionaires. Our aristocracy is the well-off cognitive elite and the judiciary is part of it. Studies have shown that the justices’ decisions–now and in the past–have tended to be disproportionately influenced by the views of their social class.
Defenders of mixed regimes have advanced many arguments in support of this form of governance: aristocrats should be given additional weight in politics either because they are wiser (an ideal argument) or because they have greater power (a realist argument). Under the first view, aristocrats provide helpful ballast to the rashness and mutability of the populace. The constitution of a mixed regime thus provides the stabilizing social influence and protection of rights through aristocratic judgment—the same benefits that a republican constitution tries to assure through popular precommitments. While I believe that republican constitutionalism is superior in the United States, the mixed regime constitution has respectable arguments in its favor.
But, whatever the abstract virtues of a mixed regime, advocates of living constitutionalism must reconcile the aristocratic element of living constitutionalism with the republican founding of the United States and the decided hostility to political elites throughout American history. Perhaps for this reason defenders of living constitutionalism attempt to mask its essentially aristocratic nature. For instance, they may argue that the decisions of the justices reflect the will of the people, although as Lawrence Baum and Neal Devins show, this claim is not true.
More recently defenders of living constitutionalism have tried to give it a democratic spin by arguing that constitutional decisions are the product of social movements. But social movements do not eliminate the aristocratic element of the regime of living constitutionalism. The justices remain as gatekeepers, deciding which of the many social movements will succeed in court and which will fail. Indeed, they may even use the timing and structure of their decisions to energize particular movements, just as aristocrats of old made common cause with populist groups of their choosing.