A Darwinist View of the Living Constitution

The metaphor "living Constitution" imports terms from biology into law and, in the process, relies on biology for its meaning. A proper understanding of biology is therefore central to understanding living constitutionalism. Yet despite its rampant use by both opponents and proponents of living constitutionalism, and despite the current fervent debate over whether biology can be useful to the law, no one has evaluated the metaphor from a biological perspective. This Essay begins that inquiry in an interdisciplinary study of law, science, and philology. The Essay first evaluates the metaphor as it is currently used and concludes that, while the metaphor is biologically accurate in some ways, it contains inaccuracies and gaps that render the metaphor incomplete. A deeper exploration of the inaccuracies reveals that slight changes in focus can give rise to provocative insights: for example, the "living" Constitution "evolves" in ways that are more akin to artificial selection (and perhaps even Intelligent Design!) than Darwinian natural selection. Thoughtful attempts to fill the gaps in the metaphor lead to a richer framework for viewing and conceptualizing the document and its changes. In the end, extending the metaphor, in a way consistent with its biological roots, shows just how well a cross-disciplinary study can enlighten and enrich our understanding of the Constitution, both for those who believe that it is "living" and for those who do not. I. INTRODUCTION There is much debate, and has been for some time, over whether we have a "living" Constitution, one that adapts to changing circumstances and evolves over time. The metaphor arose and gained initial force during the Progressive Era and has been at the forefront of the debate on constitutional interpretation ever since. There is a more recent division, most prominently marked by Professor Owen Jones and Professors Brian Leiter and Michael Weisberg, over whether biology has a meaningful role to play in legal developments. Professor Jones has written many articles promoting the potential utility of behavioral and evolutionary science to law.1 By contrast, Professors Leiter and Weisberg emphatically proclaim that "evolutionary biology offers nothing to law."2 Despite the ongoing debate over "living" constitutionalism and the fervor of the new debate over the role of biology, no one has tried to connect the two. One might assume that the lack of attention is due to the metaphorical nature of the 'living" Constitution. But scholars have studied evolutionary metaphors in other legal areas, such as common law and statutory law,3 though most such studies are descriptive-even "taxonomist"-rather than evaluative.4 To my knowledge, a biological evaluation of the metaphor of a "living" Constitution-a deep exploration of whether biology can tell us something about our conceptualization of constitutional change-has never been done. That is unfortunate. The metaphor "living" Constitution appears regularly in important legal debates. It imports concepts from biology and, in the process, allows those biological concepts to shape the use and meaning of the metaphor in legal debate. Use of the metaphor implies that the Constitution has some of the traits of a living organism, in particular, that it grows and evolves. The metaphor is used intentionally to evoke biological truths as a way of informing legal understanding. It presents a normative vision of the Constitution that informs how it should be understood, interpreted, and applied.5 We ought to look critically at this metaphor and the vision it entails. If the metaphor is inaccurate, we ought to ask why, so that we can better understand its true meaning. If there are gaps, we ought to explore whether we can fill those gaps in a way that will provide a richer conceptualization of the Constitution and its meaning. That is my task here: to explore the metaphor of a "living" Constitution from a biological perspective and to evaluate whether the metaphor employs those biological implications correctly. …