Chief Justice Rehnquist's Enduring, Democratic Constitution

Abstract

William H. Rehnquist's essay, "The Notion of a Living Constitution," was delivered as the Will E. Orgain Lecture and then published thirty years ago, back when Rehnquist was still a relatively junior Associate Justice. The piece provides a clear and coherent statement of Rehnquist's judicial philosophy, and the Harvard Journal of Law and Public Policy and the Texas Law Review deserve thanks for their initiative and generosity in reproducing it, in memory of his life and work.

This introduction to Rehnquist's essay highlights his view that the Notion of a Living Constitution was to be resisted, not out of pious reverence for the Founders' insight into the moral, economic, and social challenges facing late-Twentieth Century society. Nor did his critique purport to be the product of a tight deduction from premises relating to the very nature of a written constitution. He was not a fundamentalist, or even a thoroughgoing, principled originalist. His aim was not to deny or resist constitutional change, but instead to insist and ensure that We the People, the ultimate source of authority in this Nation, acting through our politically accountable representatives, retain the right to serve (or not) as the agents of and vehicles for that change. What animates Rehnquist's essay - and, indeed, his career on the Court - is not so much a misplaced attachment to stasis, or a slavish adherence to ideological formulae, but a clear-eyed appreciation for tension that can exist between the antidemocratic and antimajoritarian facets of judicial review and the political theory basic to democratic society.

Keywords: Rehnquist, Constitution, Democracy, Pluralism, Living Constitution, Brennan

JEL Classification: K10, K19