The Aspirational Constitution

What justifies constitution writers in including rights in difficult-to-amend constitutional provisions that will bind future generations? One commonly held answer is the fear that, over time, societies may, as Justice Scalia has put it, “rot.” However, most constitutional rights were not adopted for anti-backsliding purposes. They were established as the culmination of various struggles to change the status quo in dramatic ways, rather than to enshrine well-accepted fundamental values. When constitutional rights succeed in changing the status quo, they can thereafter serve an ancillary anti-backsliding function or they can become effectively irrelevant. When constitutional rights fail to change the status quo in their time-as the Reconstruction Amendments largely failed-they can lay dormant for generations. They then serve an “aspirational” role, acting as unfulfilled promises to be redeemed-and often defined-by future generations. Recognizing the aspirational character of constitutional rights should have jurisprudential consequences. This anti-backsliding conception of constitutional rights may lead to originalism in constitutional interpretation: If you think a constitutional provision is meant to prevent society from falling below a certain minimum threshold, then you will want to look to the time of adoption to ascertain where that threshold lies. By contrast, aspirational rights do not take the practices of their framers and ratifiers as determinative. As interventions designed to change the status quo, they may invite future interpretive creativity, as in the method sometimes associated with the “living” Constitution.