STILL THE LAW OF THE LAND?
Essays on Changing Interpretations of the Constitution
Joseph S. McNamara, Executive Editor
Lissa Roche, General Editor
Hillsdale College Press
Hillsdale College Press
Books by the Hillsdale College Press include: volumes by George Roche, president of Hillsdale College; Champions of Freedom series on economics; The Christian Vision series; Scorpions in a Bottle: Dangerous Ideas About the United States and the Soviet Union; Political and Economic Pluralism in the Third World; and other works.
STILL THE LAW OF THE LAND?
ESSAYS ON CHANGING INTERPRETATIONS OF THE CONSTITUTION
© 1987 by the Hillsdale College Press
Hillsdale, Michigan 49242
Printed in the United States of America
All rights reserved.
No part of this publication may be reproduced without the prior written permission of the publisher.
Republished online with permission
First Printing 1987
Library of Congress Catalog Number: 86-081686
Cover photo by Neil Slavin Studio
Whose Constitution? An Inquiry into the Limits of Constitutional
J. Clifford Wallace
The Constitution of Principle............................. 15
Edward J. Erler
How the Constitution Disappeared...................... 37
Lino A. Graglia
The Moral Foundations of Republican Government.. 63
Edwin Meese III
The Jurisprudence of Constitutional Amendments .... 79
Stephen J. Markman
Federalism in Principle and Practice.................... 97
Charles E. Rice
The Declaration of Independence and the Equal Protection of the
Glen E. Thurow
The Layman's Perspective on the Constitution........ 125
Edward J. Erler
Holding the department chair in political science at California State University San Bernardino, Edward Erler is also an associate editor of Interpretation: A Journal of Political Philosophy, and a contributing editor to Benchmark. He frequently lectures on the Constitution and legal-political theory and is the author of Equality, Natural Rights and the Rule of Law (1984) as well as articles in The Modern Schoolman, The Claremont Journal of Public Affairs, Political Science Reviewer, Polity, The Georgia Law Review, The Claremont Review of Books, The Harvard Salient, and The Encyclopaedia of the American Constitution, and chapters in a number of standard texts on constitutional history.
Lino A. Graglia
Lino A. Graglia is the Rex G. Baker and Edna Heflin Baker Professor of Constitutional Law at the University of Texas at Austin. A former attorney for the U.S. Department of Justice and previously in private practice in Washington, D.C. and New York, Professor Graglia has been at the University since 1966. His writings include Disaster by Decree: The Supreme Court Decisions on Race and the Schools (1976) and The Supreme Court's Busing Decisions: A Study of Government by Judiciary (1978). He is a frequent contributor to law reviews and major journals of opinion.
Stephen J. Markman
Stephen Markman currently serves as assistant attorney general of the United States. Prior to this appointment, he was chief counsel of the Senate Subcommittee on the Constitution. Mr. Markman is a graduate of Duke University and the University of Cincinnati School of Law as well as a member of the Michigan and Supreme Court bars. He is a frequent contributor to academic and popular journals on legal and constitutional issues and co-author of The 1982 Amendments to the Voting Rights Act: Legislative History (1983).
Edwin Meese III
Edwin Meese became the 75th attorney general of the United States on February 25, 1985. For four years prior to that, he held the cabinet-level position of counselor to the president. During Reagan's years as governor of California, Mr. Meese served as his executive assistant and chief of staff (1969-74), and as his secretary of legal affairs (1967-68). Attorney General Meese has also been a deputy district attorney in Alameda, California, a professor of law at the University of San Diego, a director of the Center for Criminal Justice Policy and Management, and a vice president for Rohr Industries, an aerospace and transportation company.
For the past twelve years, Avi Nelson, known to many for his regular appearances on the PBS series, The Advocates, has been a prominent figure in the Boston media, an unusual circumstance considering the fact that he holds master's degrees in business administration from Cornell and in physics from Harvard. Mr. Nelson is the president of WMFP Television in the Lawrence-Boston area, and editorial director of CBS affiliate WEEI. He also serves as an on-the-air analyst for WCVB Channel 5 news, as well as a panelist for the channel's weekly public affairs program, Five on Five.
Charles E. Rice
A professor of law at the University of Notre Dame, Charles Rice has also been a professor at Fordham University and New York University as well as a practicing lawyer in New York. He is currently a member of the Education Appeal Board for the Department of Education, and co-editor of the American Journal of Jurisprudence. Among his books are Freedom of Association (1962); The Supreme Court and Public Prayer (1962); The Vanishing Right to Live (1969); Authority and Rebellion (1971); Beyond Abortion: The Theory and Practice of the Secular State (1979), and Reagan and the Courts' Prospects for Reform (1980, 1982).
Glen E. Thurow
The author of Abraham Lincoln and American Political Religion (1976); co-author of American Government: Origins, Institutions, and Public Policy (1984); and co-editor of Statesmanship and Rhetoric (1984), Glen Thurow also has over fifty articles, reviews and papers to his credit. He is chairman and director of the graduate program in the department of politics at the University of Dallas, having taught previously at the University of Virginia, the University of Georgia, State University of New York Buffalo, Bucknell University, and Harvard.
J. Clifford Wallace
J. Clifford Wallace is a judge of the United States Court of Appeals for the Ninth Circuit. Formerly a district judge and a San Diego lawyer, Judge Wallace has held numerous positions as an officer of state and local bar associations and legal committees. He has taught at Brigham Young University, the University of San Diego and California Western School of Law. He is the author of more than a dozen law review essays and a special study commissioned by the Chief Justice of the United States on the future of the judiciary. He travels frequently in Europe, the Middle East and the Far East as a lecturer and consultant to foreign judiciaries.
The commemoration of the bicentennial of the United States Constitution should be an occasion of festivity tempered by solemn gratitude for the gift our Founding Fathers bequeathed to us. But if the Constitution is to survive as something more than an abstract symbol a parchment counterpart of the Statue of Liberty the celebration must also be the occasion for broadened public awareness of the principles of constitutional government. For the anniversary comes at a time of grave crisis in our constitutional history.
The federal judiciary, originally designed as part of a carefully balanced mechanism in which it shared guardianship of the Constitution with the executive, the two houses of Congress, and the state governments, has gradually taken sole custody unto itself, proclaiming that its decisions and not the Constitution are the supreme law of the land. What is even more dangerous, the Supreme Court has, during the last two or three decades, become progressively more blatant in disregarding the Constitution and arriving at decisions on the basis of the justices' ideological predilections in regard to "social progress" and "human dignity." These usurpations are compatible neither with the idea of constitutional government nor with the ideal of a government of laws.
All the essays in this volume are, in one way or another, addressed to this problem, its ramifications, and its implications. They are the product of long, deep, and careful research and reflection; but, though they are appropriately cast in the muted tones of scholarship, collectively they sound an alarm bell in the night. Every thinking and public-spirited American can learn from their message. For two centuries the Constitution has provided the American people with a framework of limited government, designed for liberty. It is up to us to preserve that framework for our posterity, even as the Founders created it for theirs.
Department of History University of Alabama
In less than a year, the people of the United States will celebrate the two hundredth anniversary of their Constitution. The approaching bicentennial finds Americans of all political persuasions united in the belief that this ancient document is the surest guardian of their liberties and way of life. Nonetheless, the interpretations of its provisions are as controversial today as they were in Washington's first term. Some Americans believe that the Constitution requires a wall of separation between church and state, while others see governmental assistance to religion generally, although not to any preferred sect, compatible with religious liberty. Some see "the equal protection of the laws" as requiring affirmative action by the government on behalf of minorities, while others see the same constitutional provision as forbidding this practice. Some regard the First Amendment's guarantee of freedom of speech as absolute, while others would qualify or limit its exercise.
At the highest level of thinking about the Constitution, opinion is also divided. The dominant school of constitutional jurisprudence, legal realism, or noninterpretivism, holds that the Constitution is merely a procedural document containing no principles beyond the procedures themselves. According to this school of thought, the aim of the Constitution is not to inform American political life with any ethical norms, nor to shape public policy in terms of any set of values. Rather, America should be regarded as a pluralist society, containing a number of equally valid value systems, each struggling for the means of expressing itself. Constitutional procedures merely set the rules of the competition. In short, the Constitution is seen as wholly indifferent to the end results produced by constitutional procedures. John Hart Ely, a leading proponent of this view, has characterized the Constitution as neutral with respect to substantive values, concerned only with procedural fairness.
Over the past two decades, however, another school of constitutional interpretation has arisen, contending that this doctrine is not consistent with the Founders' beliefs. This newer scholarship, which presents itself as a revival of an older, more authentic tradition, holds that the authors of the Constitution believed that its provisions were informed by the "Laws of Nature and of Nature's God," and gave expression to immutable principles of justice. The dominant, value-free school of thought answers these criticisms by pointing out that the Constitution is a living document, that it must evolve over time, and that an important step in its evolution has been its escape from the confinements of the natural law thinking which characterized the Founders.
All of the essays here, with the exception of Lino A. Graglia's How the Constitution Disappeared, were originally presented at Hillsdale College. In March of 1986, Hillsdale College's Center for Constructive Alternatives (CCA) sponsored a week-long seminar in order to ask, "Who is right, the interpretivists or their critics, the modern legal realists?" If the Constitution is to be understood as consistent with human liberty and dignity, must it also be understood as grounded in immutable principle, or must the natural-right framework of interpretation be discarded as outmoded and unduly restrictive? If the Framers were wrong, should we take steps to reform the Constitution? If they were right and still present superior claims to understanding constitutionalism and the rule of law, then should steps be taken to restore the original understanding of their work?
The March CCA, entitled "The Authority of the Constitution: Procedural or Ethical?" paid particular attention to the interpretation of the First and Fourteenth Amendments to the Constitution. The former provides for freedom of speech, press, assembly, and religion, and the latter guarantees the equal protection of the laws to all citizens. Controversies surrounding the interpretation of these portions of the Constitution are key to understanding the issues between the modern constitutional scholars and their natural-law critics, because it has largely been through the adjudication of cases concerning these amendments that the realists' canons of constitutional interpretation have come to assume their present dominance.
Special appreciation is extended to Dr. Thomas F. Payne of the political science department at Hillsdale College for his help in preparing the introduction to this volume, and to Mrs. Patricia DuBois for her assistance in compiling and typing all of the essays included here.
An Inquiry into the Limits
of Constitutional Interpretation
J. Clifford Wallace
Next year we will celebrate the two hundredth anniversary of our Constitution. This remarkable document has structured our government and secured our liberty as we have developed from thirteen fledgling colonies into a mature and strong democracy. Without doubt, the Constitution is one of the grandest political achievements of the modern world.
In spite of this marvelous record, we will celebrate our nation's charter in the midst of a hotly contested debate on the continuing role that it should have in our society. Two schools of constitutional jurisprudence are engaged in a long-running battle. Some contend that the outcome of this conflict may well determine whether the Constitution remains our vital organic document or whether it instead becomes a curious historical relic. The competing positions in this constitutional battle are often summarized by a variety of labels: judicial restraint versus judicial activism, strict construction versus loose construction, positivism versus natural law, conservative versus liberal, interpretivism versus noninterpretivism. In large measure, these labels alone add little assistance in analyzing a complex problem. Ultimately what is at stake, however, as the title suggests, is whose constitution will govern this country. Will it be the written document drafted by the Framers, ratified by the people, and passed down, with amendments, to us? Or will it be an illusive parchment upon which modern-day judges may freely engrave their own political and sociological preferences?
In this essay, I intend to outline and defend a constitutional jurisprudence of judicial restraint. My primary purpose is to suggest that a key principle of judicial restraint namely, interpretivism is required by our constitutional plan. I will also explore how practitioners of judicial restraint should resolve the tension that can arise in our current state of constitutional law between interpretivism and a second important principle, respect for precedent. Finally, these two themes will be applied to the central question of whether the authority of the Constitution is procedural or ethical.
Interpretivism and Noninterpretivism
What is the difference between interpretivism and noninterpretivism? This question is important because I believe interpretivism is the cornerstone of a constitutional jurisprudence of judicial restraint. By "interpretivism," I mean the principle that judges, in resolving constitutional questions, should rely on the express provisions of the Constitution or upon those norms that are clearly implicit in its text. Under an interpretivist approach, the original intention of the Framers is the controlling guide for constitutional interpretation. This does not mean, of course, that judges may apply a constitutional provision only to situations specifically contemplated by the Framers. Rather, it simply requires that when considering whether to invalidate the work of the political branches, the judges do so from a starting point fairly discoverable in the Constitution. By contrast, under noninterpretive review, judges may freely rest their decisions on value judgments that admittedly are not supported by, and may even contravene, the text of the Constitution and the intent of the Framers.
I believe that the Constitution itself envisions and requires interpretivist review. To explore this thesis, we should first examine the Constitution as a political and historical document. I hope that you have read the Constitution recently. If you have, I am sure that you were struck by how procedural and technical its provisions are. Perhaps on first reading it may have been something of a disappointment to you. In contrast to the fiery eloquence of the Declaration of Independence, the Constitution may seem dry or even dull. This difference in style, of course, reflects the very different functions of the two documents. The Declaration of Independence is an indictment of the reign of King George III. In a flamboyant tone, it is brilliantly crafted to persuade the world of the justice of our fight for independence. The Constitution, by contrast, establishes the basic set of rules for the nation. Its genius lies deeper, in its skillful design of a government structure that would best ensure liberty and democracy.
The primary mechanism by which the Constitution aims to protect liberty and democracy is the dispersion of government power. Recognizing that concentrated power poses the threat of tyranny, the Framers divided authority between the states and the federal government. In addition they created three separate and co-equal branches of the federal government in a system of checks and balances.
The Framers were also aware, of course, that liberty and democracy can come into conflict. The Constitution therefore strikes a careful balance between democratic rule and minority rights. Its republican, representative features are designed to channel and refine cruder majoritarian impulses. In addition, the Constitution's specific individual protections, especially in the Bill of Rights, guarantee against certain majority intrusions. Beyond these guarantees, the Constitution places its trust in the democratic process the voice of the people expressed through their freely elected representatives.
Professor Raoul Berger argues persuasively in his book Government by Judiciary that the Constitution "was written against a background of interpretive presuppositions that assured the Framers their design would be effectuated." The importance of that statement may escape us today when it is easy to take for granted that the Constitution is a written document. But for the Framers, the fact that the Constitution was in writing was not merely incidental. They recognized that a written constitution provides the most stable basis for the rule of law, upon which liberty and justice ultimately depend.
As Thomas Jefferson observed, "Our peculiar security is in the possession of a written constitution. Let us not make it a blank paper by construction." Chief Justice Marshall, in Marbury v. Madison, the very case establishing the power of judicial review, emphasized constraints imposed by the written text and the judicial duty to respect these constraints in all cases raising constitutional questions.
Moreover, the Framers recognized the importance of interpreting the Constitution according to their original intent. In Madison's words, if "the sense in which the Constitution was accepted and ratified by the Nation ... be not the guide in expounding it, there can be no security for a consistent and stable government, [nor] for a faithful exercise of its powers." Similarly, Jefferson as president acknowledged his duty to administer the Constitution "according to the safe and honest meaning contemplated by the plain understanding of the people at the time of its adoption a meaning to be found in the explanations of those who advocated ... it." It seems clear, therefore, that the leading Framers were interpretivists and believed that the constitutional questions should be reviewed by that approach.
Leaving the critical history of the importance of interpretivism to the Founders, I would now like to consider whether interpretivism is necessary to effectuate the constitutional plan. The essential starting point is that the Constitution established a separation of powers to protect our freedom. Because freedom is fundamental, so too is the separation of powers. But separation of powers becomes a meaningless slogan if judges may confer constitutional status on whichever rights they happen to deem important, regardless of a textual basis. In effect, under noninterpretive review, the judiciary functions as a super-legislature beyond the check of the other two branches. Noninterpretivist review also disregards the Constitution's careful allocation of most decisions to the democratic process, allowing the legislature to make decisions deemed best for society. Ultimately, noninterpretivist review reduces our written Constitution to insignificance and threatens to impose a tyranny of the judiciary.
Important prudential considerations also weigh heavily in favor of interpretivist review. The rule of law is fundamental in our society. To be effective, it cannot be tossed to and fro by each new sociological wind. Because it is rooted in written text, interpretivist review promotes the stability and predictability essential to the rule of law. By contrast, noninterpretivist review presents an infinitely variable array of possibilities. The Constitution would vary with each judge's conception of what is important. To demonstrate the wide variety of tests that could be applied, let us briefly look at the writings of legal academics who advocate noninterpretivism. Assume each is a judge deciding the same constitutional issue. One professor seeks to "cement[ ] a union between the distributional patterns of the modern welfare state and the federal constitution." Another "would guarantee a whole range of nontextually based rights against government to ensure the dignity of full membership in society.'" Yet a third argues that the courts should give "concrete meaning and application" to those values that "give our society an identity and inner coherence [and] its distinctive public morality." Another professor sees the court as having a "prophetic" role in developing moral standards in a "dialectical relationship" with Congress, from which he sees emerging a "more mature" political morality. One professor even urges that the court apply the contractarian moral theory of Professor Rawls's A Theory of Justice to constitutional questions. One can easily see the fatal vagueness and subjectiveness of this approach: each judge would apply his or her own separate and diverse personal values in interpreting the same constitutional question. When the anchor is lost, we drift at sea.
Another prudential argument against noninterpretivism is that judges are not particularly well suited to make judgments of broad social policy. We judges decide cases on the basis of a limited record that largely represents the efforts of the parties to the litigation. Legislators, with their committees, hearings, and more direct role in the political process, are much better equipped institutionally to decide what is best for society.
But are there arguments in favor of noninterpretivism? Let us consider several assertions commonly put forth by proponents. One argument asserts that certain constitutional provisions invite judges to import into the constitutional decision process value judgments derived from outside the Constitution. Most commonly, advocates of this view rely on the due process clause of the Fifth and Fourteenth Amendments. It is true that courts have interpreted the due process clause to authorize broad review of the substantive merits of legislation. But is that what the draftsmen had in mind? Some constitutional scholars make a strong argument that the clause, consistent with its plain language, was intended to have a limited procedural meaning.
A second argument asserts that the meaning of the constitutional text and the intention of the Framers cannot be ascertained with sufficient precision to guide constitutional decision making. I readily acknowledge that interpretivism will not always provide easy answers to difficult constitutional questions. The judicial role will always involve the exercise of discretion. The strength of interpretivism is that it channels and constrains this discretion in a manner consistent with the Constitution. While it does not necessarily ensure a correct result, it helpfully excludes from consideration entire ranges of improper judicial responses.
Third, some have suggested that the Fourteenth Amendment effected such a fundamental revision in the nature of our government that the intentions of the original Framers are scarcely any longer relevant. It is, of course, true that federal judges have seized upon the Fourteenth Amendment as a vehicle to restructure federal/state relations. The argument, however, is not one-sided. Professor Raoul Berger, for example, persuasively demonstrates that the Framers of the Fourteenth Amendment had much more limited objectives. In addition, one reasonable interpretation of the history of this amendment demonstrates that its Framers, rather than intending an expanded role for the federal courts, meant for Congress (under Section 5 of the amendment) to play the primary role in enforcing its provisions. Thus it can be argued that to the extent that the Fourteenth Amendment represented an innovation in the constitutional role of the judiciary, it was by limiting the courts' traditional role in enforcing constitutional rights and by providing added responsibility for the Congress.
Advocates of noninterpretivism also contend that we should have a "living Constitution" rather than be bound by "the dead hand of the Framers." These slogans prove nothing. An interpretivist approach would not constrict government processes; on the contrary, it would ensure that issues are freely subject to the workings of the democratic process. Moreover, to the extent that the Constitution might profit from revision, the amendment process of Article V provides the only constitutional means. Judicial amendment under a noninterpretivist approach is simply an unconstitutional usurpation.
Almost certainly, the greatest support for a noninterpretive approach derives from its perceived capacity to achieve just results. Why quibble over the Constitution, after all, if judges who disregard it nevertheless "do justice"? Such a view is dangerously shortsighted and naive. In the first place, one has no cause to believe that the results of noninterpretivism will generally be "right." Individual judges have widely varying conceptions of what values are important. Noninterpretivists spawned the "conservative" substantive economic due process doctrine in the 1930s as well as the "liberal" decisions of the Warren Court. There is no principled or predictable result in noninterpretivism.
But even if the judge would always be right, the process would be wrong. A benevolent judicial tyranny is nonetheless a tyranny. Our Constitution rests on the faith that democracy is intrinsically valuable. From an instrumental perspective, democracy might at times produce results that are not as desirable as platonic guardians might produce. But the democratic process our participation in a system of self-government has transcendental value. Moreover, one must consider the very real danger that an activist judiciary stunts the development of a responsible democracy by removing from it the duty to make difficult decisions. If we are to remain faithful to the values of democracy and liberty, we must insist that courts respect the Constitution's allocation of social decision making to the political branches.
Precedent, Judicial Restraint and the Rule of Law
I emphasized earlier the importance of stability to the rule of law. I return to that theme to consider a second principle of judicial restraint: respect for precedent. Respect for precedent is a principle widely accepted, even if not always faithfully followed. It requires simply that a judge follow prior case law in deciding legal questions. Respect for precedent promotes predictability and uniformity. It constrains a judge's discretion and satisfies the reasonable expectations of the parties. Through its application, citizens can have a better understanding of what the law is and act accordingly. Unfortunately, in the present state of constitutional law, the two principles of judicial restraint that I have outlined can come into conflict. While much of constitutional law is consistent with the principle of interpretivism, a significant portion is not. The question thus arises how a practitioner of judicial restraint should act when respecting precedent would require acceptance of law developed by a noninterpretivist approach.
The answer is easy for a judge in my position, and, indeed, for any judge below the United States Supreme Court. As a judge on the Ninth Circuit Court of Appeals, I am bound to follow Supreme Court and Ninth Circuit precedent even when I believe it is wrong. There is a distinction, however, between following precedent and extending it. Where existing precedent does not fairly govern a legal question, the principle of interpretivism should guide a judge. For Supreme Court justices, the issue is somewhat different. The Supreme Court is obviously not infallible. Throughout its history, the Court has at times rejected its own precedents. Because the Supreme Court has the ultimate judicial say on what the Constitution means, its justices have a special responsibility to ensure that they are properly expounding constitutional law as well as fostering stability and predictability.
Must Supreme Court advocates of judicial restraint passively accept the errors of activist predecessors? There is little rational basis for doing so. Periodic activist inroads could emasculate fundamental doctrines and undermine the separation of powers. Nevertheless, the values of predictability and uniformity that respect for precedent promotes demand caution in overturning precedent. In my view, a justice should consider overturning a prior decision only when the decision is clearly wrong, has significant effects, and would otherwise be difficult to remedy.
Significantly, constitutional decisions based on a noninterpretivist approach may satisfy these criteria. When judges confer constitutional status on their value judgments without support in the language of the Constitution and the original intention of the Framers, they commit clear error. Because constitutional errors frequently affect the institutional structure of government and the allocation of decisions to the democratic process, they are likely to have important effects. And because constitutional decisions, unlike statutory decisions, cannot be set aside through normal political channels, they will generally meet the third requirement. In sum, then, despite the prudential interests furthered by respect for precedent, advocates of judicial restraint may be justified in seeking to overturn noninterpretivist precedent.
The Procedural and Ethical Authority of the Constitution
Having outlined some thoughts on judicial restraint, it is easier to comment briefly on Hillsdale College's conference theme. Thus the question: How would a person who accepts my jurisprudence of judicial restraint respond to whether the authority of the Constitution is procedural or ethical?
It should be evident by now that I have great difficulty using an appeal to natural law, or to any other general ethical principle, as the primary guide for a judge to interpret the Constitution. I certainly do not dispute the existence of objective moral principles; I have adopted moral and religious principles which govern my private life. My judgment is that America would benefit if each citizen adopted and applied sound ethical or religious principles. But this judgment system answers a different inquiry than whether judges should use their concept of natural law apparently based on their individual concept of ethical or religious principles to interpret the Constitution. I see no basis in the Constitution for resting constitutional decision making on one's individual concepts of natural law.
Moreover, in twentieth-century America, it is simply not conceivable that different judges applying their own conceptions of "natural law" could produce a stable and coherent body of constitutional law. The general pitfalls of noninterpretivist approaches would certainly be present if constitutional decisions were to be based upon each individual's concept of a doctrine as ill-defined as "natural law." Thus, I see "natural law" as having the potential of becoming just one of many labels under which judges could enshrine their own subjective preferences as constitutionally mandated.
On the other hand, I believe that the Constitution is heavily procedural. But that admission does not assign me to the "value-free" school of thought. I do not believe that its procedures are divorced from ethical values. On the contrary, the Framers deliberately crafted rules and structures that would secure and promote fundamental values such as liberty and democracy. It is these values that form the philosophical basis of judicial restraint.
Therefore, in answer to the question which the conference posed, whether the authority of the Constitution is procedural or ethical, I suggest it is both and properly so. A jurisprudence of judicial restraint ensures judicial safeguarding of this constitutional plan. In a very important sense, then, the jurisprudence of judicial restraint guarantees a Constitution that is both procedural and ethical.
1. I have elsewhere presented various aspects of this jurisprudence. See, e.g., Wallace, "A Two Hundred Year Old Constitution in a Modern Society," 61 Texas Law Review (1983), 1575; and "The Jurisprudence of Judicial Restraint: A Return to the Moorings," 50 George Washington Law Review (1981), 1.
2. Wallace, supra note 1, Texas Law Review; John H. Ely, Democracy and Distrust: A Theory of Judicial Review (Harvard University Press, 1980), 1.
3. Ely, 2.
4. Ibid., 43-72.
5. Raoul Berger. Government by Judiciary: The Transformation of the Fourteenth Amendment (Harvard University Press, 1977), 366.
6. Ibid., 364. Quoting letter to Wilson Cary Nicholas, September 7, 1803.
7. Marbury v. Madison, 5 U.S. (1 Cranch) 137, 176-80 (1803).
8. Ibid. Quoting The Writings of James Madison.
9. Ibid., 366-67. Citing Jonathan Elliot, The Debates in the Several State Conventions on The Adoption of the Federal Constitution.
10. Monaghan, "Our Perfect Constitution," New York University Law Review (1981), 353. Summarizes theories of noninterpretivists.
11. Berger, 193-220.
13. Ibid., 220-29.
14. On another level, however, natural law may have an important role to play in constitutional decision making. Natural law may have had some influence on the Framers, see, e.g., Berns, "Judicial Review and the Rights and Laws of Nature," 49, Supreme Court Review (1982), 76-83; but cf. Ely, 49-50 (natural law had little influence on the Framers); and, Berger, 252 (Framers were deeply committed to positivism). To the extent that natural law is demonstrated to have influenced particular parts of the text, its consideration would be helpful in understanding the Framers' intent. This method of analysis is completely consistent with the interpretivist approach since it is directed to finding the meaning of the document.
The Constitution of Principle
Edward J. Erler
On the eve of the bicentennial of the Constitution, we find ourselves engaged in a vigorous national debate concerning how we are to understand this document. Perhaps this is the most appropriate way to celebrate the Constitution by renewing the debates that surrounded its framing and ratification. After all, the bicentennial presents that natural occasion for reflection on the origins of our system. Those who were closer to the origins understood better than we do today the primacy of first principles. The young Alexander Hamilton wrote in 1775 that "When the first principles of civil society are violated, and the rights of a whole people are invaded, the common forms of municipal law are not to be regarded. Men may then betake themselves to the law of nature; and, if they but conform their actions, to that standard, all cavils against them, betray either ignorance or dishonesty." This statement linking first principles to natural law was not solely the product of Hamilton's youthful exuberance. Both the Virginia Bill of Rights (1776) and the Massachusetts Bill of Rights (1780) posit "a frequent recurrence to fundamental principles" as the indispensable means of preserving free government. It is this frequent recurrence to first principles which supplies our access to those fundamental questions that reach to the very foundations of our way of life as a people.
"Original Intent" and the Modern Debate
A recent exchange between Attorney General Edwin Meese and Supreme Court Justice William Brennan concerning the issue of constitutional interpretation has reminded us once again of the necessity of recurring to first principles. The attorney general has called for a "jurisprudence based on first principles." He describes this jurisprudence as the attempt to recover the "original intent" of the Framers of the Constitution. Original intent is the only reliable guide for interpretation because, in the attorney general's words, it allows us "to judge policies in light of principles, rather than remold principles in light of policies.... A jurisprudence seriously aimed at the explication of original intention would produce defensible principles of government that would not be tainted by ideological predilection."
The attorney general's remarks were prompted by the fact that for more than twenty years the Supreme Court has tended to regard constitutional interpretation as an instrument for remolding society and adapting the Constitution to what it perceives to be evolving standards of law and justice. No doubt he had in mind such cases as Griswold v. Connecticut (1965) in which the Court created a fundamental right to privacy out of the various "penumbras" and "emanations" of the Constitution, and Roe v. Wade (1973) which created a right to abortion as a necessary incident of the "fundamental right to privacy" that the Court had earlier found lurking in the Constitution in Griswold. Meese has also criticized the Court for its ruling in the 1961 case of Mapp v. Ohio which gave constitutional status to the judicially created exclusionary rule, and the 1966 Miranda case which required police warnings to insure the "voluntariness" of criminal confessions. In perhaps his most acerb comment, Meese ridiculed the Court's recent school prayer decisions, remarking that the Framers of the Constitution would have regarded "as somewhat bizarre" the Court's requirement that the government must maintain an absolute neutrality as to the existence of religion or irreligion in the country. It is Meese's position that the touchstone of constitutional interpretation must be the intention of the Framers of the Constitution. If the Constitution is fundamental law, he argues, its basic precepts cannot be changed by the interpretations of the Supreme Court.
Meese's call for a jurisprudence of original intent was ridiculed by Justice Brennan. Brennan candidly admits that "judicial power resides in the authority to give meaning to the Constitution," but he denies that this meaning can be derived from the original intent of the Framers. He goes further: Even if it were possible to discern original intent, he insists it would be undesirable to bind ourselves by that original understanding. The Constitution, Brennan remarks, represents our evolving aspirations of human dignity, and the "demands of human dignity will never cease to evolve."
Brennan's main complaint, of course, is that an adherence to a jurisprudence of original intent would put constitutional limits on the demands that can be made in the name of "human dignity." These are the demands that have been identified with the expansion of the radical welfare state. According to Justice Brennan, those who propose to adhere to the original intent of the Constitution the proponents of "facile historicism" are really establishing "a presumption of resolving textual ambiguities against the claim of constitutional right." This is because "the original document, before addition of any of the amendments, does not speak primarily of the rights of man, but of the abilities and disabilities of government." Although the Constitution did contain some specific prohibitions on government power that protected individual rights (e.g., the prohibition on ex post facto laws, bills of attainder, etc.), it was the Bill of Rights and the Civil War amendments, according to Brennan, that provided the "sparkling vision of the supremacy of the human dignity of every individual." One commentator has expressed this idea by asserting that judges must respect all rights as absolute trumps on the powers of government. Thus the rights contained in the amendments preferred by Justice Brennan are understood as being somehow in opposition to the Constitution, not an attempt to adapt the Constitution in accordance with the original intention of the Framers. In Brennan's view those who call for a jurisprudence of original intention therefore wish to ignore the Bill of Rights as the vehicle for the "transformation of social conditions and [the] evolution of our concepts of human dignity."
What this amounts to, in Brennan's argument, is that those who "would restrict claims of right to the values of 1789 specifically articulated in the Constitution turn a blind eye to social progress and eschew adaptation of overarching principles to changes of social circumstance." In short, this view "expresses antipathy to claims of the minority to rights against the majority." This is true because the original Constitution establishes the principles of majority rule it is the Bill of Rights and the Civil War amendments which provide the countermajoritarian protection for minority and individual rights. And, Brennan quickly adds, it is the role of the Court to provide this countermajoritarian protection by standing as the virtual representative for those groups that are said to be permanently isolated from the majoritarian political process the so-called "discrete and insular minorities."
It is true that the purpose of republican government is to protect the rights and liberties of all who consent to be governed. Republican government does, however, vest the exercise of sovereign power in the majority of society, and because it does so there is always the possibility that a majority will exercise rule in a manner that Madison described as "adverse to the rights of other citizens, or to the permanent and aggregate interests of the community." In short, there is always the possibility that the majority will become a majority faction. The principal problem of republican government, therefore, is to devise a constitution that will insure that majorities can rule in the interest of the society as a whole, that is, in the public good.
Madison described the aim of republican constitutionalism in this manner: "It is of great importance in a republic, not only to guard the society against the oppression of its rulers; but to guard one part of the society against the injustice of the other part." The first aspect of this is addressed by the separation of powers; the second, and more difficult one, requires an extensive regime with a "multiplicity of interests" designed to militate against the formation of majority faction. In a large, diverse republic, Madison reasoned, it will rarely be in the interest of the majority to invade the rights of the minority. Since, in all probability, there will be no permanent class interests in society, it is unlikely that there will be permanent majorities and permanent minorities; the majority will never develop a sense of its own identity and interest as a majority. In such a situation, there is less probability that "a majority of the whole will have a common motive to invade the rights of other citizens." Madison spoke in terms of the necessity of producing constitutional majorities majorities that could exercise power consistent with the public good as opposed to merely numerical majorities which would rule in terms of their own class status as a majority. By and large, the solution of the Framers has worked remarkably well. American politics has never been dominated by majority factions.
"Qualitative Liberalism" and the Judiciary
But for Justice Brennan and here a majority of the Supreme Court agrees with him it is inconceivable that a majority could rule in the interest of the whole of society. He simply assumes that the Framers failed in their task of creating a constitution that would produce constitutional majorities and that the American political process has always been dominated by a "monolithic" majority which has merely sought to aggrandize its own interest at the expense of the various "discrete and insular" minorities in society. In short, Brennan (and a majority of the Court) looks upon the majority as just another special interest group.
This idea rests at the heart of what Allen Matusow, in his recent book Unraveling America (1984), has called "qualitative liberalism." In the 1950s qualitative liberalism came to replace the older progressive liberalism. The rapid expansion of the middle classes in the post-World War II era had posed a dilemma for liberal intellectuals: Economic inequality had virtually disappeared as a political issue. As Matusow writes:
the distinguishing feature of the post-World War II era was its remarkable affluence.... Sociologically, increased discretionary income blurred class lines and eased class antagonisms. Gone with the old issues was the old feeling of kinship with the masses. In the thirties, intellectuals had expected politics to be the battleground of ideologies, the focal point of class conflict, the medium for translating the will of the people into policy. In the fifties "the people" were transformed into that scourge of the age "mass man."
Liberals discovered that they had been "betrayed" by the people; the people did not want reform, they wanted middle class affluence. It was at this point that liberals discovered "the public interest," and "qualitative liberalism."
For the new liberals, the most distressing characteristic of the newly arrived middle classes was their lack of public spiritedness. Liberals now came to believe that the middle classes had co-opted the majoritarian political process to serve their own selfish ends at the expense of those who were not middle class. Whereas a tenet of liberalism once was that the majority in a pluralist society could safely rule in the interest of the whole, now the majority was seen to be the principal obstacle to the promotion of the public interest. If, therefore, democracy was to work for the common good, the essential task of ruling would have to be given over to a vanguard who could act in the majority's stead, i.e., act in the way that majority would act if it were not corrupted by an overweening sense of its own particular class interest. Qualitative liberalism thus found it necessary to mount an attack upon middle-class selfishness, in a word, to force public spiritedness upon this recalcitrant class. In this way, the new liberalism could demonstrate its own public spiritedness, since it would not be working for its own class interest, but for that of the various discrete and insular minorities in society.
How else can one explain the liberals' anger at the self-satisfaction of the middle classes? The middle classes moved to the suburbs in order to send their children to better schools. The liberals invented busing. The middle classes moved to the suburbs to escape crime. The liberals invented a new kind of judicial activism aimed at protecting criminals.
The middle classes moved to the suburbs for better jobs. The liberals invented affirmative action. Harvey Mansfield, in a parody of one of the "qualitative liberals," writes that "to rediscover the whole, or the public, we must recapture the suburbs for the city." Massive busing, he laconically notes, "would remove an important incentive to escape the city."
The theoretical formulation for the new "qualitative liberalism" appeared somewhat belatedly in John Rawls's A Theory of Justice published in 1971. The central tenet of this work is that "all social primary goods liberty and opportunity, income and wealth and the bases of self-respect are to be distributed equally unless an unequal distribution of any or all of these goods is to the advantage of the least favored." According to Rawls, an apportionment based on the notion of equal opportunity is unjust because it dispenses rewards based on "unmerited" or "arbitrary" natural inequalities. Justice properly understood requires that "equal opportunity" give way to "fair equal opportunity" to correct this "natural lottery."
Rawls thus provided the justification for the rule of a "new class" of administrators who would use their "superior talents" for the benefit of the "least advantaged." This was the justification for a welfare state ruled by public spirited administrators that qualitative liberalism needed. Hardly anyone can fail to see the extent to which this argument has come to occupy a central position in the attempt to extend the radical welfare state and the extent to which it has influenced the federal courts.
The principal agent of qualitative liberalism is the liberal judiciary, which liberalism itself has cast in the role of virtual representative for discrete and insular minorities. As one enthusiastic proponent of the liberal judiciary has stated it recently, "the task of custodianship has been and should be assigned to a governing body that is insulated from political responsibility and unbeholden to self-absorbed and excited majoritarianism." No member of the liberal vanguard has taken up the cudgels against middle class democracy with more ideological fervor than Justice Brennan. He writes that
We current Justices read the Constitution in the only way that we can: as Twentieth-Century Americans. We look to the history of the time of framing and to the intervening history of interpretation. But the ultimate question must be, what do the words of the text mean in our time ...? What the constitutional fundamentals meant to the wisdom of other times cannot be their measure to the vision of our time.
And what the Constitution stands for today is "a sublime oration on the dignity of man, a bold commitment by a people to the ideal of libertarian dignity protected through law." And, he further notes, "protection of the human dignity of citizens requires a much modified view of the proper relationship of individual and state."
The judiciary must, of course, take the leading role not only in reflecting society's progress, but in forming and articulating the ground for progress. We once thought, for example, that human dignity required the protection of private property rights. Now, according to Brennan, we have come to see that human dignity requires a new kind of property rights the right to government entitlements. Brennan, of course, would be the first to admit that the language of human dignity is not the language of the Constitution. But what Brennan does recognize is that the language of the Constitution is not as amorphous as the language of human dignity, and thus does not lend itself as readily to the kind of progressive reinterpretation that he insists upon. As Brennan remarks, the striving toward the goal of a "comprehensive definition of the constitutional idea of human dignity" is an "eternal quest," a quest that, we might add, has long ago ceased to pretend that it has anything to do with the Constitution.
Brennan's ultimate vision of constitutional interpretation is revealed in his discussion of capital punishment. Brennan does not argue as indeed he could not that the Framers of the Bill of Rights intended to abolish capital punishment when they wrote the proscription against "cruel and unusual punishment" into the Eighth Amendment. After all, both the Fifth Amendment and the Fourteenth Amendment prohibit any person from being "deprived of life, liberty, or property, without due process of law." The clear implication is that individuals can be deprived of life with due process of law. The Fifth Amendment also speaks of "capital crimes." Capital punishment thus could not have been regarded by the Framers of the Constitution or the Framers of the Bill of Rights as "cruel and unusual punishment." As everyone seems to agree, the Framers were attempting to prohibit the star chamber proceedings that had been a part of English criminal law.
Despite the unequivocal intentions of the Framers in this matter, Brennan remarks: "As I interpret the Constitution, capital punishment is under all circumstances cruel and unusual punishment prohibited by the Eighth and Fourteenth Amendments." While the Constitution is viewed by Brennan as a flexible and mutable instrument to be adapted to evolving standards of civilization, his own ideas on the subject of capital punishment, as he informs us, are "fixed and immutable." These ideas are therefore exempt from the need for progress or "evolving standards." They proceed from a "constitutional vision of human dignity" which, he reminds us, is not shared either by a majority of his fellow citizens or a majority of the Supreme Court. The key to understanding the ban on cruel and unusual punishment, according to Brennan, is recognizing its "fundamental premise that even the most base criminal remains a human being possessed of some potential, at least, for common human dignity." Thus, he continues, "the calculated killing of a human being by the States involved, by its very nature, an absolute denial of the executed person's humanity." The state must therefore "treat its citizens in a manner consistent with their intrinsic worth as human beings ... so as not to be degrading to the very essence of human dignity."
Even conceding, merely for the sake of argument, that the language of human dignity might be inferred from the Constitution, Brennan is totally mistaken about what constitutes human dignity. He seems never to have considered the fact that a country that honors those who, by their actions, have demonstrated no regard for human dignity is dishonoring human dignity itself. If the Constitution stands for the ultimate human dignity of the individual, as Brennan insists, then according honor to those who refuse by murder, rape, torture or other inhuman acts to recognize the dignity of others would simply convert the Constitution into a "suicide pact." A society which truly hallows human dignity elevates those who demonstrate a regard for human dignity by honoring the laws and the Constitution, and punishes those who are either incapable or unwilling to recognize the human dignity or human rights of others. From the point of view of constitutional government, the death penalty must be properly regarded as affirming the value that society places on life. Brennan's position makes no sense whether regarded from the original intent of the Framers of the Constitution and the Bill of Rights or from the point of view of the eternal quest for evolving standards of human dignity.
Who can by now fail to recognize that the original intent of the Framers, rather than Brennan's amorphous notion of "human dignity," is the true ground of constitutional government? All constitutional debate must take place within the context of the intentions of the Framers. But how do we resolve ambiguities? And how do we apply old constitutional principles to new situations? These, of course, are legitimate questions. Some parts of the Constitution are unequivocal for example, that the president must be thirty-five years of age. But even this plain dictate of language is questioned by those who would argue that the Constitution has no original meaning. After all, this could mean that the Framers only wanted someone to fill the office of the presidency who had reached mature years and they hit upon thirty-five years as being merely indicative of maturity. They may have really meant that any mature person could hold the office regardless of his exact age. A recent scholar although I hesitate to call him such questioned the meaning of a constitutional provision that all revenue bills must originate in the House of Representatives. What could the word "originate" possibly mean here, he asked. Throwing up his hands, he despaired of any answer, because, he said, everyone knows that today revenue bills "originate" in the Office of Management and Budget. If this analysis is correct then it is only too obvious that written constitutions are mere absurdities. But, of course, we are not to take such tergiversations and obfuscations seriously.
But what about cases where genuine debate is possible about the precise meaning of the Constitution? Of course, our first obligation, as Madison reminded us, is to the language of the Constitution itself, and to the sense in which it was understood by those who ratified it. It is only when the meaning of the Constitution cannot be discerned from its plain language that resort to extrinsic aids is warranted. But even such extrinsic aids as the constitutional convention debates and The Federalist Papers however authoritative they may be do not always supply the arguments to resolve debate. What, for example, does "privileges and immunities" or "due process" mean? What, indeed, does "equal protection of the laws" mean? Brennan's position a position shared by many ideological liberals is that since there can be differences of opinion about the intention of the Framers, this very possibility makes the debate about intent meaningless. But if the debate is not about the Framers' intent, what could the debate possibly be about? Any other debate would make written constitutions superfluous as surely Brennan's interpretation of the Eighth Amendment makes the Constitution superfluous.
The Court has relied on Chief Justice Marshall's famous decision in Marbury v. Madison (1803) in making its boldest claim to judicial supremacy. Justice Brennan, writing an opinion signed by all the members of the Court in the case of Cooper v. Aaron (1958), recited what he called "some basic constitutional propositions which are settled doctrine," and which were derived from the arguments of Marbury. First is the proposition, contained in Article VI of the Constitution, that the Constitution is the supreme law of the land; second is Marshall's statement that the Constitution is "the fundamental and paramount law of the nation"; third is Marshall's declaration that "it is emphatically the province and duty of the judicial department to say what the law is." Justice Brennan concluded that Marbury therefore "declared the basic principle that the federal judiciary is supreme in the exposition of the law of the Constitution, and that principle has ever since been respected by this Court and the country as a permanent and indispensable feature of our constitutional system. It follows that the interpretation of the Fourteenth Amendment enunciated by this Court in the Brown case is the supreme law of the land." The defect of Brennan's argument, of course, is that it confounds the Constitution with constitutional law, the Constitution and the Court's interpretation of the Constitution.
Marshall did indeed say that the Constitution was "the fundamental and paramount law of the nation, "and that any "ordinary legislative acts" "repugnant to the Constitution" were necessarily void. But when Marshall wrote the famous line relied upon by Brennan that "it is emphatically the province and duty of the judicial department to say what the law is," he was referring not to the Constitution but to "ordinary legislative acts." In order to determine the law's conformity with the Constitution it is first necessary to know what the law is. And once the law is ascertained it is also necessary to determine whether the law is in conformity with the "paramount law" of the Constitution. This latter, of course, means that "in some cases" the Constitution itself "must be looked into by the judges" in order to determine the particular disposition of a case. But Marshall was clear that the ability of the Court to interpret the Constitution was incident to the necessity of deciding a law's conformity to the Constitution, and not a general warrant for constitutional interpretation of judicial legislation. Marshall was emphatic in his pronouncement that "the province of the Court is, solely, to decide on the rights of individuals."
As Marshall went on to note, "it is apparent that the Framers of the Constitution contemplated that instrument as a rule for the government of courts, as well as of the legislature." And, as he laconically noted in peroration of his argument, "it is also not unworthy of observation, that in declaring what shall be the supreme law of the land, the Constitution itself is first mentioned; and not the laws of the United States generally, but those only which shall be made in pursuance of the Constitution, have that rank." For Marshall, Brennan's assertion that the Court's decision in Brown was "the supreme law of the land," would indeed make "written constitutions absurd" because it would usurp the "original right" of the people to establish their government on "such principles" which must be "deemed fundamental" and "permanent." If the Supreme Court were indeed to sit as a "continuing constitutional convention" as many have urged, any written constitution would certainly be superfluous since, under the circumstances, there would be no "rule for the government of courts."
The key to understanding the original intention of the Framers is in understanding the character of the exercise of the original right by the people. For it is by the exercise of this right that the people establish their constitution on "such principles" as they deem necessary for their safety and happiness. The Framers of our Constitution explicitly sought to put into motion the principles enunciated in the Declaration of Independence, a document which they believed derived its authority from the "Laws of Nature and Nature's God." Madison, for example, said that the Constitution was derived from the "fundamental principles of the revolution," the very source of America's "manly spirit." Thus the Constitution cannot be understood primarily as an historical document; it must be understood as a document embodying the natural law teachings of the Declaration. It is only when the Constitution is read in this light that its intentions become clear and can be articulated in a consistent manner. This is the reason that Abraham Lincoln called the Declaration the "standard maxim" of our political life and the "sheet anchor" of our republicanism.
What the Declaration teaches, above all, is that political life can rest on the ground of political principle; the principle that "all men are created equal" and its necessary concomitant that all legitimate government rests upon the consent of the governed. The idea of equality supplies our access to nature or natural right. Equality the fact that human beings have no natural rulers is the unique expression of human nature. Unlike every other species, human beings have the potential to choose their form of government, and it is this human potential for choice rooted in human nature that accounts for human freedom and rationality. Government based on the consent of the governed was therefore a dictate of the "Laws of Nature and Nature's God." As Jefferson wrote in 1816, republican government (by which he meant those based on the consent of the governed) is the only form of government consistent with natural right. Because the idea of equality is grounded in human nature it necessarily points to nature or natural right. The radical core of the Declaration was the fact that it replaced history with nature as the standard of political right. The Declaration appeals to the natural rights of man, not the historic rights of Englishmen.
Scholars today maintain that the argument of the Declaration is only "an intellectual construction" or "cultural artifact" of the late eighteenth century. The truths that the Framers believed derived from the Laws of Nature were, in fact, only the relative "truths" of that historical epoch. This argument claims to provide an ahistorical insight into the ideas of that time. As such it claims to be something more than an "intellectual construct"; but a genuine insight. But how is this argument exempt? Can any argument claiming the historicity of all thought itself be exempt from historicity? The Framers unlike most contemporary commentators were fully conscious of the distinction between historical prescription and natural right.
But insofar as the Constitution allowed the continued existence of slavery, it was only an incomplete expression of the principles of the Declaration of Independence. No matter to what extent the Constitution may have placed the institution of chattel slavery on what Lincoln rightly termed "the road to ultimate extinction," it was still inconsistent with the principled injunctions of the Declaration that all legitimate power must be derived from the consent of the governed. The formal completion of the Constitution as a complete expression of the principles of the Declaration did not occur until the Thirteenth and Fourteenth Amendments to the Constitution were ratified. The Thirteenth abolished slavery, and the Fourteenth extended to the newly freed slaves the whole panoply of civil rights that are the necessary incidents of federal citizenship. The proponents of the Fourteenth Amendment were quite explicit about the fact that they regarded that amendment as the principled completion of the regime. Thaddeus Stevens, the leading Radical Republican, made this precise point in a speech urging the adoption of the Fourteenth Amendment before the House of Representatives on May 8, 1866:
I beg gentlemen to consider the magnitude of the task which was imposed upon the [Joint Committee on Reconstruction]. They were expected to suggest a plan for rebuilding a shattered nation.... It cannot be denied that this terrible struggle sprang from the vicious principles incorporated into the institutions of our country. Our fathers had been compelled to postpone the principles of their great Declaration, and wait for their full establishment till a more propitious time. That time ought to be present now.
References to the Declaration as organic law were so frequent throughout the debates that one can hardly doubt that the Reconstruction Congress was self-consciously engaged, in some sense, in ratifying a refounding of the regime by embodying in the Constitution the victories that had been won on the battlefields of the Civil War. From this point of view the Civil War must be viewed as the last battle of the Revolutionary War, since only the Reconstruction amendments bring the Constitution into full compliance with the revolutionary principles of the Declaration.
The attorney general recently quoted approvingly a remark of Judge Robert Bork to the effect that "our constitutional liberties arose out of historical experience and out of political, moral, and religious sentiment. They do not rest upon any general theory." It is historical experience, Bork continues, "that gives our rights life, rootedness, and meaning." But if this is indeed true, our liberties have no ground other than our own particular experiences. If then, we had not been a people who had experienced freedom, then we would have no ground to assert a right to freedom. Such a positivistic view of right would undermine any moral ground for the existence of rights or liberties. From this point of view, the only rule of political action that is left is the rule of force.
Meese cites the infamous Dred Scott decision (1857) as a "tragic" example of a decision not securely grounded in "the jurisprudence of original intent." In this case, the attorney general asserts, "the Supreme Court under Chief Justice Roger B. Taney read blacks out of the Constitution in order to invalidate Congress's attempt to limit the spread of slavery." The lesson here is the "danger in seeing the Constitution as an empty vessel into which each generation may pour its passion and prejudice." What the attorney general ignores in his citation of Dred Scott is the fact that Taney believed that his opinion was derived from the original intent of the Framers of the Constitution, and he attempted a full explication of that original intent to support his conclusion that blacks were never intended to be citizens of the United States. So far from preventing Taney from pouring his passion and prejudice into the law, the doctrine of original intent was the vehicle for Taney to do precisely that. Taney's attempt to uncover the original intent of the Framers rested on purely historicist grounds. One can infer the Framers' intent, Taney reasoned, by examining the experience or practice at the time of the Founding. No state constitution admitted blacks into full citizenship and blacks were everywhere generally accorded second class status or worse. How, then, Taney asserted, could the Framers have intended to include blacks among those whose due process rights were to be protected by the Fifth Amendment? The Fifth Amendment guarantees that no person shall be deprived of life, liberty, or property without due process of law. How are slaves to be regarded? as property? As human beings themselves deserving of the right to life, liberty, and property? Taney did not see the tension inherent in the Fifth Amendment; that the Constitution could be read both ways. After all, other provisions of the Constitution give positive protection to slavery the provision for the continuance of the foreign slave trade for twenty years, the three-fifths compromise, and the fugitive slave clause. These provisions were all part of the great bundle of compromises that was struck at the constitutional convention. But compromises are not principles they are departures from principle designed to uphold or maintain the principle while at the same time recognizing that necessity might from time to time require some postponement of the operation of the principle. It is the Declaration's principle of equality, a principle that asserts the equality of all members of the human species, that provides the proper gloss on the due process clause. The literal language of the Constitution is inadequate for resolving the question.
It is not enough to intone the necessity of recurring to original intent, as if the Constitution were merely a document of positive law. On these grounds on the ground of positivism Taney would be right. Experience and practice had indeed placed blacks "below the level of men." But experience is not the standard of the Constitution. The standard of the Constitution, in Madison's words, is "the transcendent Law of Nature and of Nature's God." It is only by reference to this standard that one can declare that all men are created equal and that all men must be accorded due process rights and equal protection of the laws. It is not enough to declare the original intention; it is also necessary to defend the rightness of that intention. Justice Brennan is correct when he remarks that the Constitution embodies a general theory of values. He is wrong, however, about what that theory is. The Constitution does indeed have a "general theory" it is the theory of the Declaration of Independence. The original intent of the Framers is not to be valued simply because it was the intent of "our" forefathers, and that intent embodies our historical experience this is indeed "facile historicism." Rather, the original intent of the Framers is to be valued because it embodies the true principles of political order. The ground of legitimate political order is not history or experience, but the laws of nature and nature's God the rationality of the unaided human intellect. This idea was perfectly expressed by Alexander Hamilton when he remarked that "The sacred rights of mankind are not to be rummaged for, among old parchments, or musty records. They are written, as with a sun beam, in the whole volume of human nature, by the hand of divinity itself; and can never be erased or obscured by mortal power." America's claim to be grounded in natural right was its unique claim to greatness. To miss this is to miss the essential point of the Framers' intent.
If it is true that America is uniquely a regime of principle as the Founders believed, then it is necessary for the people of America to rethink periodically those principles by which they constitute themselves as a people. The two hundreth anniversary of the drafting and ratification of the Constitution provides the natural occasion for this essential activity.
1. "The Farmer Refuted," The Papers of Alexander Hamilton, Vol. 1, edited by Harold C. Syrett (Columbia University Press, 1961), 136.
2. Edwin Meese III, "Address Before the District of Columbia Chapter of the Federalist Society," Nov. 15, 1985; "Address Before the American Bar Association," July 9, 1985.
3. William Brennan, "The Constitution of the United States: Contemporary Ratification," Text and Teaching Symposium, Georgetown University, Oct. 12, 1985. Unless otherwise noted, all further quotations from Justice Brennan are from this speech.
4. Sotirios A. Barber, On What the Constitution Means (Johns Hopkins University Press, 1984), 35; Edward Erler, "Judicial Enlightenment Run Riot," Claremont Review of Books, Vol. 14 (Fall, 1985), 17.
5. The Federalist No. 10, edited by Clinton Rossiter (New York: New American Library, 1961), 78.
6. Ibid., No. 51, 323.
7. Ibid., No. 10, 83.
8. Allen Matusow, The Unraveling of America: A History of Liberalism in the 1960s (New York: Harper & Row, 1984), 6.
9. Harvey Mansfield, The Spirit of Liberalism (Harvard University Press, 1978), 35.
10. John Rawls, A Theory of Justice (Cambridge: Belknap Press, 1971), 303.
11. Jesse Choper, Judicial Review and the National Political Process (University of Chicago Press, 1980), 68.
12. Letter to John Taylor, May 28, 1816, in Merrill Peterson, ed., Jefferson: Collected Works (Oxford University Press, 1984) 1392.
13. Joyce Appleby, Capitalism and a New Social Order (New York University Press, 1984), 101.
14. See Edward Erler, Equality, Natural Rights, and the Rule of Law: The View from the American Founding (Claremont Institute, 1984).
15. Congressional Globe, 39th Cong., 1st Sess., 2459 (1866).
16. "Address Before the American Enterprise Institute," Washington, D.C., Sept. 6, 1985.
17. "Address Before the District of Columbia Chapter of the Federalist Society," Nov. 15, 1985.
18. The Federalist No. 43, 277.
19. Ibid., 279.
20. "Farmer Refuted," Papers, I, 122.
How The Constitution Disappeared
Lino A. Graglia
Attorney General Edwin Meese's recent statement in a speech to the American Bar Association that judges should interpret the Constitution to mean what it was originally intended to mean probably did not strike most people as controversial. Nevertheless it brought forth immediate denunciation by a sitting Supreme Court Justice as "doctrinaire," "arrogant," and the product of "facile historicism." "It is a view," Justice William J. Brennan, Jr. said in a speech at Georgetown University, "that feigns self-effacing deference to the specific judgments of those who forged our original social compact," but that "in truth ... is little more than arrogance cloaked as humility" because it is not possible to "gauge accurately the intent of the Framers on application of principle to specific, contemporary questions." The view is not only mistaken, but misguided, Justice Brennan continued, because it would require judges to "turn a blind eye to social progress and eschew adaptation of overarching principles to changes of social circumstance."
This essay originally appeared in the February 1986 issue of Commentary.
What Is at Stake?
To state that judges should interpret the Constitution as intended by those who wrote and ratified it ("the Framers") is only to state the basic premise of our political-legal system that the function of judges is to apply, not to make, the law. Indeed, it would be difficult to say what interpretation of a law means if not to determine the intent of the lawmaker. Justice Brennan's angry attack on the obvious as if it were disreputable, soon joined by the attacks of his colleague Justice John Paul Stevens and a legion of media commentators, makes evident that much is at stake in this debate on a seemingly esoteric matter of constitutional interpretation. What is at stake is nothing less than the question of how the country should be governed in regard to basic issues of social policy: whether such issues should be decided by elected representatives of the people, largely on a state-by-state basis, or, as has been the case for the last three decades, primarily by a majority of the nine justices of the United States Supreme Court for the nation as a whole.
The modern era of constitutional law began with the Supreme Court's 1954 decision in Brown v. Board of Education, holding compulsory school racial segregation and, it soon appeared, all racial discrimination by government, unconstitutional. The undeniable rightness of the decision as a matter of social policy, in effect ending legally imposed second-class citizenship for blacks, and its eventual acceptance by the public and ratification by Congress and the president in the 1964 Civil Rights Act, gained for the Court a status and prestige unprecedented in our history. The moral superiority of decision making by judges to decision making by mere "politicians" seemed evident. The result was to enable the Court to move from its historic role as a brake on social change to a very different role as the primary engine of such change.
In the years since Brown, nearly every fundamental change in domestic social policy has been brought about not by the decentralized democratic (or, more accurately, republican) process contemplated by the Constitution, but simply by the Court's decree. The Court has decided, on a national basis and often in opposition to the wishes of a majority of the American people, issues literally of life and death, as in its decisions invalidating virtually all restrictions on abortion and severely restricting the use of capital punishment. It has decided issues of public security and order, as in its decisions greatly expanding the protection of the criminally accused and limiting state power to control street demonstrations and vagrancy, and issues of public morality, as in the decisions disallowing most state controls of pornography, obscenity, and nudity. The Court has both prohibited the states from making provisions for prayer in the schools and disallowed most forms of aid, state or federal, to religious schools. It has required that children be excluded from their neighborhood public schools and bused to more distant schools in order to increase school racial integration; ordered the reapportionment of state and federal legislatures on a "one-man-one-vote" basis; invalidated most of the law of libel and slander; and disallowed nearly all legal distinctions on the basis of sex, illegitimacy, and alienage. The list could easily be extended, but it should be clear that in terms of the issues that determine the nature and quality of life in a society, the Supreme Court has become our most important institution of government.
Since his appointment to the Court by President Eisenhower in 1956, Justice Brennan has participated in all of the Court's major constitutional decisions, has consistently voted in favor of Court intervention in the political process, and has often been a leader on the Court in reaching the decision to intervene. Indeed, he has ordinarily differed with the Court only in that he would often go even farther in disallowing political control of some issues; he would, for example, go farther than the Court has in disallowing state regulation of the distribution of pornographic material and he would prohibit capital punishment in all cases. If the Court has been our most important institution of government for the past three decades, Justice Brennan although his name is probably unknown to the great majority of his fellow citizens has surely been our most important government official. To argue that the Supreme Court should confine itself or be confined to interpreting the Constitution as written is to undermine the basis of this status and challenge the legitimacy of his life's work.
The Power of the Supreme Court
Constitutional law is as a practical matter the product of the exercise of the power of judicial review, the power of judges, and ultimately of Supreme Court justices, to invalidate legislation and other acts of other officials and institutions of government as inconsistent with the Constitution. The central question presented by constitutional law the only question the great variety of matters dealt with under that rubric have in common is how, if at all, can such a power in the hands of national officials who are unelected and effectively hold office for life be justified in a system of government supposedly republican in form and federalist in organization? The power was not explicitly provided for in the Constitution and had no precedent in English law where Parliament, not a court, is said to be supreme which could well be taken as reason enough to assume that no such power had been granted. Alexander Hamilton argued for the power in The Federalist No. 78, however, and Chief Justice John Marshall established it in Marbury v. Madison in 1803 on the ground that it is inherent in a written constitution that declares itself to be supreme law. The argument is hardly unanswerable other nations have written constitutions without judicial review but judicial review limited to interpretation of the Constitution in accordance with the Framers' intent does obviate the problem of policy making by judges.
Constitutional limitations on popular government are undoubtedly undemocratic, even if they were themselves democratically adopted by a supermajority, but the only function of judges in exercising judicial review on the basis of a written constitution with determinate meaning would be the entirely judicial function of enforcing the Constitution as they would any other law. The judges, Hamilton assured the ratifying states, would have neither force nor will"; able to "take no active resolution whatever" in enforcing the Constitution, their power would be "next to nothing." "Judicial power," Marshall reiterated, "has no existence. Courts are mere instruments of the law, and can will nothing." The notion that a court has "power to overrule or control the action of the people's representatives," Justice Owen Roberts confirmed during the New Deal constitutional crisis, "is a misconception"; the Court's only function in a constitutional case is "to lay the article of the Constitution which is invoked beside the statute which is challenged and to decide whether the latter squares with the former."
Even Justice Brennan purports to recognize what, as he notes, Alexander Bickel called "the counter-majoritarian difficulty" presented by judicial review. "Our commitment to self-governance in a representative democracy must be reconciled," Justice Brennan concedes, "with vesting in electorally unaccountable justices the power to invalidate the expressed desires of representative bodies on the ground of inconsistency with higher law." Supreme Court justices, he acknowledges at the beginning of his speech, echoing Judge Learned Hand, "are not platonic guardians appointed to wield authority according to their personal moral predilections." At several points he even seems to offer the standard justification for judicial review, that the judges merely interpret the written Constitution. He states, for example, that the duty of the judge is to "draw meaning from the text" and "remain faithful to the content" of the Constitution and that "the debate is really a debate about how to read the text, about constraints on what is legitimate interpretation." These statements are consistent with the remainder of his speech, however, only if reading or interpreting a document is considered indistinguishable from composing or rewriting it.
Unfortunately, however, the debate is not about how judges should read or interpret the text of the Constitution, but about whether that is what they should in fact confine themselves to doing in deciding constitutional cases. The view that the duty of judges is to read and interpret the Constitution to attempt to determine what the Framers intended to say is precisely the view that Justice Brennan seeks to rebut and derides as uninformed and misguided. The whole point of his speech is that judges should not be confined to that task, for to so confine them would be to give them much too limited a role in our system of government and leave us insufficiently protected from the dangers of majority rule.
Justifying the Exercise of Power
Justice Brennan is far from alone today in his view of the proper role of judges in exercising judicial review and of the essential irrelevance of the Constitution to constitutional law.
It is, indeed, the view taken by most contemporary constitutional law scholars, who share the political ideology of the modern-era Supreme Court and see it as their professional duty to legitimize the fruits of that ideology. Because it has become increasingly difficult in fact, impossible to justify the Court's controversial decisions as the result of constitutional interpretation, the bulk of modern constitutional law scholarship consists of the invention and elaboration of "noninterpretivist" or "non-originalist" theories of judicial review justifications for a judicial review that is not confined to constitutional interpretation in any sense that would effectively restrain judicial choice. Because the product of this review is nonetheless always called "constitutional law" and attributed in some way to the Constitution, the result is the paradox of noninterpretivist constitutional interpretation, constitutional law without the Constitution.
That more and more constitutional scholars, and now a Supreme Court justice, should come to recognize and acknowledge that the Supreme Court's constitutional decisions of recent decades cannot be justified on any other basis that they are not in fact based on the Constitution can be taken as a hopeful sign. Although the effort today in an increasing flood of books, articles, and speeches is to justify those decisions nonetheless, the inevitable failure of such efforts must, it would seem, eventually cause the enterprise to be abandoned and the fact that they cannot be justified in a system of self-government to be also generally recognized and acknowledged. Justice Brennan has performed a public service by bringing this extremely important and little understood issue to greater public attention, conveniently summarizing the standard arguments for "noninterpretivist" or "nonoriginalist" review i.e., what is popularly referred to as "judicial activism" and stating his own position with unusual, even if not total, clarity and candor.
Defenders of judicial activism face the dilemma that, on the one hand, judicial policy making cannot be defended as such in our system the justices, even Justice Brennan must concede, are not authorized to enact their "personal moral predilections" into law and must therefore claim that their decisions derive somehow from the Constitution. On the other hand, it happens that the Constitution is most ill-suited as a basis for substantial judicial policy making by frequent judicial intervention in the political process in the name of protecting individual rights from majority rule. The central difficulty is that although the Constitution does create some individual rights, they are actually rather few, fairly well-defined, and rarely violated. The first task of the defender of judicial activism, therefore, is to dispose of the Constitution as unhelpful, inadequate, or irrelevant to contemporary needs. Reasons must be found why the Constitution cannot be taken to mean what it rather clearly is known to mean especially when read, as all writings must be, in historical context or, even better, to have any determinate meaning at all.
After disposing of the Constitution by depriving it of its historic meaning, the next task of defenders of judicial activism is to imagine a much more expansive, elevated, and abstract constitution that, having no specific meaning, can be made to mean anything and serve therefore as simply a mandate for judges to enact their versions of the public good. In response to the objection that the very thinly veiled system of government by judges thus achieved is obviously inconsistent with democracy, the argument is made that the value of democracy is easily overrated and its dangers many. The "very purpose of a Constitution," as Justice Brennan states the standard argument, is to limit democracy by declaring "certain values transcendent, beyond the reach of temporary political majorities." In any event, no real inconsistency with democracy is involved, the argument concludes, because the judges, though unrestrained by the actual text of the Constitution, will continue to be restrained by its principles, the adaptation of which to changing circumstances is the true and indispensable function of judges. Justice Brennan's speech can serve as a textbook illustration of each of these moves.
Justice Brennan's attack on the notion of a constitution with a determinable historic meaning could hardly be more thorough. First of all, he finds that the Court's "sources of potential enlightenment" as to the intended meaning are often "sparse or ambiguous." Even more serious, the search for meaning is likely to be futile in any event because even the Framers, he believes, usually did not know what they meant: "Typically, all that can be gleaned is that the Framers themselves did not agree about the application or meaning of particular constitutional provisions, and hid their differences in cloaks of generality." Then there is the question of "whose intention is relevant that of the drafters, the congressional disputants, or the ratifiers in the states?" Indeed, there is the most basic question of all, whether the very notion of intent makes sense, "whether the idea of an original intention is a coherent way of thinking about a jointly drafted document drawing its authority from a general assent of the states." It is almost as if the Constitution and its various provisions might have been drafted and adopted with no purpose at all. Finally, there is the problem that "our distance of two centuries cannot but work as a prism refracting all we perceive." For all these reasons, the idea that judicial review is legitimate only if faithful to the intent of the Framers can be held only by "persons who have no familiarity with the historical record."
Justice Brennan has still another, although it would seem unnecessary, nail to put in the coffin of the now demolished Constitution. Should any shred of constitutional meaning somehow survive the many obstacles he sees to finding it, he would accord it little or no value. The world of the Framers is "dead and gone," and it would not do, he believes, to hold the Constitution captive to the "anachronistic views of long-gone generations." "[A]ny static meaning" the Constitution "might have had" in that dead world must, therefore, be of dubious relevance today. In any event, "the genius of the Constitution rests," in his view, not in any such meaning but in "the adaptability of its great principles to cope with current problems and current needs." Strange as it may seem, a writing can be great apart from its meaning and solely by reason of its supposed ability to mean anything.
Most of Justice Brennan's objections regarding the difficulties of constitutional interpretation have some basis, but they could also be made in regard to interpretation of almost any law. For example, one can almost always wish for a clearer or more detailed legislative history, and it is always true that legislators cannot foresee and agree on every possible application of a law. If these difficulties made the effort to determine legislative intent futile, a system of written law would hardly be possible. In any event, from the premise of an unknowable or irrelevant Constitution, the conclusion should follow that judges have no basis or justification for declaring laws unconstitutional, not that they are therefore free to invalidate laws on some other basis and still claim to be interpreting the Constitution.
Most important, whatever the difficulties of legal interpretation, they have little or no relevance to actual constitutional decision making by the Supreme Court because no issue of interpretation, no real dispute about the intended meaning of the Constitution, is ordinarily involved. For example, the Constitution contains no provision mentioning or apparently in any way referring to the authority of the states to regulate the practice of abortion. However one might undertake to defend the Court's abortion decisions, it does not seem possible to argue that they are the result of constitutional interpretation in any non-fanciful sense. As another example, although the Constitution does mention religion, no process that could be called interpretation permits one to go from the Constitution's protection of religious freedom from federal interference to the proposition that the states may not provide for prayer in the schools.
A constitution so devoid of ascertainable meaning or contemporary relevance would seem quite useless as a guide to the solution of any contemporary problem and certainly as a written law enforceable by judges. The judges might as well be told to enforce a document written in an unknown language or, more in keeping with Justice Brennan's view, in disappearing ink. Having effectively eliminated the actual Constitution, however, Justice Brennan proceeds to remedy the loss judicial activism cannot proceed with no constitution at all by imagining and substituting a much more impressive, inspiring, and usefully uncertain one.
The Constitution as Written
The constitution of Justice Brennan's vision is undoubtedly a wonderful thing, one of "great" and "overarching" principles and "majestic generalities and ennobling pronouncements [that] are both luminous and obscure." It is nothing less grand than the embodiment of "the aspiration to social justice, brotherhood, and human dignity that brought this nation into being," "a sublime oration on the dignity of man," and "a sparkling vision of the supremacy of the human dignity of every individual." Justice Brennan accurately reflects current constitutional law scholarship, here as throughout his speech, by seeing the Constitution as simply "the lodestar for our aspirations." It is a source of constant wonderment that scholars and judges of otherwise the most secular and rationalist turn of mind can grow mystical when discussing the Constitution.
The temptation is strong, of course, to dismiss Justice Brennan's rapturous statements as mere flights of poetic fancy or Utopian ecstasy, obviously not meant as serious descriptions or explanations of the Constitution. The fact remains, however, that this view of the Constitution is the only justification offered by him, or other contemporary defenders of judicial activism, for the Court's assumption and exercise of enormous government power. Fanciful as it may seem, a constitution that is simply the embodiment of "our," or at least his, aspirations accurately describes the constitution he has been enforcing for nearly three decades to override the will of the people of this country on issue after issue. It cannot be too strongly emphasized, therefore, that the Constitution we actually have bears almost no relation to, and is often clearly irreconcilable with, the constitution of Justice Brennan's vision. No more is necessary to rebut all contemporary defenses of judicial activism than that a copy of the Constitution be kept close at hand to demonstrate that the defenders of judicial activism are invariably relying on something else.
Although it may come as something of a disappointment to some, an "aspiration for social justice, brotherhood, and human dignity" happens not to have been what brought this nation, or at least the government founded on the Constitution, into being. The convention to revise the Articles of Confederation was called and the Constitution was drafted and ratified not to provide additional protections for human rights on the contrary, the stronger national government created by the Constitution was correctly seen as a potential danger to human rights but almost entirely for commercial purposes. The primary motivating force for the creation of a stronger national government was the felt need of a central authority to remove State-imposed obstacles to interstate trade. How little the Constitution had to do with aspirations for brotherhood or human dignity is perhaps most clearly seen in its several provisions regarding slavery. It provides, for example, that a slave was to be counted as three-fifths of a free person for purposes of representation and that slaves escaping to free states were nonetheless to be returned to their masters. It is not, as Justice Brennan would explain this, that part of the "egalitarianism in America has been more pretension than realized fact," but that there was at the time the Constitution was adopted very little pretension to egalitarianism, as is illustrated by, for example, the widespread use of property qualifications for voting.
Given the original Constitution's limited and mundane purposes, it is not surprising that it provides judges with little to work with for the purpose of advancing their personal notions of social justice. The Constitution is, first of all, a very short document easily printed, with all twenty-seven amendments and repealed matter, on fewer than twenty pages and apparently quite simple and straightforward, not at all like a recondite tome in which many things may be found with sufficient study. The original Constitution is almost entirely devoted to outlining the structure of the national government and setting forth the sometimes complicated methods of selection, and the responsibilities, of members of the House of Representatives, senators, the president, and Supreme Court justices. It contains few provisions protecting individual rights from the national government federalism, i.e., limited national power and a high degree of local autonomy, was considered the principal protection and even fewer restrictions on the exercise of state power. As to the national government, criminal trials are to be by jury, treason is narrowly defined, the writ of habeas corpus is protected, and bills of attainder and ex-post-facto laws are prohibited. The prohibition of bills of attainder and ex-post-facto laws is repeated as to the states, which are also prohibited from discriminating against citizens of other states. Finally and by far the most important in terms of actual challenges to state laws, the Framers, nicely illustrating their lack of egalitarian pretension, undertook to protect creditors from debtor-relief legislation by prohibiting the states from impairing contract rights.
The first eight of the first ten amendments to the Constitution, the Bill of Rights adopted in 1791, provide additional protections of individual rights, but only against the federal government, not the states, and these, too, are fewer than seems to be generally imagined and certainly fewer than is typical of later declarations of rights, such as in the United Nations Charter. In terms of substantive rights, the First Amendment prohibits Congress from establishing or restricting the free exercise of religion the main purpose of which was to leave matters of religion to the states and from abridging the freedom of speech, press, or assembly. In addition, a clause of the Fifth Amendment prohibits the taking of private property without just compensation; the Second Amendment, rarely mentioned by rights enthusiasts, grants a right to bear arms; and the Third Amendment, of little apparent contemporary significance, protects against the forced quartering of troops in private homes. The Seventh Amendment, requiring jury trials in civil cases involving more than twenty dollars, is hard to see today as other than an unnecessary inconvenience. The remaining provisions (search and seizure, grand-jury indictment, double jeopardy, privilege against self-incrimination, due process, jury trial, right to counsel and to confront adverse witnesses, and cruel and unusual punishment) are related to criminal procedure.
Additional protections of individual rights are provided by the post-Civil War Amendments. The Thirteenth Amendment prohibits slavery and the Fifteenth prohibits denial of the right to vote on grounds of race. The great bulk of constitutional litigation concerns state laws and nearly all of that litigation purports to be based on a single sentence of the Fourteenth Amendment and, indeed, on one or the other of two pairs of words, "due process" and "equal protection." If the Constitution is the embodiment of our aspirations, it must have become so largely because of those four words. The clear historic purpose of the Fourteenth Amendment, however, was to provide federal protection against certain state discriminations on the basis of race, historically our uniquely intractable problem, but not otherwise to change fundamentally the constitutional scheme. Finally, the Nineteenth Amendment protects the right to vote from denial on grounds of sex, and the Twenty-seventh from denial on grounds of age for persons over eighteen.
The Constitution's protections of individual rights are not only few but also, when read in historical context, fairly clear and definite. State and federal legislators, all of whom are American citizens living in America and generally at least as devoted as judges to American values, have, therefore, little occasion or desire to violate the Constitution. The result is that the enactment of a clearly unconstitutional law is an extremely rare occurrence: the clearest example in our history perhaps is a 1933 Minnesota debtor-relief statute plainly prohibited by the contract clause, although, as it happens, the Supreme Court upheld it by a five-to-four decision. If judicial review were actually confined to enforcing the Constitution as written, it would be a much less potent force than the judicial review argued for and practiced by Justice Brennan.
The Constitution is undoubtedly a great document, the foundation of one of the freest and most prosperous nations in history. It does not detract from that greatness to point out that it is not, however, what Justice Brennan would make of it, a compendium of majestic generalities and ennobling pronouncements luminous and obscure; indeed, its greatness and durability surely derive in large part from the fact that the Framers' aims were much more specific and limited. Far from intending to compose an oration to human dignity, the Framers would have considered that they had failed in their effort to specify and limit the power of the national government if the effect of the Constitution should be to transfer the focus of human-rights concerns from the state to the national level. The Framers' solution to the problem of protecting human freedom and dignity was to preserve as much as possible, consistent with national commerce and defense requirements, a system of decentralized democratic decision making, with the regulation of social conditions and personal relations left to the states. Justice Brennan's solution means virtually unlimited Supreme Court power to decide basic social issues for the nation as a whole, effectively disenfranchising the people of each state as to those issues, and is directly contrary to the constitutional scheme.
The Right of Self-Government
Judicial review on the basis of a constitution divorced from historical meaning and viewed, instead, as simply "the lodestar for our aspirations" is obviously a prescription for policy making by judges. It should therefore be defended, if at all, as such, free of obfuscating references to "interpretation" of the Constitution. The only real question it presents is, why should the American people prefer to have important social-policy issues decided for the whole nation by the Supreme Court a committee of nine lawyers unelected to and essentially unremovable from office rather than by the decentralized democratic process? Justice Brennan's answer to this question is, in essence, why not? The argument that judicial interpretation of the Constitution in accordance with the Framers' intent is essential for "depoliticization of the judiciary," he points out, has its own "political underpinnings"; it "in effect establishes a presumption of resolving textual ambiguities against the claim of constitutional right," which involves "a choice no less political than any other."
Justice Brennan is certainly correct that the presumption of constitutionality accorded to challenged acts of government officials has a political basis, but it is surprising that he should find "far from clear what justifies such a presumption." What justifies it is the basic premise of democratic government that public-policy issues are ordinarily to be decided through the electoral process, not by unelected judges; that constitutional restrictions on representative government even if, unlike judge-made restrictions, they were once democratically adopted are the exception, not the rule. To refuse to assume the validity of the acts of the electorally responsible officials and institutions of government is to refuse to assume the validity of representative self-government. It has, therefore, from the beginning been considered the bedrock of constitutional litigation that one who would have a court invalidate an act of the political branches must assume the burden of showing its inconsistency with the Constitution, ordinarily a most difficult task. By reversing the presumption of constitutionality, Justice Brennan would simply reject political decision making as the norm and require elected representatives to justify their policy choices to the satisfaction of Supreme Court justices, presumably by showing that those choices contribute to the justices' notion of social progress.
Justice Brennan would justify the judicial supremacy he favors on the not entirely consistent grounds that, on the one hand, the justices are the true voice of the people and, on the other, that the people are in any event not always to be trusted. "When justices interpret the Constitution," Justice Brennan assures us, "they speak for their community, not for themselves alone" and "with full consciousness that it is, in a very real sense, the community's interpretation that is sought." Apart from the fact that no question of constitutional interpretation is in fact involved in most "constitutional" cases the judges do not really decide cases by studying the words "due process" or "equal protection" the community is, of course, fully capable of speaking for itself through the representatives it elects and maintains in office for that purpose. Justice Brennan does not explain why he thinks the community needs or wants unelected judges to speak for it instead or why the judges can be expected better to reflect or express the community's views.
The actual effect of most judicial rulings of unconstitutionality is, of course, not to implement, but to frustrate the community's views. For example, Justice Brennan would disallow capital punishment as constitutionally prohibited despite not only the fact that it is repeatedly provided for in the Constitution, but also the fact that it is favored by a large majority of the American people. In some cases, however, he explains, a justice may perceive the community's "interpretation of the text to have departed so far from its essential meaning" that he "is bound, by a larger constitutional duty to the community, to expose the departure and point toward a different path." On capital punishment, Justice Brennan hopes to "embody a community striving for human dignity for all, although perhaps not yet arrived." Interpreting an aspirational constitution apparently requires prescience as well as a high degree of self-confidence.
The foundation of all defenses of judicial activism, however, is not any fanciful notion that the judges are the true voice of the people, but on the contrary, the conviction that the people and their elected representatives, should not be permitted to have the last word. Rarely has this conviction, common among our intellectual elite, been expressed with more certainty than in Justice Brennan's speech. Judicial acceptance of the "predominant contemporary authority of the elected branches of government" must be rejected, he argues, for the same reason he rejects judicial acceptance of the "transcendent historical authority of the Framers." That reason, it now appears, is not so much that original intent is unknowable or irrelevant as that its acceptance as authoritative would be inconsistent with his notion of "proper judicial interpretation" of the Constitution because it would leave judges with too little to do. "Faith in the majoritarian process," like fidelity to original intent, is objectionable, he is frank to admit, simply because it "counsels restraint." It would, he points out, lead the Court generally to "stay its hand" where "invalidation of a legislature's substantive policy choice" is involved. Justice Brennan's confidence that his university audience shared his suspicion of democracy and distrust of his fellow citizens was such as to put beyond need of argument the unacceptability of a counsel of restraint by Supreme Court Justices in deciding basic issues of social policy.
Legislative supremacy in policy making is derided by Justice Brennan as the "unabashed enshrinement of majority will." "Faith in democracy is one thing," he warns, but "blind faith quite another." "The view that all matters of substantive policy should be resolved through the majoritarian process has appeal," he concedes, but only "under some circumstances," and even as so qualified "it ultimately will not do." It will not do because the majority is simply not to be trusted: to accept the mere approval of "a majority of the legislative body, fairly elected," as superior in public-policy issues would be to "permit the imposition of a social-caste system or wholesale confiscation of property," a situation "our Constitution could not abide." How a people so bereft of good sense, toleration, and foresight as to adopt such policies could have adopted the Constitution in the first place is not explained. Justice Brennan seems to forget that if the Constitution prohibits such things indeed, if it is an oration to human dignity, as he maintains it must be because the American people have made it so and therefore, it would seem, can be trusted. It cannot be Justice Brennan's position that political wisdom died with the Framers and that we are therefore fortunate to have their policy judgments to restrain us; he rejects those judgments as unknowable or irrelevant. Like other defenders of judicial activism, however, he seems to view the Constitution not as an actual document produced by actual people but as a metaphysical entity from an extraterrestrial source of greater authority than the mere wishes of a majority of the American people, which source, fortunately, is in effective communication with Supreme Court Justices.
The social-caste system feared by Justice Brennan would probably be prohibited by the post-Civil War amendments, without undue stretching, and confiscation of property by the national government though not by the states would be prohibited by the just-compensation clause of the Fifth Amendment. (These constitutional provisions, it may be noted in passing, would operate as impediments to such policies, providing grounds for opposing arguments, even if they were not judicially enforceable.) The real protection against such fears, however and columnist Anthony Lewis's similar fear that without activist judicial review Oregon might establish the Reverend Sun Myung Moon's Unification Church as the official state religion is simply the good sense of the American people. No extraordinary degree of confidence in that good sense is necessary in order to believe that these and similarly outrageous policies that are invariably offered as providing an unanswerable justification
for judicial activism are so unlikely to be adopted as not to be a matter of serious concern. If they should be a matter of concern nonetheless if, for example, it is truly feared that the people of some state might establish a church and believed that no state should be free to do so the appropriate response would be the adoption of a constitutional amendment further limiting self-government in the relevant respects. To grant judges an unlimited power to rewrite the Constitution, Justice Brennan's recommended response would be to avoid largely imaginary dangers of democratic misgovernment by creating a situation in which judicial misgovernment is guaranteed.
Judicial activism is not necessary to protect us from state-established churches, favored by almost no one, but it does operate to deprive the people of each state of the right to decide for themselves such real issues as whether provision should be made for prayer in the public schools. In any event, the issue presented by contemporary judicial activism is not whether majority rule is entirely trustworthy all government power is obviously dangerous or even whether certain specific constitutional limitations on majority rule might not be justifiable; the issue is whether freewheeling policy making by Supreme Court justices, totally centralized and undemocratic, is more trustworthy than majority rule.
Defenders of judicial activism invariably match their skepticism about democratic policy making with a firm belief in the possibility and desirability of policy making on the basis of principle. To free judicial review from the constraint of a constitution with a determinate meaning is not to permit unrestrained judicial policy making in constitutional cases, it is argued, for the judges will continue to be constrained by the Constitution's principles, which, like the smile of the Cheshire cat, somehow survive the disappearance of the Constitution's text. According to this argument, judicial activism amounts to nothing more than the adaptation and application of these basic principles to changing circumstances, a necessary task if the Constitution is to remain a "living document" and a contributor rather than an obstacle to the national welfare. Thus, judicial activism is necessary in Justice Brennan's view, as already noted, if we are not to "turn a blind eye to social progress and eschew adaptation of overarching principles to changes of social circumstance" and because the genius of the Constitution rests not in what, if anything, the Framers actually intended to provide, but in the "adaptability of its great principles to cope with current problems and current needs."
The argument that judges are constrained by constitutional principles, even though not by the constitutional text, bears no relation to reality. In the first place, it is not possible to formulate useful constitutional principles apart from or beyond the Constitution's actual provisions. The Constitution protects certain interests to a certain extent, from which fact the only principle to be derived is that the Constitution does just that. An even more basic fallacy is the argument's assumption that the solution of social problems lies in the discovery, adaptation, and application of preexisting principles to new situations. Difficult problems of social choice arise, however, not because of some failure to discern or adapt an applicable principle, but only because we have many principles, many interests we regard as legitimate, and they inevitably come into conflict. Some interests have to be sacrificed or compromised if other interests are to be protected for example, public demonstrations will have to be regulated at some point in the interest of maintaining public order and there is no authoritatively established principle, rule, or generality that resolves the conflict. If there were such a principle, the conflict would not present a serious problem, but would be a matter that has already been decided or that anyone can decide who can read and reason. Value judgments have to be made to solve real policy issues, and the meaning of self-government is that they are to be made in accordance with the collective judgment of those who will have to live with the results.
There is also very little basis for Justice Brennan's apparent belief that judicial review confined to the Constitution as written would somehow be incompatible with social progress unless social progress is simply defined as the enactment of his views. The Constitution does contain several provisions that we would probably be better off without, for example, the Seventh Amendment's requirement of a jury trial in federal civil cases involving more than twenty dollars and the Twenty-second Amendment's limitation of presidents to two terms. Apart from the fact, however, that the Constitution, of course, provides procedures for its amendment it can be updated if necessary without the Court's help judicial activism has not generally served to alleviate the undesirable effects of such provisions. In any event, the Constitution's restrictions on self-government are, as already noted, relatively few and rarely such as a legislature might seek to avoid. Rarely if ever will adaptation of the Constitution's overarching principles, if any, be necessary in order to permit a legislature to implement its views of social progress.
Indeed, on the basis of our actual constitutional history which includes the Supreme Court's disastrous decision that Congress could not prohibit the extension of slavery, helping after the Civil War bring on the decision that Congress could not prohibit racial segregation in public places it is possible to believe that social progress might go more smoothly without the Court's supposed adaptations of principles. If the Constitution can be said to have an overarching principle, the principle of federalism, of decision making on most social-policy issues at the state level, is surely the best candidate, and that principle is not adapted or updated but violated by the Court's assertion of power to decide such issues. Far from keeping the Constitution a "living document," judicial activism threatens its demise.
Whatever merit Justice Brennan's justifications for judicial activism might have in theory, they do not seem relevant to the judicial activism actually practiced by the Supreme Court for the past three decades. It would be very difficult to justify the Court's major constitutional decisions during this period, and particularly its most controversial decisions, on any of the grounds Justice Brennan suggests. It would not seem possible to argue, for example, that the justices spoke for the community, not for themselves, in reaching their decisions on abortion, busing, criminal procedure, and prayer in the schools. Nor does it seem that any of those decisions can be justified as providing a needed protection from a possible excess of democracy, as merely delaying effectuation of the aberrational enthusiasm of "temporary political majorities" until they could return to their senses. Judicial review may, as Chief Justice Harlan Fiske Stone put this standard rationalization, provide the people with an opportunity for a "sober second thought," but no amount of thought or experience is likely to change the view of the vast majority of the American people that, for example, their children should not be excluded from their neighborhood public schools because of their race or that no new protections of the criminally accused should be invented with the effect of preventing the conviction and punishment of the clearly guilty.
Finally, the contribution of most of the Court's constitutional decisions of recent decades to social progress for example, its decision that California may not prohibit the parading of vulgarity in its courthouses or that Oklahoma may not impose a higher minimum drinking age on men than on women is at best debatable. Very few of these decisions, it seems, could be used to illustrate the adaptation of overarching constitutional principles or transcendent constitutional values to changing circumstances. They could probably more easily be used to illustrate that, rather than helping us to cope with current problems and current needs, the Court's constitutional decisions have often been the cause of those problems and needs.
Whatever the merits of the Supreme Court's constitutional decisions of the past three decades, they have, as to the issues decided, deprived us of perhaps the most essential element of the human dignity Justice Brennan is concerned to protect, the right of self-government, which necessarily includes the right to make what others might consider mistakes. It is not the critics of judicial activism but the activist judges who can more properly be charged with being doctrinaire and arrogant, for it is they who presume to know the answers to difficult questions of social policy and to believe that they provide a needed protection from government by the misguided or ignorant. An opponent of judicial activism need not claim to know the answer to so difficult a question of social policy as, say, the extent if any, to which abortion should be restricted to know that it is shameful in a supposedly democratic country that such a question should be answered for all of us by unelected and unaccountable government officials who have no special competence to do so.
1. "The Constitution of the United States: Contemporary Ratification," delivered at a "Text and Teaching Symposium," October 12, 1985. All other quotations from Justice Brennan are taken from this source unless otherwise indicated.
The Moral Foundations of Republican
Edwin Meese III
Taking the opportunity to pause and reflect on the roots of our freedom is always an important thing for us to do. But it is especially important now, as we prepare to celebrate the bicentennial of our Constitution. For our Constitution remains, as William Gladstone, the great British statesman once described it, "the most wonderful work ever struck off at a given time by the brain and purpose of man."
Too frequently we view our Constitution primarily from the standpoint of litigation, as little more than a lawyer's brief or a judge's opinion. But it is, as you know, far more than that. Not only is the Constitution fundamental law, it is also the institutional expression of the philosophical foundation of our political order, the basis of our very way of life. George Roche has explained why this is so as clearly as anyone. "The Founding Fathers," he has written,
derived their principles of limiting government and protecting individual rights from a belief in Natural Law; that is, a belief that God had ordained a framework of human dignity and responsibility that was to serve as the basis for all human law and as the root assumption behind a written constitution.
During this bicentennial period especially it is crucial that we cast aside the notion that the Constitution is only a litigator's brief or a judge's opinion. Our task is to reawaken public opinion to the fact that our substantive constitutional values have a shape and content that transcend the crucible of litigation.
In order to successfully effect this reawakening, it is necessary to move beyond the current legal debate over jurisprudence. It is, in fact, necessary to move beyond current legal cases and controversies to the political and social milieu of the era in which our Constitution was written. We need to understand the generation of Founders not simply as a historical curiosity. Our obligation is to understand the Founders as they understood themselves.
Now this is no small task. And my remarks are obviously merely an introduction to what is, by any measure, an area of inquiry as intellectually complex as it is politically rich. I would like to offer a few general observations about the moral foundations of the government the Founders designed. In particular, I will argue that the ideas of natural rights and the consent of the governed are essential to understanding the moral character of our civil society. Further I will discuss the institutional forms of the Founders' politics that facilitated the cultivation of virtue in our people virtues upon which our form of government still depends.
In approaching this subject, we first need to remember that our Founders lived in a time of nearly unparalleled intellectual excitement. They were the true children of the Enlightenment. They sought to bring the new found faith in human reason to bear on practical politics. Hobbes and Locke, Harrington and Machiavelli, Smith and Montesquieu these were the teachers of our Founders. These were the authors of celebrated works that had called into question long-prevailing views of human nature and thus of politics. Our nation was created in the light cast by these towering figures. That is what Alexander Hamilton meant in The Federalist Papers when he argued that the "science of politics ... like most other sciences has received great improvement. The efficacy of various principles is now well understood, which were either not known at all, or imperfectly known to the ancients." Our Founders, in many ways, sought to give practical effect to David Hume's desire "that politics may be reduced to a science."
Natural Rights and Consent of the Governed
What, then, are the moral foundations of our republican form of government? Much of the answer, I believe, can be found in our charter of fundamental principles, the Declaration of Independence. I think it is worth recalling Thomas Jefferson's famous formulation of these first principles. "We hold these truths," he said, "to be self-evident,"
That all men are created equal, that they are endowed by their Creator with certain inalienable rights, that among these are Life, Liberty, and the pursuit of Happiness. That to secure these rights, Governments are instituted among Men deriving their just powers from the consent of the governed.
Now these rights were neither the result of legal privilege nor the benevolence of some ruling class. They were rights that existed in nature before governments or laws were ever formed. As the physical world is governed by natural laws such as gravity, so the political world is governed by other natural laws in the form of natural rights that belong to each individual. These rights, like the laws of gravity, antedated even mankind's recognition of them.
But because these rights were left unsecured by nature, as Jefferson said, governments are instituted among men. Thus there exists in the nature of things a natural standard for judging whether governments are legitimate or not. That standard is whether or not the government rests, in the phrase of the Declaration, upon the consent of the governed. Any political powers not derived from the consent of the governed are, by the laws of nature, illegitimate and hence unjust. Only by such a natural standard can arbitrary power be checked.
"Consent of the governed" is a political concept that is the reciprocal of the idea of equality. Because all men are created equal, nature does not single out who is to govern and who is to be governed. There is no divine right of kings, for example. Consent is the means whereby man's natural equality is made politically operable.
In this theory of government, this philosophy of natural rights and the consent of the governed, we find the most fundamental moral foundation of republican government. For it presupposes a universal moral equality that makes popular government not only politically possible but morally necessary.
However accustomed we have become to ideas of natural rights and the consent of the governed, we should never lose sight that these were, two centuries ago, morally revolutionary ideas. During this bicentennial period we should refresh ourselves as to the truth of these ideas.
Of course, it is one thing to argue that the only legitimate foundation of government is the consent of the governed, but it is quite another matter to put this theory into practice. The key here is the Declaration's maxim that in order to secure rights "governments are instituted among men" It is then, by the act of choosing, by the political act of constituting a government, that the moral standard of the consent of the governed is given definite shape and formidable weight. But such an act of creation is not easy.
That is what Alexander Hamilton had in mind when he introduced the first essay in The Federalist Papers by asking the question of "whether societies of men are really capable or not, of establishing good government from reflection and choice, or whether they are forever destined to depend, for their political constitutions, on accident and force." For after all was said and done, after the Revolution had been won, it remained to be seen whether the glowing rhetoric of the Declaration could actually be made the standard of political practice.
One thing their recent experience with England had taught the Americans was the necessity of a constitution. And not just any sort of constitution would do. The celebrated English Constitution, after all, had allowed what they saw as a gross abuse of political power. That, we must remember, is what most of the Declaration of Independence is about: the long catalogue of abuses the Americans had suffered. This experience with the all-too-malleable English Constitution bolstered their own earlier inclinations from the Mayflower Compact on toward a written constitution. The one best way to hedge against arbitrary political power was to clearly stake out the lines and limits of the institutions that would wield power. Thus the purpose of our written Constitution was, as Walter Berns has said, to get it in writing.
This belief in a written constitution was the fulfillment of the more basic belief in the moral authority of the consent of the governed. A written constitution, when duly ratified, would stand as the concrete and tangible expression of that fundamental consent. This document would stand as testimony to the Founders' unfaltering faith in (to borrow the late scholar Alexander Bickel's term) the "morality of consent."
The question facing the Americans then became how to devise such a constitution that would, in the language of the Declaration, be "most likely to effect their Safety and Happiness." Indeed, as James Madison would bluntly put it later in The Federalist Papers, "A good government implies two things; first, fidelity to the object of government, which is the happiness of the people; second, a knowledge of the means by which that object can be best attained."
After the War for Independence was won, the Americans set about to secure their revolution. The states began to draft their constitutions and the confederation of the states sought to draft a constitution for its purposes. By 1787, one thing had become clear. Popular government was not simply good government. The state governments had, in many instances, proved tyrannical. The national authority under the Articles of Confederation had proved inept. The period between 1776 and 1787 had shown many Americans that they did not yet possess that "knowledge of the means" by which the happiness of the people could best be secured.
By the time the federal convention came together in Philadelphia in May 1787, however, there was a collection of men who had thought through the causes of their present difficulties. They were convinced that the mechanics of republican government could be adjusted in order to defend against charges that it was "inconsistent with the order of society." What was at issue was the very question of the moral basis of the republican form: Could a republic be saved from its own excesses? A sufficient number of Americans believed it could. And they set about to do just that.
These young men of the Enlightenment, these students of Hobbes and Locke and Montesquieu, believed themselves capable of devising a republic "of a more perfect structure," as Hamilton put it in The Federalist Papers. The reason, he said, was relatively simple:
The science of politics ... like most other sciences has received great improvement. The efficacy of various principles is now well understood, which were either not known at all, or imperfectly known to the ancients. The regular distribution of power into distinct departments the introduction of legislative balances and checks the introduction of courts composed of judges holding their offices during good behavior the representation of the people in the legislature by deputies of their own election these are either wholly new discoveries or have made their principal progress towards perfection in modern times.
This new science of politics, Hamilton confidently argued, provided the "powerful means by which the excellencies of republican government may be retained and its imperfections lessened or avoided."
Now one of the basic problems of the old political order was what many began to see as an unhealthy reliance on the virtue of the people. In many ways, the earlier republicans in America, those historian Pauline Maier has dubbed the "Old Revolutionaries," had created their constitutions in light of their belief that somehow the Americans were a new breed of man, self-reliant, commonsensical and, above all, civically virtuous. They had thought themselves uniquely capable of continuing self-denial and unfaltering devotion to the public good. As a result, the constitutional order they had created depended to a great degree on "Spartan habits" and "Roman patriotism." By the mid-1780s it was clear to many that to love the public and to sacrifice personally for it was proving more easily said than done. Americans, too, it seemed, were corruptible. And this unhappy fact called into question the old assumption that Americans were somehow blessed with exceptional character.
By 1786, Rufus King (later a delegate to the Federal Convention) confessed that:
if the great Body of people are without Virtue, and not governed by any internal Restraints of Conscience, there is but too much room to fear that the Framers' of our constitutions and laws have proceeded on principles that do not exist, and that America, which the Friends of Freedom have looked to as an Asylum when persecuted, will not afford that refuge.
By 1788 Alexander Hamilton was even more pointed in his criticism. In The Federalist Papers he argued that Americans were clearly "yet remote from the happy empire of perfect wisdom and perfect virtue." Experience had proved beyond much doubt, he said, that men are by nature "ambitious, vindictive and rapacious." Indeed, Hamilton concluded, the very reason government was necessary was because "the passions of men will not conform to the dictates of reason and justice without constraint."
Hamilton's perspicacious collaborator Madison was even more succinct. "If the impulse and opportunity be suffered to coincide," he wrote in the famous tenth Federalist Paper, "we well know that neither moral nor religious motives can be relied on as an adequate control." In what is arguably one of the most famous passages in American political writing, Madison laid the theoretical foundation for the Framers' "novel experiment" in popular government. Reflecting on the institutional contrivances of the new Constitution, Madison, in The Federalist No. 51 neatly captured his new theory of republican government. His theory, at its deepest level, relied on a certain understanding of human nature. Thus, he wrote, "what is government itself but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controuls would be necessary." However, he concluded, "In framing a government which is to be administered by men over men, the great difficult lies in this; you must first enable the government to controul the governed; and in the next place, oblige it to controul itself."
According to Madison the purpose of the Constitution's mechanics separation of powers, bicameralism, representation, and so forth was to hedge against an all too predictable human nature. The object was to offset "the defect of better motives." Good intentions were to be replaced by good institutions.
Commerce and Civic Virtue
To many, the most shocking feature of the Framers' new science of politics was its bold and nearly unqualified reliance on the power of commerce to make civil society orderly. This was a truly radical step. Commerce, you see, had long been thought to be the primary cause of corruption of the manners and the morals of free people. And private vice, the prevailing belief held, could never produce public virtue. We take commerce so much for granted that this idea is puzzling to our generation. But to many of the founding generation, commerce produced greed and venality it brought forth, as its critics said, the worst impulses of mankind. One Anti-Federalist critic of the proposed Constitution summed it up by arguing that such a reliance on commerce would encourage an "excessive fondness for riches and luxury" that would, if left untempered, and unchecked by a concern for public virtue, "totally subvert the government and erect a system of aristocratical or monarchaic tyranny," thereby losing "perhaps forever" the liberties of the people.
The new science of politics of the Constitution was as bold as those Founders who pushed the hardest for it. They were, as one historian has described them, young men of a continental vision. This was the time of Madison and Hamilton and Morris; the day of Adams and Franklin and Lee was quickly passing. They saw more in America than just America. They saw in the founding a great example for all the world. And they believed that commerce was an essential part of this vision.
So it was that these young nationalists rejected the cautious confederalism of the older generation of Founders. Their object was not to secure a confederacy of small and virtuous republics of public spirited citizens. Their object was in the words of one of their guiding lights, Adam Smith to establish a "great mercantile republic." Indeed, they sought to establish nothing less than a great republican empire of commerce.
Unleashed, these nationalists believed, the commercial power of self-interest that the Anti-Federalists feared, could be turned to republican advantage. By drawing people together, by making them work together for their private gain, commerce could help to tame human nature. Brutish greed would become a prudent concern for profits. A nation of shopkeepers would not be characterized by crude self-interest but by what Alexis de Tocqueville would later celebrate as "enlightened self-interest." While commerce would surely depend upon human passions, it would also serve to moderate them. Commerce and constitutionalism together would make Americans free and prosperous at home and secure among the nations of the world. America would be, they believed, a new kind of republic in a world itself quite new.
But what of civic virtue? Would there be none? Surely there would have to be, because the new science of politics demanded it. As Madison pointed out in the Virginia ratifying convention, a certain degree of virtue was necessary if our form of civil society was to endure.
As we have seen, the political science of the Founding Fathers did not seek to inculcate virtue in its citizens by the terms of the Constitution. But that document, as I have said, is, morally praiseworthy because it does protect natural rights and it does rest upon the consent of the governed. Still, the Founders understood the relevance of what I would call the "character question." They knew the oldest question of politics (the one Aristotle asked) the question of what kind of people does a regime produce, what kind of character do they have is always important.
Under the new political order of the Constitution, the cultivation of character was left to the states and the private sphere. Through the political principle of federalism, the Framers left to the people in their states sovereignty sufficient to legislate in these areas; state governments could attempt, under this scheme, directly to promote virtue among the people. In addition, family and church and private associations were expected to provide the support for the inculcation of virtue. And, in a curious way, even the thriving commercial republic the Founders envisioned would itself promote a new kind of public virtue. It would, of course, not be virtue in the classical or the Christian sense. Nor would it be the old small republican variety, starkly Spartan in its demands. Rather, it would be what the late Martin Diamond accurately described as the "bourgeois virtues" the virtues of honesty and decency that commerce itself, that business, presupposes.
But the question we must ultimately confront is how well has our Founders' constitutional handiwork in this regard fared? I suspect I will shock no one by suggesting that it fared very well for most of our history. For while not overtly concerned with morality, our Constitution, I submit, has produced the frame of government in which America has thrived as one of the most moral nations in the history of the world.
How is it that in America the moral concerns of republican government and the concomitant demand for individual liberty have been maintained in such a steady balance? At its deepest level, popular government republican government means a structure of government that not only rests upon the consent of the governed, but more importantly a structure of government wherein public opinion can be expressed and translated into public law and public policy. This is the deepest level precisely because public opinion over important public issues ultimately is a public debate over justice. It is naive to think that people only base their opinions on their conceptions of their narrow self-interest. Very often public opinion and political debates do reflect deeper concerns if you will, moral concerns.
It is this venting of the moral concerns of a people that is the very essence of political life. In a popular form of government it is not only legitimate but essential that the people have the opportunity to give full vent to their moral sentiments. Through deliberation, debate, and compromise a public consensus can be formed as to what constitutes the public good. It is this consensus over fundamental values that knits individuals into a community of citizens. And it is this liberty to debate and determine the morality of a community that is an important part of the liberty protected by our Constitution.
The toughest political problems deserve to have full and open public debate. Whether the issue is abortion, school prayer, pornography or aid to parochial schools, the people within their communities and within the several states must be allowed to deliberate over them and reach a consensual judgment.
This is not to say, of course, that the people must be allowed to choose any substantive end a majority prefers at any given moment. That is not good republican government; that is a simplistic notion of popular sovereignty. The political theory of our Constitution rejects such a simplistic theory. As one commentator has observed, "there are certain substantive things, such as slavery, that a democratic people may not choose because those substantive ends would be inconsistent with the fundamental premises that give majorities the right to decide."
But to deny the right the liberty of the people to choose certain other substantive ends reduces the American Constitution to moral relativism. In that direction lies the danger, to borrow Abraham Lincoln's phrase, of "blowing out the moral lights around us."
During the past several decades an aggressively secular liberalism often driven by an expansive egalitarian impulse has threatened many of the traditional political and social values the great majority of the American people still embrace. The strong gusts of ideology have indeed threatened to blow out the moral lights around us. This has been the result of our knocking down certain institutional barriers to national political power in particular, the abandonment of an appreciation for the necessity of the separation of powers, and for the continuing political importance of federalism.
I would argue that the demise of these two institutional arrangements has had a disastrous impact on the moral foundations of republican government. I would further argue that these deleterious developments should be abandoned as the dangerous innovations that they are, for they violate our most fundamental political maxim: that in a system of popular government, the people have the liberty and the legitimate power within certain limits to define the moral, political, and legal content of their public lives. When we allow this principle to be transgressed, we risk severing the necessary link between the people and the polity. Indeed, we cut the moral cord that binds us together in our common belief that we have a vital role to play in deciding how we live our collective lives.
We have an obligation today a moral obligation to restore those institutional arrangements that the Founders knew to be essential to the nurturing of public virtue. We have an obligation to restrict the insensitive intrusiveness of the national government in order to allow the most important decisions to be made by the people, not by what Adam Ferguson once called the "clerks and accountants" of a large and distant bureaucracy. We have an obligation to allow the states and communities the maximum freedom possible to structure their politics and infuse them with the moral tone they find most conducive to their happiness. This is, as I say, the moral obligation of our generation.
We may either reassert our right to govern ourselves or we can surrender to the stultifying leviathan of big government. We must restore those structures that will shore up our sagging moral foundations or we risk losing the liberties which rest upon those foundations.
A decade after the adoption of our Constitution, the Anti-Federalist Mercy Warren, with a good bit of melancholy, expressed her fear that in the end, her countrymen might be remembered as having been "too proud for monarchy, ... too poor for nobility, and ... too selfish and avaricious for a virtuous republic." While we may not ever be simply a virtuous people, we must surely endeavor to assuage Mercy Warren's fear by recognizing and perpetuating what Madison believed we possess: "sufficient virtue for self-government."
The Jurisprudence of Constitutional
Stephen J. Markman
There is the story that Daniel Webster, the great American lawyer, was on his last sickbed when he was visited by a friend. The friend said to him, "Well, cheer up Senator, I believe your constitution will pull you through." "Not at all," Webster responded, "my constitution was gone long ago, and I am living on my by-laws now."
Our own age is sadly short of statesmen the stature of the great Webster. But just as he jested in the face of troubles that his personal constitution had failed him, so do many Americans today feel seriously that their organic, political health as a people the Constitution of the United States is on its sickbed. And somewhat like Webster, many feel that we live today not so much by virtue of our Constitution, as by its more pastel interpretations.
My topic concerns the amendment process. Were I to limit myself to a simple description of how the Constitution may properly be amended, this would be a very short essay. I would quote the text of Article V, and be done. Instead, however, I would like to focus on a comparatively modern but nonetheless important phenomenon. It is the effort to amend the Constitution not to correct defects in the document's text or structure, but to overturn specific conclusions of the Supreme Court. My thesis is simply that while the history of successful and unsuccessful attempts to amend the Constitution has generally concerned perceived shortcomings in constitutional mechanisms or process, our age is concerned as never before with the substance of constitutional law as articulated by the courts. And it will be my argument that the manifold efforts to reverse the substance of Supreme Court pronouncements by constitutional amendment reflects a fundamental problem in contemporary Supreme Court jurisprudence.
Not since ratification of the Bill of Rights has Congress seriously considered so many separate constitutional amendment proposals. Until recently, the states were simultaneously entertaining for the first time since the Bill of Rights two proposed amendments to the Constitution (the Equal Rights Amendment and the Washington, D.C. Voting Rights Amendment). In the past several years, Congress has also given serious consideration to proposed amendments on abortion, school prayer, electoral college reform, the line item veto, and the balanced budget. Moreover, the Senate Subcommittee on the Constitution has conducted extensive hearings on diverse amendments relating to forced school busing, affirmative action, congressional pay levels, congressional and presidential tenure, the legislative veto, a system of national referenda, presidential transition periods, and English as an official language of the United States. Still other members have pressed for the consideration of amendments relating to immigration, campaign contributions, capital punishment, and the elimination of lifetime tenure for federal judges.
Generally, such debate and discussion is an important and legitimate part of the legislative process on Capitol Hill. Having served for a number of years as chief counsel to the Subcommittee on the Constitution, I know that that body has always welcomed the opportunity to build an historical record for even those amendments which we most strongly opposed. Let me assure you that after assessing the array of initiatives offered to modify the Framers' handiwork, one appreciates their work of two hundred years ago all the more.
Still, the fact that so many amendments on so many subjects have been introduced suggests that many members of Congress are seriously dissatisfied with the current state of constitutional law. This is cause for deep concern. As Justice Story recognized in his Commentaries on the Constitution, a government that is forever changing and changeable is one "bordering upon anarchy and confusion." Certainly, a great nation needs a system of law that is not entirely fixed and inalterable. But the modern proliferation of proposed constitutional amendments may be, I fear, symptomatic of deeper and more fundamental problems within our constitutional jurisprudence.
On reflection, it is probable that the growing array of proposals for constitutional change reflects less any general dissatisfaction with the Constitution than it reflects widespread dissatisfaction with the federal judiciary's treatment of constitutional law. Indeed, what distinguishes many of these amendment proposals is that they seek to re-establish the constitutional principles and values that their proponents believe have been undermined by some recent Court decisions. Unlike most earlier proposed amendments, then, which were essentially reformative in character, most recent amendments, at least from the perspective of their sponsors, have been essentially restorative.
My purpose is not to defend any of the amendments put forward in recent years; it is instead simply to suggest an explanation for this growth industry. To the extent the federal courts continue to embark upon what former Attorney General Levi has called a "social policy making role," disregarding in the process traditional notions of jurisprudence, I believe that the present surfeit of amendment efforts is likely to continue.
Social Issues and Judicial Activism
Perhaps the best area to begin with in illustrating the problem is the so-called trilogy of "social issues" abortion, school prayer, and school busing. Putting aside the controversial substance of these issues and I know that this is not easy to do what they have in common is that advocates of constitutional amendments addressing these issues believe themselves to be advocating nothing more than a restoration of longstanding, historic interpretations of the Constitution that have only recently been upset by the federal judiciary. It is not necessary to concur with this perception, I believe, to understand its basis.
With respect to abortion, for example, proponents of constitutional change point to the Supreme Court's seminal 1973 decision in Roe v. Wade. It is beyond dispute that Roe overturned, in one fell swoop, the laws on abortion then existing in every state of the union. As a result of this decision, a new regime was created a regime more permissive of abortion than had been reflected in the considered judgments of the elected representatives of the people in each of the fifty states.
The Supreme Court employed as the constitutional basis for its decision an alleged "right to privacy" broad enough to include a right to terminate pregnancy said to be contained in the due process clause of the Fourteenth Amendment. As former Solicitor General Archibald Cox, himself a proponent of legalized abortion, commented about this novel right, "Neither historian, layman, nor lawyer will be persuaded that the details of Roe v. Wade are part of the Constitution."
When the United States Senate, more than a decade after Roe v. Wade, split fifty-fifty on a proposed "state's rights" abortion constitutional amendment, most senators who expressed themselves in support of the measure claimed that they were voting to restore a lost status quo. They were not voting to change the Constitution, but to restore a changed Constitution.
A parallel is found in Congress's efforts to propose a school prayer amendment. Until 1962 and the Supreme Court's decisions in Engel v. Vitale and Abington v. Schemmp, expressions of devotion were a normal part of the daily regimen in the vast majority of public schools in this country. Such expressions were not considered to be in violation of the establishment clause of the First Amendment by the overwhelming number of parents and school districts throughout the nation.
Before these decisions, the First Amendment, at least in the view of proponents of a school prayer amendment, had been generally understood to prohibit the state from preferring any particular church or denomination over others. As the distinguished constitutional scholar, Edward Corwin, wrote more than three decades ago,
The historical record shows beyond question that the core idea of the "establishment of religion" comprises the idea of preference; [not any mere] act of public authority favorable to religion in general can be brought under the ban of that phrase without manifest falsification of history.
For most of the nation's history, this view of the establishment clause influenced the development of public policy and provided for the toleration and indeed encouragement of public school prayer. What emerged abruptly in Engel and Abington, however, was an understanding of the First Amendment sharply at variance with this notion. In place of a simple prohibition against the state displaying a preference for a particular faith or denomination, the Court endorsed the notion of an absolute and unbreachable "wall of separation" between church and state. All state encouragement of reverential expression was to be considered unconstitutional, no matter how neutral the manner in which it was expressed.
The effect of these Supreme Court school prayer decisions was to overturn the laws of more than forty states of the Union. In literally tens of thousands of jurisdictions across the country, longstanding policies of student prayer were transformed overnight from educational and character-building exercises into First Amendment violations.
As was the case with the abortion amendment, most of the fifty-six members of the United States Senate who supported President Reagan's proposed school prayer amendment in 1984 believed it was not the Constitution that they were modifying, but a series of aberrant Court decisions inconsistent with the permanent Constitution.
In the final element of the social issue trilogy school busing the same pattern emerges. Many, if not most, of those who support constitutional amendments in such areas as busing or civil rights policy or affirmative action believe that the courts have sharply redefined traditional conceptions of "equal protection of the laws." In the place of the colorblind notion of equal protection expressed in Justice Harlan's famous dissent in Plessy v. Ferguson as well as in Brown v. Board of Education and the Civil Rights Act of 1964, we have witnessed the rise over the past two decades of a radically different notion of equality: The focus on equality of opportunity has shifted to a focus on equality of results, while the idea of discrimination as a wrongfully motivated activity has been transformed into a concept of mere statistical disparity. We have witnessed the tolerance of racial decision making incorporated in Regents of University of California v. Bakke, the encouragement of reverse discrimination in the private sector in United Steelworkers v. Weber, and, perhaps most remarkably, the allowance in Fullilove v. Klutznick of federal grants to classes of individuals having nothing in common more than their pigmentation.
Again, those who propose to amend the Constitution in this area to restrict, for example, school busing for purposes of securing appropriate racial proportions are in their judgment reaffirming the traditional equal protection ideal eroded badly by these and other cases. There are other examples constitutional amendments on capital punishment designed to overturn the high court's line of cases stemming from Furman v. Georgia; amendments restricting the rights of illegal aliens designed to overturn Plyler v. Doe; amendments relating to the legislative veto designed to overturn I.N.S. v. Chadha; and amendments in the area of criminal procedure designed to overturn such decisions as Miranda v. Arizona and Mapp v. Ohio. Even constitutional amendments requiring a balanced federal budget may be seen as responding to court decisions that have eroded any serious limitations upon the spending and taxing power of the Congress. What seems to be clear is that those federal court decisions that some would characterize as exercises in "judicial activism" those decisions in which the court has involved itself in areas outside its traditional bounds, identifying a wealth of new "rights" and entitlements have generated an increasingly strong reaction by the Congress that often finds expression in the form of constitutional amendments. It is ironic that charges of illicit "tampering with the Constitution" have frequently been leveled against those who have sought to use the Constitution's own explicit amendment mechanism to respond to what they see as change achieved through extra-constitutional means.
Article V and the Amendment Process
In their wisdom (and in their humility, which for many national political leaders often amounts to much the same thing), the Framers of our Constitution recognized that the "fundamental law" articulated by that document must be susceptible to change in response to unanticipated circumstances. A defect of the Articles of Confederation had been their inflexibility and inability to respond to such changing conditions. Accordingly, because it was to embody the nation's supreme and permanent governing principles, it was necessary for the Constitution to contain a mechanism for self-correction. That authority for fundamental change was established in Article V, setting out procedures for constitutional amendment. James Madison summarized the need for Article V in The Federalist No. 43, observing:
That useful alterations [of the Constitution] will be suggested by experience could not but be foreseen. It was requisite, therefore, that a mode for introducing them should be provided. The mode preferred by the convention seems to be stamped with every mark of propriety. It guards equally against that extreme facility which would render the Constitution too mutable; and that extreme difficulty which might perpetuate its discovered faults. It moreover equally enables the general and the State governments to originate the amendment of errors as they might be pointed out by the experience on the one side or on the other.
The "mode" of amendment in Article V to which Madison refers provides, of course, for the ratification by three-fourths of the states of proposals committed to them either by the Congress, on a two-thirds vote, or by a convention called on the application of two-thirds of the states. It is a "mode" of amendment which has produced only twenty-six amendments in the history of the Republic, only sixteen having been ratified in the one hundred and ninety-five years since the Bill of Rights. It is also the sole mode of amendment permitted by the Constitution. As its provisions seem to make clear, it was the intent of the Framers that their intentions be followed unless changed in accordance with Article V.
Article V of the Constitution one of the document's great overlooked provisions contains in microcosm many of the Constitution's greatest animating principles. Perhaps most basically, the existence of Article V as the Constitution's exclusive amending mechanism reaffirms the Preamble's declaration that "We the people" are the ultimate source of governmental power: It was only with the people's consent that our present form of government was adopted, and it is only with their further consent, in the manner that they have set forth in Article V, that this form of government can be altered.
Other principles are also implicit in Article V. Its requirement, as a precondition for change, that there be super-majorities in the both the Congress and the states reflects the Founders' care in balancing majoritarian decision making with the need to protect the rights of minorities. The understanding that state ratification should not be conducted by popular referendum, but through the legislatures or state conventions, reflects the Founders' idea that the democratic will was most appropriately expressed through intermediary, representative institutions rather than in a direct manner. By allowing for either the national or state governments to propose amendments, Article V employs a system of checks and balances that also operates in other constitutional contexts to separate, oppose, and ultimately limit governmental power. Finally, by vesting ultimate control over the adoption of amendments in the state governments, Article V underscores the concepts of federalism and dispersed governmental power so fundamental to our system.
These principles separation of powers, checks and balances, majority rule with respect for the rights of minorities, republican government, federalism embody the core purposes of our Constitution. The genius of Article V, therefore, lies in its mandate that changes in the Constitution be brought about only in accordance with the principles that already underlie the Constitution. In this way, amendments may alter the Constitution, but they will be made in accordance with the root principles and values set forth in the original document.
The corollary of this proposition, however, is also true; to the extent that constitutional change is rendered in defiance of Article V, through unauthorized means, these broader constitutional values are likely to be undermined. As Elbridge Gerry observed at the founding convention, an attempt to amend the Constitution in "any other way" than through Article V represents a "high crime and misdemeanor" that should bring on appropriate consequences.
While the Framers carefully left open the application of Article V to virtually any substantive or procedural end, they seem to have anticipated that amendments, like the rest of the Constitution generally, would address governmental processes rather than substantive outcomes. A structure of limited and balanced government had already been devised, with sufficient flexibility in the popular, representative branches to respond to changing exigencies; presumably, therefore, most amendments would speak to the means by which this government would act rather than address specific results. In The Federalist No. 85, Alexander Hamilton announced his "thorough conviction" that any amendments likely to be thought useful "will be applicable to the organization of the government, not to the mass of its powers."
This belief has been largely vindicated by history at least until recently. Since the Bill of Rights which can largely be viewed as part of the original text amendments have primarily adjusted the machinery of constitutional government the Eleventh Amendment fine-tuning federalism; the Twelfth and Seventeenth Amendments altering the procedures of elections; the Twentieth, Twenty-second, and Twenty-fifth Amendments fleshing out the details of representative government; and the Fourteenth, Fifteenth, Nineteenth, Twenty-third, Twenty-fourth, and Twenty-sixth Amendments working to broaden the franchise.
Contemporary experience, however, has been very different. Recent years have witnessed a massive increase in the sheer number of constitutional proposals. More significantly these proposals, by and large, have been very different from those accorded real consideration in the past.
Most of the serious amendment proposals advanced of late have had substantive content, aimed at altering specific federal policy outcomes with regard to abortion, prayer, busing, or a balanced budget, for example. Only the Eighteenth Amendment, ushering in Prohibition, and the Twenty-first Amendment, ushering it out, can be compared with the newly emergent spawn of single-issue amendments. (Even the so-called "Reconstruction amendments" were directed generally towards expanding and guaranteeing pre-existing rights to previously excluded persons.) What is unique is that this new breed of amendment is not designed (as the Framers primarily envisioned) to adjust "errors" in the Constitution or to perfect the mechanisms of democracy, that is, to reform the Constitution; rather, these proposals are intended to restore a Constitution modified by means other than Article V.
This novel use of a provision, Article V, generally employed for procedural reform, to effect substantive change in constitutional doctrine, may be seen as a gauge that something has gone awry. The proponents of recent amendments believe that the Constitution has been modified by the federal judiciary, principally the Supreme Court, sitting as a kind of continuing constitutional convention a mode of modification clearly not within Article V, and therefore not sanctioned by the Constitution. Many believe the courts have imported into our permanent law notions of government outside the purview of the Framers, but which have been justified by modern judges as changes designed to enable the Constitution to respond to evolving circumstances and maturing needs. As Justice Brennan has opined, "Judges cannot turn a blind eye to social progress."
He and his colleagues, however, have forgotten the wisdom of President George Washington, who admonished in his Farewell Address that:
If in the opinion of the People, the distribution or modification of the Constitutional powers be in any particular wrong, let it be corrected by an amendment in the way in which the Constitution designates. But, let there be no change by usurpation; for though this, in one instance, may be the instrument of good, it is the customary weapon by which free governments are destroyed.
"Change by Usurpation"
Disregard for the appropriate avenue of constitutional amendment what Washington called "change by usurpation" undermines free government because it disregards those fundamental values rooted in the Constitution and reflected within Article V. When federal courts render purportedly "constitutional" decisions not clearly rooted in the constitutional text, it does grievous harm to these fundamental values in at least three important respects.
First, it violates the principle of federalism. To treat an issue abortion, for example as being of constitutional dimension is automatically to impose a national, uniform, inflexible, and presumably permanent policy mandate. Matters that, when treated at the local or state level, can be addressed in a variety of ways depending upon the diversity of local or state experience are, when nationalized by non-Article V, court-crafted constitutional amendments, reduced to a single, rigid rule. What is worse is that such judicially "constitutionalized" issues tend to be those that are the most divisive and emotional and complex. Such issues are precisely those least susceptible to a single, national solution and most in need of experimentation, trial-and-error, and flexible governmental response. Further, once an issue has been "constitutionalized" in this way, those dissatisfied with the Court's resolution are encouraged to constitutionalize and nationalize their own preferred policies through constitutional amendments. Thus, we see perpetuated the treadmill of debate over differing visions of uniform, national public policies.
The second way constitutional "amendments from the judgment seat," in Bentham's terms, upset fundamental constitutional values is through their impact upon the notion of separated powers. Judicial "constitutionalization" of issues not only permanently removes issues from the state to the national level, but once on federal ground transplants them from the legislative to the judicial field. Again, the pragmatic consequences are undesirable. Untempered by the give-and-take and bargaining, negotiation, and compromise inherent in day-to-day legislative process, these issues tend to be resolved through black-and-white solutions, without the occasional shading of reality. Again, these involve difficult public policy issues, those most in need of legislative accommodation and least amenable to absolute, end-of-the-spectrum solutions.
Finally, the tendency toward the "constitutionalization" of public policy issues by the courts can only have the effect of undermining genuine rule by "We the people," imposing as it does rules dictated from above by unelected and largely unaccountable members of the judiciary. These particular "rascals," alone among public officials, are immune to being "thrown out" by a disgruntled citizenry. It is a contemporary fact of life that the Supreme Court, on any given Monday in May or June, routinely issues more pronouncements on important public policies than Congress does in the course of an entire session. It is to belabor the obvious to note that the policies articulated by the court, unlike those of the Congress, bear absolutely no semblance of being the product of a representative or democratic process.
Even where the judicial solution in a given area might be said by some omniscient seer to be "wiser" than what popular officials might have produced (and it is not at all clear that this is generally the case), such decision making entails costs. It engenders frustration and resentment among the "losers" those whose policy prescriptions have not been adopted by the judges. Further, it breeds a sense of alienation much deeper than that caused by rejection by a legislative majority. When a court bypasses Article V and usurps power that the people in their Constitution properly left with themselves and their elected representatives, it repudiates the notion that, in the words of Hamilton, the "power of the people is superior to" each of the powers of the separate branches of the government.
This alienation, this frustration, has been compounded in recent years because roughly the same group of people is disenfranchised time after time. For want of a better term, we may speak of this class of victims as being often from the middle and the lower middle class, possessing traditional values and without access to public-opinion molding institutions. Their only political power is at the ballot box. They are those for whom the media, by and large, does not speak, and who are without elite legal advocates or spokesmen. They are something distinct from the articulate and involved "new class." They are quite understandably those most frustrated when their one source of public influence is repeatedly wrested from them.
The alienation of these "losers" has increasingly manifested itself not only in constitutional amendments but in resort to a variety of extraordinary efforts for overcoming unpopular constitutional decisions involving means other than the normal amendment route. In an effort to bypass the time-consuming and burdensome Article V process it is properly hard to amend the Constitution we have witnessed a growing number of attempts by members of Congress to rely upon constitutional shortcuts.
These shortcuts have taken different forms. Some members have sought, for example, to reverse Supreme Court establishment clause decisions by simply stripping the Court of jurisdiction over this issue under the controversial authority of the provisions of Article III. Others have sought to reverse the decisions on abortion by the simple tack of ignoring them and enacting into law plainly contradictory legislation. Still others have attempted to overturn Court decisions on the meaning of the Fourteenth and Fifteenth Amendments by simply relying upon the enforcement clauses of these amendments as grants of authority to redefine their provisions as well. Recently, under this extremely dangerous theory showing that conservatives are not the only ones frustrated with the courts one legislator recently introduced a resolution to read the Equal Rights Amendment into the law through a simple statute.
In addition, we are experiencing a new effort to use the long dormant constitutional convention process for proposing amendments. As you may know, this alternative amendment process has never been used successfully to secure the ratification of an amendment. There are at present, however, twenty states calling for a constitutional amending convention on the subject of abortion, and a remarkable thirty-two states were calling, until lately, for just such a convention for the purposes of proposing a balanced budget constitutional amendment. Only two additional states were needed to trigger the first amending convention in the history of the republic.
It is ironic, by the way, that those individuals most fearful of a constitutional amending convention called into being by the states and most supportive of placing obstacles in its way a procedure explicitly set forth in Article V are also those most generally enthusiastic about the need for the courts to interpret the Constitution "creatively" and "innovatively" and thereby effectively alter the Constitution through a procedure not set forth there, and quite at odds with the values implicit in Article V.
The Constitution as Fundamental Law
So long as the federal courts persist in their role of producing "legislation without representation," I anticipate that we are likely to see continuing evidence of strong congressional reaction. I am personally enthusiastic about some of this response I believe that the constitutional convention mode of amendment has the potential to reinvigorate the institution of federalism generally. About other elements of this response the growing variety of means of circumventing the processes of the Constitution I am concerned. My purpose here is not to justify or condemn any particular legislative response, but merely to explain them. If, however, blame is to be meted out, I choose to accord it not merely to those without the patience to pursue traditional Article V amendment procedures, but also to those on the bench, and to their allies in academia and elsewhere, who have created a judicial regime that routinely shortcuts proper means of constitutional revision. Can we reasonably expect that opponents of such wholesale constitutional revision from the bench will continue forever to tolerate such action without responding in kind?
Just as the Tenth Amendment is regarded as the constitutional embodiment of federalism and the First Amendment as the expression of values of free speech and association, Article V of the Constitution is the definitive articulation of the idea that the Constitution is not "written on water"; that its meaning is not to evolve and "mature" over time that judges are not to do "justice," but are to do "justice under law"; that it matters what the Founders intended their work to mean. Article V of the Constitution is the ultimate expression that the Constitution is not a "mere parchment barrier," but that its guarantees and principles are permanent and unchanging in the absence of formal constitutional amendment. It mandates that constitutional intent, unless altered through Article V's exacting process, shall remain the original intent.
Justice Brennan has said that "judicial power resides in the authority to give meaning to the Constitution." It seems to me, however, that the very existence of Article V's exclusive amendment mode demonstrates beyond doubt that our fundamental law was designed to establish certain principles not necessarily dependent on the personal predictions of any platonic guardians, be they British royalty or federal judges. Those principles can constitutionally be altered only in accordance with the prescribed democratic forms.
In closing, I think it fitting to quote from Alexander Hamilton one final time: "A Constitution is, in fact, and must be regarded by the judges as, a fundamental law." (emphasis added). Those who applaud extra-constitutional alteration of the document ignore this central premise of the system of government that we have chosen to live by. The values that run so deeply through Article V the federalist structure designed to disperse power and localize conflict, the need to establish multiple checks on power through a written document; and, most importantly, the understanding that ultimate sovereignty resides with the people all are principles basic to the Constitution and interwoven throughout its text. The recent surge of efforts to invoke Article V's amendment procedures, I believe, evidences a strong sense that the values embodied in that article and in its surrounding clauses are badly in need of resuscitation.
Federalism in Principle and Practice
Charles E. Rice
The Constitution of the United States is the first instance in all history of the creation of a government possessing only limited powers. The Magna Carta, the Petition of Right, the English Bill of Rights, and all the other previous efforts to restrain government had merely imposed restrictions on the otherwise unlimited power of government. The Framers of the Constitution, however, created a new government that would possess only the powers delegated to it. To be sure, some implied powers were delegated and some of the delegated powers, such as the power to regulate interstate commerce, were subject to elastic interpretation. Nevertheless, the federalism ordained by the Constitution rested upon the essential principle that the federal government was given only the powers delegated and that all other governmental power was reserved to the states. This principle was embodied in the Constitution even before the adoption of the Tenth Amendment. Thus, Article I, Section 1, provides "All legislative powers herein granted ...." (emphasis added) The Tenth Amendment merely reaffirmed the principle, as if to say, "And we really mean it."
Various factors have contributed to the erosion of federalism in constitutional theory and practice. The changed character of the economy, the conferral on the federal government by the Sixteenth Amendment of an unlimited power to tax income, the direct election of senators provided by the Seventeenth Amendment, and the effect of four major wars in seven decades are among the most prominent. Here, however, I will focus on a little noticed but decisive reason for the shift in governmental power from the states to Washington in matters affecting basic aspects of local government and community life. Consider a few examples:
When a twelve-year-old girl was shot and killed not long ago in the cross-fire of a gang fight in Chicago's Cabrini-Green Housing project, why were the police unable to respond to the demands of residents and columnists that they search the project, seize all the illegal weapons and arrest their possessors?
When a small midwestern city finds that the newest addition to its downtown business district is a bar featuring totally nude dancing, why are the authorities unable to close the place down?
When a public school teacher responds to the unanimous request of the parents of her kindergarten class by allowing the children to recite the Romper Room grace "God is great, God is good, Let us thank Him for our food" before their cookies and milk, why is that teacher subject to injunction as a violator of the First Amendment to the Constitution?
Why are public high schools and colleges required to recognize a homosexual club on the same basis as they recognize other student organizations such as a stamp club or a history honorary society?
Why are unborn human beings killed each year in this country in numbers equivalent to the combined populations of Boston, Denver, and Seattle and the states are unable to do anything effective to prevent it?
Why is a public figure who is financially destroyed by a falsehood published by a newspaper unable to recover a dime unless he proves that the falsehood was published with actual malice?
These are questions about which many Americans are concerned. And the answer in each case is that the states and communities are prevented from doing anything because of the incorporation doctrine. This has nothing to do with corporations. It is, rather, an invention of the Supreme Court of the United States by which that Court, contrary to the intent to the Constitution, has succeeded in binding the states uniformly by every requirement of the first eight amendments of the Bill of Rights as those requirements are interpreted by the Supreme Court. These amendments were intended by the first Congress and by the states which approved them to protect the specified rights against invasion by the federal government. The state governments were not bound by those provisions. For protection of their rights against invasion by state governments, the people relied primarily upon state constitutions.
The Fourteenth Amendment and "New" Rights
The Fourteenth Amendment, adopted in 1868, provides that "No State shall ... abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." (emphasis added) In a line of decisions beginning more than six decades ago, the Supreme Court has held that virtually all of the protections of the first eight amendments of the Bill of Rights are included in the "liberty" protected by the Fourteenth Amendment due process clause and that therefore the states are as fully obliged to comply with them as is the federal government. In the view of the Court, "The Fourteenth Amendment has rendered the legislatures of the states as incompetent as Congress to enact" laws in violation of, for example, the clause of the First Amendment which provides, "Congress shall make no law respecting an establishment of religion."
The Court has interpreted the Bill of Rights so as to include also rights not specified therein; rights arising from its own interpretation which it has proceeded to apply against the states. For example, in 1965 the Supreme Court struck down as unconstitutional a Connecticut law prohibiting the use of contraceptives. But to accomplish this, the Court had to find a right of reproductive privacy in the Bill of Rights so as to hold that the due process clause of the Fourteenth Amendment forbids Connecticut to violate it. Less resourceful jurists might have said, as Justice Black did in dissent, that the Framers did not have reproductive privacy in mind when they proposed the Bill of Rights and that therefore the Connecticut law did not violate the Fourteenth Amendment. The majority of the Court, however, discovered such a right of privacy in the "penumbras formed by emanations from the Bill of Rights." This ruling was the precursor of Roe v. Wade in which the Supreme Court held that the unborn child is not a person for purposes of the Fourteenth Amendment and that this right of privacy prevents the states from prohibiting abortion. Even in the third trimester, the state cannot prohibit abortion in any case where it is sought for the physical or mental health of the mother. In view of the elasticity of mental health as a criterion, the rulings are thus a warrant for elective abortion at every stage of pregnancy, right up to the time of birth. As a result, every year we kill by legalized abortion more than 1.5 million babies. The point here is not to analyze the abortion issue itself. Rather, the purpose is to discuss the error involved in the Supreme Court's holding that the first eight amendments of the Bill of Rights are strictly applied against the states through the Fourteenth Amendment. This error affects areas as diverse as defamation, school prayer, search and seizure, self-incrimination, capital punishment, pornography, and homosexual activity.
The legislative history of the Fourteenth Amendment demonstrates that the application by the Supreme Court of the Bill of Rights to the states fits Justice Holmes's description, in another context, of "an unconstitutional assumption of powers by courts of the United States which no lapse of time or respectable array of opinion should make us hesitate to correct." In his definitive analysis of that legislative history, Charles Fairman exhaustively analyzes the "mountain of evidence" from the Congressional debates, the state ratifying proceedings and other original sources in support of his conclusion that the proponents and ratifiers of the Fourteenth Amendment did not intend to make the Bill of Rights applicable against the states. He contrasts this "mountain of evidence" with "the few stones and pebbles that made up the theory that the Fourteenth Amendment incorporated Amendments I to VIII."
Nor can it be soundly argued that the Fourteenth Amendment applied some, but not all, of the provisions of the first eight amendments against the states. This selective incorporation theory, as Louis Henkin wrote, "finds no support in the language of the amendment, or in the history of its adoption, and it is truly more difficult to justify than Justice Black's position that the Bill of Rights was wholly incorporated."
In this matter, the Supreme Court prefers its own fictional version to the actual meaning of the Constitution. A central feature of the Constitution is the division of powers between the federal and state governments. The Supreme Court's erroneous application of the Bill of Rights against the states has imposed an artificial uniformity which obliterates that division of powers in important areas. It is also counterproductive in that it frustrates that capacity for innovation and local diversity which is itself a significant safeguard of liberty.
The erroneous application of the Bill of Rights against the states is a major contribution to the congestion on the docket of the Supreme Court itself. Various proposed remedies for that congestion, such as higher standards for counsel and a new intermediate court of appeals, miss the point that an essential cause of the Supreme Court's overload is the Court's own misinterpretation of the Fourteenth Amendment's guarantee of due process of law; the Court interprets that guarantee so as to make every state and local subdivision uniformly subject to the prohibitions contained in the Bill of Rights, for example, in matters of speech, religious expression, admissibility of illegally seized evidence against a criminal defendant and the like. Since the Court mandates one uniform rule in these matters there must be one interpreter which is, of course, the Supreme Court itself. Hence the avalanche of appeals to the Court. The problem is compounded because the Court is wont to invent rights which are not in the Bill of Rights, for example, the right of reproductive privacy which the Court uses as a justification for legalized abortion. In short, the overload of cases is primarily due to the Court's own activism.
A Proper Interpretation of the Fourteenth Amendment
Respect for the intent of the Constitution requires that the Supreme Court abandon its erroneous doctrine that applies the Bill of Rights against the states. But a proper interpretation of the Fourteenth Amendment would not leave the states free from all federal restraint in the matter of individual rights. The Supreme Court has misconstrued the due process clause of the Fourteenth Amendment so as to bind the states strictly by the Supreme Court's interpretations of the Bill of Rights. But another clause of that amendment, the "privileges or immunities" clause, was intended to limit the powers of the states with respect to basic rights, including the rights to life, property, personal security and mobility. Unfortunately, the Supreme Court in the Slaughterhouse cases in 1873 interpreted the "privileges or immunities" clause so as to render it ineffectual. Under a proper interpretation of the "privileges or immunities" clause, federal courts would have a limited power to declare state laws unconstitutional on account of their denial of equality in the enjoyment of basic rights. This judicial power would be limited by the power of Congress to enforce the Fourteenth Amendment, a power explicitly conferred by Section 5 of that amendment. And a further check is provided by the power of Congress under Article III, Section 2, to limit the appellate jurisdiction of the Supreme Court as well as the jurisdiction of lower federal courts.
The "privileges or immunities" clause was intended to confirm the constitutionality of the Civil Rights Acts of 1866. The "fundamental' rights which the Framers were anxious to secure were those described by Blackstone personal security, freedom to move about and to own property; they had been picked up in the 'privileges and immunities' of Article IV, Section 2; the incidental rights necessary for that protection were 'enumerated' in the Civil Rights Act of 1866; that enumeration, according to the Framers, marked the bounds of the grant; and at length those rights were embodied in the 'privileges or immunities' of the Fourteenth Amendment." The "original design" of the Fourteenth Amendment
was to make the "privileges or immunities" clause the pivotal provision in order to shield the "fundamental rights" enumerated in the Civil Rights Act from the Black Codes. Intertwined with that enumeration was repeated emphasis on the enjoyment of the "same rights," and "equal benefit of all laws and proceedings for the security of person and property." ... In lawyer's parlance, the privileges or immunities clause conferred substantive rights which were to be secured through the medium of two adjective rights: the equal protection clause outlawed statutory, the due process clause judicial, discrimination with respect to those substantive rights.
The underlying concept of the privileges or immunities clause was equality of treatment with respect to basic rights. That clause provided a limited and sufficiently flexible restriction on state action which denied that equality. In the Slaughterhouse cases, however, the Supreme Court gave the privileges or immunities clause a restrictive interpretation by holding that it protected only a limited category of privileges of "a citizen of the United States." The privileges or immunities clause was thereby effectively nullified as a significant restraint on state action. Ultimately, of course, the Supreme Court provided that restraint in substantive as well as procedural matters through the due process clause and especially through the incorporation doctrine with which this essay is concerned.
The errors discussed here are fundamental. So are the consequences in terms of the erosion of federalism. And the remedy should likewise be fundamental. What is needed is a reversal of the incorporation doctrine and a reversal of the Slaughterhouse cases so as to restore the three clauses of the Fourteenth Amendment privileges or immunities, equal protection and due process to their proper functions. The amendment was serviceable as conceived by its Framers. And it can be made serviceable again whether through corrective action by Congress in the exercise of its Section 5 power to enforce the amendment by "appropriate legislation" or through the recovery by the Supreme Court of a sense of its own responsibility to interpret the Constitution rather than to amend it.
1. Abington School District v. Schempp, 374 U.S. U.S. 203,215 (1963).
2. Griswold v. Connecticut, 381 U.S. 479,484 (1965).
3. Roe v. Wade, 410 U.S. 113 (1973).
4. Black and White Taxicab Co. v. Brown & Yellow Taxicab Co., 276 U.S. 518,533 (1928); Justice Holmes dissenting.
5. Charles Fairman, "Does the Fourteenth Amendment Incorporate the Bill of Rights?" 5, Stanford Law Review, 134 (1949).
7. Louis Henkin, "Selective Incorporation in the Fourteenth Amendment," 73, Yale Law Journal, 74-77(1963); see also Raoul Berger, Death Penalties: The Supreme Courts' Obstacle Course (Harvard University Press, 1982), 15-16.
8. Raoul Berger, Government by Judiciary: The Transformation of the Fourteenth Amendment (Harvard University Press, 1977), 36.
9. Ibid., 208-9.
10. Slaughterhouse cases, 83 U.S. (16 Wall.) 36 (1872).
The Declaration of Independence and the
Equal Protection of the Laws
Glen E. Thurow
"No State shall... deny to any person within its jurisdiction the equal protection of the laws." These words of the Fourteenth Amendment to the Constitution have not only formed the basis of much modern jurisprudence, but they are a crucial passage in the current debate over how to interpret the Constitution. The equal protection clause is central to this debate for three reasons: First, it is taken as a prime example of those clauses in the Constitution which are sufficiently general or vague that it is difficult to determine their meaning from the text. What constitutes "equal protection of the laws" for the very different groups which make up America? Second, it is argued that it is equally or more difficult to determine its meaning by examining the legislative history of the Fourteenth Amendment. That history only reveals that the framers of the amendment were not very clear about the meaning of the words they endorsed. Consequently, as the dean of the Stanford Law School, John Hart Ely, has put it, "we are left with a provision whose general concern equality is clear enough but whose content beyond that cannot be derived from anything within its four corners or the known intentions of its framers."
But there is a third even more important reason why this clause is central to the debate over interpreting the Constitution. It seems to speak to the very heart of what we as a democratic nation stand for, and thus its interpretation is critical to our understanding of ourselves and what we are about. It not only addresses the relationship of one race to another under the law, but also seems to speak to other equally important relationships such as those between men and women and between poor and rich. Because the proper character of many of these relationships is a current issue in American politics, the equal protection clause is crucial in today's partisan politics. Because these relationships profoundly affect the character of our life as a nation, the meaning of the equal protection clause is vital to the character and success of our democratic experiment.
I wish to argue that the meaning of the equal protection clause, although general, is far from being vague. Its meaning is quite clear when it is understood in the context of the Constitution as a whole, and this meaning is confirmed by the intention of its Framers. Our current confusion arises because we attempt to give the Fourteenth Amendment an historicist reading, one which sees its original meaning as rooted in the historical circumstances of the time of its adoption and seeks its current meaning in present day opinions and desires. This historicist reading must give way to one that recognizes that, in writing a constitution, men knew that they were not merely legislating for their times but for future generations as well, and understood that the nature of a constitution requires that its clauses announce permanent arrangements and principles rather than the fleeting preoccupations of the moment.
The Meaning of Equal Protection
There are two distinct issues in interpreting the equal protection clause. One is, what does it mean? The other is, who is to enforce its requirements? The first question is the more fundamental one and it is that question I shall address in this paper. Although I shall not examine the answer to the second question, let me only say that I do not think it self-evident that the courts are the principal means by which the Fourteenth Amendment ought to be enforced.
There are some things about the meaning of the equal protection clause that are evident from its wording. First, it is a restriction upon state action, "No state shall ...." Second, it applies not only to citizens but to "any person" within the jurisdiction of a state. Third, what is prohibited is that a state may not deny any such person the "equal protection of the laws." This clearly means that the state may not extend the protection of the laws to some people while excluding others.
The difficult interpretive issue arises from the question of the degree to which the Fourteenth Amendment restricts the content of the laws which must apply to all. "Equal protection of the laws" may mean the laws must be enforced for everyone; but it may also mean that protection extended by the law must be equal for all. If it means the latter, we face the difficulty that common sense tells us that many distinctions made by the law in extending protections are quite reasonable while others appear unjust. It is reasonable to distinguish between old people and young people in determining who gets social security benefits; it is unjust to reserve residential areas for the white race only. What distinctions are permissible? In order to answer this question, let us first consider some principles that should guide any interpretation of the Constitution.
How to Interpret the Constitution
One cannot properly interpret the Constitution without remembering what a constitution is. As John Marshall put it, "... we must never forget, that it is a constitution we are expounding." A constitution differs from an ordinary law in that it is fundamental and is meant to last forever. It is, therefore, not addressed simply to the immediate situation of its establishment, but to the long future stretching before it. Should its Framers attempt to detail every conceivable circumstance that might arise it would, as Marshall said, "partake of the prolixity of a legal code, and could scarcely be embraced by the human mind." Furthermore, the problem is more than technical. Even if the Framers had had the resources of modern information storage they could not have detailed every circumstance because of their inability to foresee the future, including the vast technological advances with which we are so familiar. Consequently a well-written constitution is one which marks its "great outlines" and "important objects," which establishes the proper constitutional principles while leaving their application in particular circumstances to those whose duty it is to uphold the constitution in times to come.
It should also be recognized that those who wrote our Constitution were well aware of this characteristic. It is why our Constitution speaks of "commerce" instead of "shipping," why it grants Congress the power to "constitute tribunals inferior to the Supreme Court" rather than to specify the number and nature of the inferior courts. And, I think it can be shown that the authors of most of the amendments to the Constitution were similarly aware of the nature of a constitution.
One of the great errors of constitutional interpretation is to forget this characteristic of a constitution. In our time we are led to this neglect by a kind of historicism which reads our Constitution in the light of the particular circumstances and issues of the times in which it was written. It assumes that the Framers were not and could not be speaking in terms of general principles but that they must be reflecting only the parochial views of their times. This historicism has old and not very respectable roots in American constitutional interpretation. One of the earliest and most famous historicist misinterpretations concerned, not the Constitution, but the Declaration of Independence. Nearly a hundred and thirty years ago in the Dred Scott case, Chief Justice Taney denied that the Declaration's phrase, "all men are created equal," could possibly mean what it plainly said. Why? Because some of the Framers owned slaves. Hence the Declaration must mean "all white men are created equal." How many of us follow perfectly the principles we nevertheless believe? Taney denied that our principles can be better than our practice. He neglected the possibility, as Lincoln noted, that the authors of the Declaration meant to set up a "standard maxim for free societies" which though never perfectly attained certainly not in their own day could be a continuing goal for a free society.
How to Interpret the Equal Protection Clause
Because the events and circumstances of the passage of the Fourteenth Amendment are so vivid in our national memory and their consequences still so much with us today, there has been an overwhelming temptation to read the Fourteenth Amendment in the light of those circumstances. When the Supreme Court first had occasion to interpret the equal protection clause in the Slaughterhouse cases, it predicted, "We doubt very much whether any action of a state not directed by way of discrimination against the Negroes as a class, or on account of their race, will ever be held to come within the purview of this provision." It is so clear that the framers of the Fourteenth Amendment meant somehow to protect the rights of the newly freed slaves that even those who would give the clause a broad meaning today understand the original intention to protect the freedmen. It is for this reason that Ely, as I have already noted, says that the intentions of the framers of the Fourteenth Amendment can give us little guidance, for those framers seemed exclusively preoccupied with how the general words of the clause were to apply to one particular issue, that of the freedmen.
Indeed, in the debates in the House and Senate leading to the passage of the Fourteenth Amendment, the issue which did occupy everyone was that of how to protect the rights of the former slaves. The one occasion on which the discussion touched upon some other application of the clause was most unsatisfactory and unenlightening. In the House debate, Representative Robert Hale of New York, an opponent of the proposed amendment, claimed that the equal protection clause would mean that the states would no longer be free to distinguish between the rights of married women and those of single women or men, as all the states then did. Thaddeus Stevens replied that it would only require that the states treat all married women the same and all unmarried women the same, but it would not require the states to treat married and unmarried women the same. The answer was obviously inadequate and Hale rightly noted that by its reasoning the amendment would only require that all blacks be treated the same, not that they would have to be treated the same as whites. Hale then insisted upon continuing his speech and the issue was dropped. Obviously, there is little in this exchange which would guide one towards an answer to the question of whether the clause allows distinctions between men and women or married and unmarried persons. The supporter (and chief mover) of the amendment, Stevens, maintains that it would, but his reasoning is specious; and the opponent of the measure, Hale, says that it would not, but his statement is a mere assertion not endorsed by anyone else. The intentions of the framers seem a blind alley.
But suppose we look at the clause in a different way. Instead of being mesmerized by the issue of slavery, let us read it as part of the Constitution, assuming that its general language does indeed mean to state a general principle which ought to be read in the light of the Constitution as a whole. Then the debates over its adoption reveal that its framers, however much they were practically concerned with the issue of the freed slave, understood that they were writing a constitution meant to speak to other issues in other days and that they were establishing a general principle of American constitutional government.
In this light, three things are evident from the debate. First, that its supporters did not regard it as establishing a new principle for the Constitution. It is reiterated several times in the debate that the principle that all ought to be equally protected by the laws was not new, that it was indeed the "very foundation of a republican government." Second, it is evident that its supporters thought that what they were doing was not inventing a new principle, but extending its practical effect. They were giving power to Congress to make sure that no state would deny the equal protection of the laws to its citizens. Many indeed believed that even this was not a radical change, but was made necessary only because the Supreme Court had misunderstood the original federal principle in the Dred Scott case. Third, the framers of the clause understood its meaning as a fulfillment of the principle of the Declaration of Independence. As Thaddeus Stevens noted, all of the provisions of the first section of the Fourteenth Amendment were "asserted, in some form or other, in our Declaration or organic law." Even though the debaters were concerned immediately with the issue of the rights of the freed slaves, they clearly recognized that they were writing a constitution meant to endure beyond the immediate issue, that they were embodying in the Fourteenth Amendment a basic principle of republican government to be understood in the light of the Declaration of Independence.
The Principle of Equal Protection
In order to understand the principle of equal protection it is proper, therefore, to begin with the Declaration of Independence. It is well to remind ourselves of several features of the equality of men as it is proclaimed in the famous phrase, "all men are created equal." The equality proclaimed is not one made by laws or human decree, rather men are created equal they are by nature equal. What does it mean to say that they are by nature equal? It does not mean that they are equal in all respects. The Declaration does not deny that some are stronger than others, some more beautiful, some more intelligent. Rather, as the Declaration explains, it means that they are "endowed by their Creator with certain unalienable rights ...." This means that with respect to these rights, no man has the right to tell another what he must do. No one, in other words, is the governor or ruler of another with respect to these rights. Or, as Jefferson put it, "the mass of mankind has not been born with saddles on their backs, or a favored few booted and spurred, ready to ride them legitimately by the grace of God." By nature no man is the ruler of another. All have equal rights.
Yet, although all men possess equal rights, all government involves inequality, even in a democracy. For government involves some men telling others what they must do. The principle is not different if it is one man or a minority telling the majority what to do, or whether it is a majority telling the minority what it must do. In either case there is a relationship of inequality, of some governing and others being governed. The Declaration implies that although there is nothing in the differences which exist among human beings which would justify this inequality, this inequality is nevertheless necessary. It is necessary because without it our rights, our natural grant to govern ourselves, would be ineffective because we are incapable of defending our rights for ourselves. The insecurity of our rights makes government necessary. It is the purpose of government to secure these rights.
Government, which requires inequality, can only be justified by the consent of all. Because we are rightfully our own governors, we have the right to decide who among us will be given the right to make those common laws which we need in order to secure our rights. Government derives its just powers from the consent of the governed.
This basic principle leads to two corollaries, the first being that consent is not given once and for all, but can be withdrawn. Hence there is a right of revolution, even when a people have consented to a particular government (as the Americans did to British rule prior to 1776). It is but a short step from this to the realization that a continuing measure of consent, by free elections for example, is an appropriate way to both ensure continuing consent and make the government one likely to gain consent.
The second corollary points us toward the rule of law. Precisely because our rights are insecure, it is not sufficient that we give our consent to government. A just government must also be a government which will take as its aim the protection of our rights and one which we can be reasonably confident will restrict itself to that aim. Hence the Declaration leads to the rule of law in which no one can be restricted except in the manner prescribed by the advanced notice of the law, and in which the law applies equally to all, the governors as well as the governed. These principles make it more difficult for the power of the government to be directed unjustly against some individual or group, or to be designed to favor the ruling group or individual.
The requirement that all men be equally protected by the laws thus reflects the natural equality of all men. It is because men are created equal that they ought to be equally protected by the laws. What distinctions, then, may be made in the law compatible with equal protection? In principle we can say this: All men must be protected in their unalienable rights to life, liberty, and the pursuit of happiness because all are equal in the possession of these rights. However, in those matters in which men are not naturally equal, the law may legitimately make distinctions. It may send smart people to college and prohibit entrance to less talented ones. Classifications that are founded upon relevant natural distinctions are consistent with equal protection; those that extend different protections to groups defined by merely historical or accidental distinctions are contrary to the principle of equal protection.
Affirmative Action and the New Inequality
The greatest dispute over the meaning of the equal protection clause today is that concerning affirmative action. By affirmative action I mean not any aid to minorities but the position which says that members of certain groups, as a matter of justice, are entitled to privileges under the law denied to others because of the injustice done to that group in the past.
Some claim that the equal protection clause requires affirmative action. To be equally protected by the laws according to this reasoning means that there must be a remedy in the laws for the injury done to a group, and that remedy can only be some compensatory benefit at the expense of the group or groups responsible for the injury. On the other hand, others claim the opposite, that the clause forbids affirmative action because people are treated unequally in affirmative action. A person who has never been injured may receive a benefit simply because of the group to which he belongs; while one who has never committed any injury may be denied a benefit solely because of his group.
Racial distinctions in American law are properly treated as inherently suspect. The standard developed by the Court, that in making such a classification one must show that there is some great societal good to be accomplished and that there is no way of accomplishing it other than a racial classification, seems to be the very standard of Nature itself. The reason, however, is not the one the Court has sometimes used, that classifications cast a stigma upon a particular race. That view leads to the conclusion that laws discriminating against whites are constitutional because people will not take the discrimination as a sign of inferiority of the white race. No stigma, no denial of equal protection. Rather, the reason such classifications are suspect is because there is no natural distinction among the races which justifies them. Discrimination against whites is just as bad in principle as discrimination against blacks. The first Justice Harlan perceived this when he argued in his dissent in the Plessy case that the legally required railway car segregation of Louisiana was contrary to the "personal liberty of citizens."
In one sense, affirmative action is clearly a policy of inequality some people will be given rights denied to others solely because of the group into which they were born, just as in bygone years those born into the aristocracy were given privileges in the law denied to the common people. Yet affirmative action is defended in the name of equality, not inequality. The advantages some groups will get today is justified by the disadvantages they suffered yesterday. These advantages will be at the expense of groups which have had more than their share of advantages, and thus all will be made equal. The end of the new inequality is equality so conceived. Equality is restored through the notion of compensatory justice.
This notion of compensatory justice for groups rests upon the historicism I mentioned earlier. One's identity under the law is determined by the group to which one belongs, and that group is defined by historical circumstances. Blacks are the beneficiaries of affirmative action not because they are black nor even because they are victims of discrimination today, but because they are a group which has been victimized in the past. Their present status in the law is to be determined not by their present condition but by their past condition. The newborn black infant is not equal in the law of affirmative action to the newborn white infant not because of a difference in their nature, but because of a difference in the history of the groups into which they are born. It does not matter whether a particular individual has discriminated against anyone else or whether he has been the victim of discrimination. The past overrules the present.
The view of equality which underlies this policy is one which rejects nature as a standard for political action. The traditional American notion of equality under law means that all have a right to consent to the law and all have a right to be judged under the law in accordance with whether or not one has violated the law. And all must have their rights equally protected. Affirmative action rejects all of these premises. Instead it replaces them with the notion that the object of law is not to protect our rights but to ensure our equality. That equality is determined by sameness rather than by looking to what our nature entitles us. It is a view of equality that in principle destroys liberty.
I can illustrate this point by referring to one of today's leading constitutional law authorities, Professor Laurence Tribe of Harvard. Professor Tribe entitled a recent book Constitutional Choices. He wishes to emphasize by this title that we have a wide latitude to make whatever choices we think appropriate about the Constitution there is no one set of principles or one standard of interpretation to which we may repair. We are constrained neither by the words of the Constitution nor by the nature of man. The consequence is that we can give a new meaning to equality and the equal protection of the laws.
But when the standards of our nature are rejected, the meaning of equality no longer hinges on a recognition of the character of human nature and the differences which exist among men. Nature itself may be judged by another standard. When found wanting, she may be captured and changed. The true meaning of equality then becomes not the protection of the rights of all (and thus the protection of their differences), but the remolding of each in the image of others. According to Professor Tribe, for example, the law should not take account of differences between the sexes except to ensure that these differences do not result in different ways of life. If the consequence of sexual intercourse is motherhood for women, but not motherhood for men, then it is the duty of the law to see that such need not be the consequence for either sex. Equality requires that women not be faced with any consequences of their actions not also faced by men. That this understanding of equality destroys liberty can be seen if the reasoning is transferred to the realm of speech. If the consequence of speaking is ridicule for one man with a squeaky voice and glory for another with a deep one, then the law must ensure that these different consequences do not result presumably, in this case, by forbidding the good speaker to speak.
It is proper to understand justice in the case of individuals in terms of compensation for past wrongs. If an individual has been injured, it is just that he be compensated to the fairest extent possible. If a black has been unjustly discriminated against by a white, it is proper for the white to be made to compensate him for his injury. However, a just relationship among groups in society cannot be understood in the same way. The same principle of justice applied to groups leaves the result that some who have received no injury will receive compensation and some who have done no injury will be made to pay. Injustice, therefore, cannot be wiped out by such a policy but only be perpetuated in a new guise. In looking at the relationship among groups in society we should rather look to what our common good requires.
The common good under affirmative action appears only in the view that every group ought to be equal to every other. This does not, in fact, establish a common good, but is instead a notion of something like sovereign statehood for individual groups. Different groups are held together, not as parts of one country, but for the sake of getting what they can from other groups. To cut the pie among groups in some particular way may keep the peace, but it does not create a common good.
The change which has occurred in our politics with the change in the understanding of equality can be seen in the difference between Martin Luther King and Jesse Jackson. Martin Luther King spoke in the name of the Declaration's understanding of equality, calling upon all Americans to live up to their belief that everyone is entitled to equal rights. As a consequence, he could form a political movement of whites as well as blacks, and many whites, not part of the movement themselves, could nevertheless be moved by it. Jesse Jackson, on the other hand, has sought to form a "Rainbow Coalition." Of course, there is no white in the rainbow. Jackson, unlike King, has not called upon both whites and blacks to live up to the best that is in them. Rather, he has appealed to the poor, including whites, to recognize that they are in reality colored. Every group which is in some way disadvantaged is to unite together in order to demand what is rightfully theirs from the rest. Farmers, blacks, old people, the poor, would all be part of one political movement, not because they share a view of the common good but because they desire more from the government and the dominant whites. Where is the common good? The Republicans made an effective charge against the Democrats in the last election that they were nothing but a collection of interests. But the view of equality inherent in affirmative action leaves no common good beyond a collection of interests.
What does the equal protection clause say about other kinds of classifications in the law? The traditional standard of the court has been that if the government has a legitimate aim and if the classification is related to that aim, then the classification is legitimate, provided that it involves neither a suspect classification nor a fundamental right. A wide discretion is given to the legislature to select the means it considers most appropriate to gaining its legitimate end. In recent years, however, this neat division has broken down. Are there other distinctions like the racial ones that should be held to a more exacting standard? The distinction most often mentioned is that made on the basis of sex.
Distinctions based on gender are significantly different from those on the basis of race. This is not only because the alleged oppression of women by men is of an entirely different order than the oppression of blacks by whites, but is also because the distinction between the sexes is not a distinction like that of race which can in principle be ignored. Perform this experiment. Imagine a society in which people were color- or racial-blind so that they could not know which person belonged to which race. There would be no barriers whatever to establishing a perfectly good society among such people. Try the same experiment with sex. Suppose people were sex-blind, so that they could not tell who was male and who female. Here is prime material for a satirist. One simply could not properly perform the most basic tasks of society, beginning with the regeneration of the human population. All of the institutions based upon a recognition of this distinction, such as the family, would be impossible. The distinction between male and female is not simply irrelevant in the way that the distinction between races is in principle irrelevant, in the formation of a good society.
What the proper relationship is between male and female is no easy thing to define; nor is it easy to say what relationship between them is most compatible with republican government. The liberation of women in recent years has certainly achieved many obvious and significant benefits. Yet it cannot be denied that it has also spawned problems that we have yet to adequately face, problems at least partially recognized within the women's movement itself. In making the honor given both men and women turn on their success in the market place, do we not see a significant increase in unedifying, indeed degrading, materialism? Does it not also lead to increased neglect of the children who will be the republican citizens of tomorrow? Will those children have the qualities of mind and character republics require of their citizens? Whatever the particular conclusion reached, the principle of justice involved in making distinctions of gender in the law is clear. The extent that distinctions of rights under the law based upon sex are appropriate recognitions of natural differences between the sexes is the same extent that distinctions are constitutional. To the extent that the distinctions do not reflect such natural differences, they are contrary to the equal protection of the laws. What those differences may be are proper matters for our common deliberation and for the decision of our legislative bodies.
In looking at the equal protection clause of the Fourteenth Amendment, then, we must keep in mind that it is a constitution we are interpreting. A constitution must be read with the presumption that it has been designed to state general principles in order that it might last forever. We must also remember that our Constitution requires us to study our nature in order to know how we are to apply standards that are rooted in and derived from that nature.
1. John Hart Ely, Democracy and Distrust: A Theory of Judicial Review (Harvard University Press, 1980), 31.
2. McCulloch v. Maryland 4 Wheaton 316 (1819).
3. Dred Scott v. Sandford 19 How. 393 (1857).
4. Alfred Avins, ed., The Reconstruction Amendments Debates (Virginia Commission on Constitutional Government, 1967), 154.
5. Ibid., 217.
6. Ibid., 212.
8. Andrew A. Lipscomb, ed., The Writings of Thomas Jefferson, XVI (Thomas Jefferson Memorial Association, 1903), XVI, 182.
9. Plessy v. Ferguson, 163 U.S. 537 (1896).
10. Laurence H. Tribe, Constitutional Choices (Harvard University Press, 1985), 238-45.
The Layman's Perspective on the
When I was putting together some ideas for this presentation on the Constitution, I asked a recent college graduate, a young professional, about the topic. Her immediate answer was "I don't know anything about it." That may well be a true reflection of the layman's perspective on one of the most important features of democracy.
Ironically, there is also a corresponding lack of knowledge about the layman's perspective itself. I thought that it would be relatively easy to find a few articles, check some poll data; in short, get a feel for public opinion, but no such information in any up dated form exists. One researcher at a very prestigious survey firm said, "Quite frankly, there is nobody to hire us to do that because nobody cares." This is unfortunate because the Constitution is clearly written as a governing document and it is written for ordinary people. The wording of the Constitution is quite plain. Its authors did not use high-sounding phrases or technical terms. Thomas Jefferson once described the Constitution as a text of civil instruction, but it appears that we have sadly neglected it.
We can ask three questions: How well do most people understand the Constitution? How are they educated about the Constitution? And how important is it that they be educated or knowledgeable about the Constitution?
The most recent surveys which we may look to were taken in 1944 and 1946. One of these asked:
What do you know of the Bill of Rights?
Never heard of it./I'm not sure I have 31%
Had heard of it, but could not identify 36%
Confused, unsatisfactory or incorrect 12%
That leaves 21 percent of our citizenry who had a reasonably accurate idea of the content. It may be significant that the particular survey firm which used the question, the National Opinion Research Center, has not employed it on any of their subsequent surveys. Perhaps they were discouraged by the results.
There is a general belief in some quarters that the Bill of Rights could not be passed today in any popular referendum. This opinion gained great currency over ten years ago during an event called the People's Bicentennial. (That was the bicentennial of the Declaration of Independence, not the Constitution, of course.) One group of radicals wanted to protest the national celebration of our two hundredth anniversary. Its members frequented supermarkets and parking lots, asking questions such as "Do you think people who want to violently overthrow the government of the United States should be able to say anything they want at any time?" Well, you try accosting someone coming out of the supermarket with that question. Every time, the answer was "No." The radicals chalked that up as opposition to the First Amendment and, by inference, to the entire Bill of Rights.
Many newspapers picked the story up, circulated it, and it persists today. But it is a myth. It is not that the people wouldn't approve of the Bill of Rights; they probably don't know enough about it one way or the other to cast an intelligent vote.
Let us return to the polling data for a moment. In another survey conducted in the 1940s the question was asked: Which represents your opinion: Our form of government, based on the Constitution, is as near perfect as can be and no important changes should be made. About two-thirds of the people, 67 percent, agreed with that. Or: The Constitution has served well but should be thoroughly revised to fit present-day needs. About 20 percent agreed with that. (Please be aware that throughout this essay, I have paraphrased the questions slightly, but without distorting the meaning or the implication of the results.)
A Historical Perspective
How else are we to get a feel for the layman's perspective? We must use collateral means, beginning with some general speculation about our past. During the 1780s, debate about the formulation and ratification of the Constitution was not limited to the floor of the Constitutional Convention. In every state, the provisions were passionately discussed. It is safe to say that people knew more about the Constitution at that point in our history than at any other time. And, of course, the disagreements among the nation's leaders and the convention delegates mirrored disagreements in the broad American community as well. Thomas Jefferson, who was in France at the time, objected to the Constitution's drafting because it did not have a Bill of Rights. Thomas Paine, also in France, objected because he was against a presidency. He was also concerned about the duration of the Senate terms.
But both of them went along with the proposed document, interestingly enough, because they were encouraged by the prospect of amending it. Like many others, they thought they could iron out the imperfections later. They felt the need to have something to replace the Articles of Confederation as soon as possible. Paine phrased it this way: "Thirteen staves and nary a hoop will not a barrel make." And they pointed out that they would have voted for worse documents just to get something down on paper.
There were, however, deep misgivings about the Constitution. Gouverneur Morris from New York warned, "Give the votes to the people who have no property and they will sell them to the rich who will be able to buy them." Exactly the opposite point of view was expressed by a Massachusetts countryman, Amos Singletary, who said, "These lawyers and men of learning and moneyed men that speak so finely and gloss over matters so smoothly to make us poor illiterate people swallow down the pill expect to get in Congress themselves. They expect to be the managers of this Constitution and get all the power and all the money into their own hands, and then they will swallow up all us little folks, like the great Leviathan." In the end, significantly, the strongest support for the Constitution came from the artisans. Half to two-thirds of the adult males in the cities were tradesmen. They correctly perceived that the Constitution was not only a document of government, but also a document of commerce. At the time, the British were dumping goods in America, commerce was stagnating, the economy was crippled, and there were numerous demands for tariff protection. These artisans saw the benefit of speedily adopting the new Constitution.
To put the public discourse on political affairs into context, one must remember that in the 1780s few printed discussions of issues were circulated. Paine's famous Common Sense pamphlet reached only a few hundred thousand people and this was considered an extraordinary accomplishment. Ordinarily, newspapers might reach 5,000 people; pamphlets, 2,000. Mass communication was very limited. But Professor Alfred Young of the University of Northern Illinois has made the observation that by studying accounts of public celebrations we may gauge public interest on many issues.
In celebrating the ratification of the Constitution in 1788, people turned out in unprecedented numbers for parades. In Boston more than 4,000 marchers participated. In New York, 5,000; in Philadelphia, over 5,000; and the artisans were once again in the majority. They marched alphabetically or by trade. They each had floats and they had slogans that went along with them. One group of bakers had a huge "Federal Loaf of Bread." The coopers had a float that depicted 13 staves on a barrel, a fulfillment of Paine's earlier metaphor. Blacksmiths and nailers used the slogan "While Industry Prevails, We Need No Foreign Nails." Chair-makers, who were naturally more interested in exports, responded with the "The Federal States and Union-Bound O'er All The World Our Chairs are Found." The shipbuilders added, "The Federal Ship Will Our Commerce Revive, and Merchants and Shipwrights and Joiners Shall Thrive." The tallow chandlers boasted "The Stars of America A Light to the World."
After the ratification era, the poetry lapsed and so did our knowledge of the public's view of the Constitution. There were periods, of course, when people would get agitated about a particular issue such as slavery, and when amendments were proposed, people naturally discussed them. But beyond these generalizations, public awareness of the Constitution is a phenomenon we know little about.
In the absence of direct methodology Professor Michael Kammen of Cornell University relies on another interesting technique the study of language and rhetoric to assess what the Constitution meant to past generations. Grand descriptions of the Constitution are not formulated by farmers in the fields or men in the street; they are produced by intellectual and political leaders, but in the absence of anything else, they may shed some light on the common view since they were likely to exert some degree of influence on it. In 1774 Thomas Jefferson referred to the yet unwritten document as "the great machine of government." John Quincy Adams used the same image in 1839, and James Russell Lowell revived it in 1888. Throughout the nineteenth century the Constitution was still depicted as a machine, a mechanical device. Over time, however, the image evolved into an organic or living document those were Holmes's words in 1914. Cardoza said in 1925, "The Constitution has an organic life." And Frankfurter commented as late as 1951, "The Constitution is an organism." During his presidential campaign, Woodrow Wilson put it this way:
The makers of our Federal Constitution constructed a government as they would have constructed an orrery* to display the laws of nature. Politics in their thought was a variety of mechanics. The Constitution was founded on the law of gravitation. The government was to exist and move by virtue of the efficacy of checks and balances.
The trouble with the theory is that government is not a machine, but a living thing. It falls not into the theory of the universe, but under the theory of organic life. It is accountable to Darwin, not to Newton.
* An orrery is an apparatus invented in 1731 showing the relative positions of heavenly bodies in the solar system by using balls moved by wheelwork.
Now there is some significance in this statement. The original construction of the language, of course, predates Darwin. Since the theory of evolution was not known in the 1780s, it is logical that in the eighteenth century men would use the scientific terminology of the day, born of the Industrial Revolution, machinery, and growth. Darwin, in the succeeding century, inspired the use of the biological terms (My suspicion is that even today judges and politicians probably find themselves more comfortable justifying departures from constitutional interpretation when they feel they are advancing a life form, rather than tampering with a machine.)
Still, it is doubtful that the lay public on the farms or in the cities in either century actively debated as to whether the Constitution should be described as a machine or an organism. Their civic education came, as it does now, primarily from textbooks and school. That education may be superficial and even inaccurate. One text published in 1900 presented John Adams and Thomas Jefferson actively involved in the 1787 convention when they happened to be serving as our ministers to Britain and France, respectively, at the time. Admittedly, the Constitution can be a very dry and complicated subject. And the meaning and the intention behind many passages are disputed even by informed and articulate leaders. These disputes often are as old as the Constitution itself. One can hardly expect the public to be fully informed about "loose v. strict construction," "judicial review," "flexible versus unchanging interpretations" and so on.
The Supreme Court, with more recognized authority on the Constitution than any other body, has, historically, chosen not to educate the public. The justices keep their distance from the people almost allowing their roles to be shrouded in mystery. Even the procedures and the internal workings of the Court are not well publicized. The media has also failed to educate the public about such basic features of our government. There is precious little broadcast or written about the Constitution. And I would venture to say from my own experience in the field that most journalists don't know any more about the Constitution than the lay public.
Public Opinion and the Constitution
Another way of assessing the public's attitude about the Constitution is to ask questions about issues which have constitutional ramifications. Do you believe in free speech? Ninety-five percent of the Americans polled answered "yes" to this question on a recent survey. In 1982 the question was reworded to state: I believe in free speech no matter what views are being expressed. With that slight change of wording, approval dropped to 85 percent. Then the survey asked: Would you allow someone to make a speech against churches and religions in your community? Thirty-four percent answered that question "no," even though the questions were asked back-to-back. Would you allow someone who has views against churches and religion to teach? Fifty-one percent answered "no." Should an admitted communist be allowed to make a speech in your community? Forty-one percent said "no." Should somebody who wants to do away with elections and let the military run the country be allowed to make a speech? Forty-two percent said they would not allow him to make a speech. Should such a person be allowed to teach? Fifty-six percent would not allow him to teach. Should a homosexual be allowed to make a speech in the community? Thirty-one percent of the respondents said "no," and 41 percent said they would not allow him to teach. All these answers are from people who are self-avowed firm believers in freedom of speech.
There was another study done in 1975 which asked, Do you think the United States should allow speeches against democracy? Forty-two percent of the people said "no." Well, clearly at least one-third of the population cannot be accused of being confined by consistency! More likely, however, it is probably evidence of a belief in both the values of religion and free speech. When you ask about them independently, you get strong favorable opinions for both. But when you put them in contest and challenge one to the other, you force people to make a value judgment and some of them will choose to protect religion over freedom of speech and vice versa.
People believe just as strongly in the freedom of the press and still offer contradictory opinions. In a 1985 survey, 17 percent of the people polled said that the media should be regulated by government. In 1957, 39 percent of the people said socialists should not be allowed to publish newspapers. In 1963, people were asked: Do you think that members of the Communist Party should be allowed to speak on radio? Sixty-seven percent of the people polled answered "no." And in 1953: Do you agree newspapers should not be allowed to criticize our form of government? Forty-two percent of the people agreed that newspapers should not be allowed to criticize our form of government. The layman's view of the First Amendment is multifaceted, to put it charitably. The flip side of this, by the way, is that civil liberties never seem to arouse much concern among the populace. Surveys frequently ask What is the most worrisome problem facing the nation, facing you, and facing your community? Never more than one or two percent of the respondents will identify anything having to do with civil liberties. These freedoms are taken for granted and are generally accepted with whatever restrictions accompany them in every era, whether it is during a world war, a cold war, or the present.
There are, however, issues which will rouse public indignation. Recently 81 percent of the populace disagreed with the Supreme Court on the school prayer decision. In 1967, only 47 percent agreed with the statement that the Court was impartial. That shows a fair amount of disenchantment with the Supreme Court of the United States among people who are not actively involved in political issues. In 1969, 54 percent rated the Supreme Court fair or poor; only 33 percent excellent or good. Fifty percent trust the Congress more than they trust the highest court in the land.
Does the federal judiciary reflect your views? In 1981, 77 percent of the public said "no." Ten percent said "yes." Should the court have its jurisdiction on busing withdrawn? "Yes," 81 percent; "no," 14 percent. Should there be a congressional override of the Supreme Court by two-thirds vote? (In other words, if two-thirds of the Congressmen vote to override a Supreme Court decision, should that constitute an equivalent to a presidential veto?) Fifty-five percent said "yes." Thirty percent said "no." Should there be a periodic reconftrmation of judges? Seventy-five percent were in favor of it. They are also in favor of electing federal judges. Here is an interesting note from a 1985 poll: Who is most responsible for high crime in Texas? Commanding 28 percent, the number one answer was "the judges!" The number two answer was "lawyers." So they got the spawn as well as the progenitor. (By the way, the third answer was the parole board.) And when asked the question Is there too much concern for the rights of criminals shown by the courts?, 70 percent answered "yes." It is evident that the courts have earned very little sympathy and have engendered a fair amount of cynicism.
But here, too, there is no groundswell of support for draconian measures. People are not marching in the streets demanding to overhaul the legal system. They may disagree with the courts and with an intrusive government (73 percent say the government has too much power over citizens), but there seems to be an adaptability quotient. People are willing to accept what goes on and to survive and thrive nonetheless. When one thinks about the difficult conditions under which some other nations' citizens have to endure privation, corruption, repression, and the like putting up with some questionable Supreme Court decisions becomes less than a monumental problem.
Concern about the government, the courts, and the Constitution is not new. In the 1920s, two very different senators, Edwin Ladd, a Republican from North Dakota, and Robert Lafollette, a Progressive from Wisconsin, agreed on one statement: "The Constitution is not what its plain terms declare, but what these nine men construe it to be." This sounds like a discussion right out of modern times. And in 1937, a musical by Kaufman and Hart entitled "I'd Rather Be Right" has the Supreme Court declare the Constitution of the United States unconstitutional. The humor is perhaps more fitting than it should be.
The Public Faith in the Constitution
What we know of public opinion on constitutional issues is diverse at best, confusing and inconsistent at worst. It tells us something about public political philosophy, but it fails to capture an important spirit about the Constitution: the belief in it. Our knowledge about it may be lacking, but the devotion to and the faith in the Constitution is and appears to always have been widespread and deep. Don Devine, the former director of the U.S. Office of Personnel Management, has called the combination "ignorance and consensus," but veneration for the Constitution is genuine and longstanding. It is not faddish, and I don't think it is at all self-destructive. Around the turn of the century, A. Lawrence Lowell, of Harvard University put it this way:
For a long time the Constitution was regarded as something peculiarly sacred and received an unquestioned homage for reasons quite apart from any virtues of its own. The Constitution was to us what a king has often been to other nations. It was the symbol and pledge of our national existence. The people may not have taken the Constitution to their heads, but they appear to have taken it to their hearts.
A more jaundiced description of this mystical aspect of the Constitution and Constitutional perspective comes from Thurmond Arnold, an administrator in the New Deal. And he writes rather cynically:
The Constitution became for them (meaning the people) a sort of abracadabra which would cure all disease. Copies of the Constitution, bound together with the Declaration of Independence and Lincoln's Gettysburg Address were distributed in cigar stores. Essays on the Constitution were written by high school students. Incomprehensible speeches on the Constitution were made from every public platform to reverent audiences which knew approximately as much about the history and dialectic of that document as the masses in the Middle Ages knew about the Bible in those days when people were not permitted to read the Bible. The American Liberty League was dedicated to Constitution worship. Like the Bible, the Constitution became the altar whenever our best people met together for tearful solemn purposes, regardless of the kind of organization. Teachers in many states were compelled to swear to support the Constitution. No attempt was made to attach a particular meaning to this phrase, yet people thought it had deep and mystical significance and that the saying of the oath constituted a charm against evil spirits. The opponents of such oaths became equally excited and equally theological about the great harm this ceremony might do.
I don't think that such cynicism is warranted. But there is something interesting about his allusion to the Bible. Most people's lives have a religious aspect, and they take this quite seriously. This transcends and is not at all diminished by the inability of people to pass a quiz on the Bible and the same applies to the Constitution.
How important is it that people really be educated and knowledgeable about the Constitution? Maybe it is less important than we might think. Of course, it would be nice if everybody were knowledgeable about the document. But knowledge is no cure for dissension. The debate on the role of the Constitution in our society will go on, regardless of the degree of civic awareness.
The belief in the Constitution is like love of one's country. And just as with the love of country, the feeling is not acquired through a rational deduction but through emotion. It is genuine, powerful, and compelling, nonetheless. Here is a passage from a constitution which may illustrate the point:
Citizens are equal before the law without distinction of origin, social or property status, race or nationality, sex, education, language, attitude to religion, type and nature of occupation, domicile or other status. The equal rights of citizens are guaranteed in all fields of economic, political, social and cultural life.
Article: Citizens of different races and nationalities have equal rights. Any direct or indirect limitation of the rights of citizens or establishment of direct or indirect privileges on grounds of race or nationality, and the advocacy of racial or national exclusiveness, hostility, or contempt are punishable by law.
Article: Citizens are guaranteed freedom of conscience (that is the right to profess or not to profess any religion; the church is separated from the state and the school from the church).
Article: Citizens are guaranteed inviolability of the person. No one may be arrested except by a court decision or on the warrant.... Citizens are guaranteed inviolability of the home. No one may, without lawful grounds, enter a home against the will of those residing in it.
Article: The privacy of citizens and of their correspondence, telephone conversations, and telegraphic communications, is protected by law.
Article: Respect for the individual and protection of the rights and freedoms of citizens are the duty of all state bodies, public organizations, and officials. Citizens have the right to protection by the courts against encroachments on their honor and reputation, life and health, personal freedom and property.
Now, I venture to say that those words and concepts sound pretty good. If I put them forward to the average man-on-the-street, I would elicit his general support for them. But these passages are not from our Constitution. They are taken from the Constitution of the Union of Soviet Socialist Republics, the most recent and currently governing version adopted in October 1977. If I read these passages or similar ones from our Constitution to ordinary citizens in the Soviet Union, they would perhaps recognize them as somehow connected with constitutional authority, but the meaning given to the words would be very different from the meaning given to the words by Americans. People here do have an understanding of what it means to have property rights, of what it means to have individual liberty. They have an appreciation for what democracy is all about, even if they are not precise and cannot cite the appropriate historical references and logical arguments. Their perspective on what freedom in America is about is clear and their suspicion of what "freedom" in the Soviet Union means is also very clear. The layman knows very little about the U.S. Constitution, granted. He knows even less about the Constitution of the U.S.S.R., but he knows full well that he would rather live here than there. That's an appreciation of the Constitution on the most fundamental level.
Constitutional comparisons also give strength to the concern about the intentions of the Founders. I have omitted some of the other articles of the Soviet Union's Constitution and the Preamble which gives the official Russian perspective on what the Bolshevik Founders meant, but that document should demonstrate the importance of not taking words out of context. It also offers a compelling reason why we should be concerned that nine lawyers on a committee called the Supreme Court, unelected and ensconced for life in their office, should be able to determine in broad measure social, economic, and constitutional policy for the United States. Giving too much power to any centralized authority leads to a compromise of individual liberty and ultimately a diminution of the democratic nature of our republic. As Professor Lino A. Graglia of the University of Texas Law School has put it, the Constitution "was not written in disappearing ink." He continues:
The Framers' solution to the problem of protecting human freedom and dignity was to preserve as much as possible ... a system of decentralized democratic decision making, with the regulation of social conditions and personal relations left to the states. [Giving] virtually unlimited Supreme Court power to decide basic social issues for the nation as a whole, effectively disenfranchising the people of each state ... is directly contrary to the constitutional scheme.
I think the American people would agree. I think they would sooner take their chances with the democratic process and a strict interpretation of the Constitution.
Hillsdale College was established over 140 years ago. For nearly a century and a half, it has refused to accept federal funds or control in order to fulfill the mission of its founders first articulated in 1844: "to furnish all persons who wish, irrespective of nation, color, or sex, a literary and scientific education."
The Hillsdale College Press offers a number of books on a variety of issues explored in on-campus seminars sponsored by the College's Center for Constructive Alternatives and in the nationwide programs of its Shavano Institute for National Leadership. Included in this volume are papers presented by Edward J. Erler, Lino A. Graglia, Stephen J. Markman, Edwin Meese III, Avi Nelson, Charles E. Rice, Glen E. Thurow, and J. Clifford Wallace. For more information, call or write the Hillsdale College Press, Hillsdale, Michigan 49242. (517) 437-7341.
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