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, Michigan
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
ISBN 0-916308-92-8
Cover photo by Neil Slavin Studio
Contents
Contributors................................................. vii
Foreword.................................................... xi
Introduction................................................ xiii
Whose Constitution? An Inquiry into the Limits of Constitutional
Interpretation.............................. 1
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
Laws.................................... 107
Glen E. Thurow
The Layman's Perspective on the Constitution........ 125
Avi
Nelson
Contributors
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.
Avi Nelson
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.
Foreword
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.
Forrest McDonald
Department of
History University of Alabama
Introduction
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.
Whose Constitution?
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.[1] 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.[2] 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.[3] 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.[4]
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."[5] 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."[6] 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.[7]
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."[8] 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."[9] 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.[10] 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.[11]
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.[12] 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.[13] 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.[14]
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.
Notes
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.
12. Ibid.
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."[1] 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."[2]
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."[3]
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.[4] 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."[5] 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."[6] 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."[7] 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."[8]
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."[9]
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."[10] 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."[11] 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."
First Principles
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.[12] 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.[13] 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.[14]
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.[15]
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."[16] 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."[17] 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."[18] 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."[19] 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."[20] 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.
Notes
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."[1] 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