The Claim that There Is No Real Reason the Living Should Be Governed by the Dead
Quite often, when I speak at a law school on the necessity of adhering to the original understanding, a student will ask, “But why should we be ruled by men who are long dead?” The same thought is sometimes expressed by law professors, which I find particularly discouraging. The question, by the way, is never asked about the main body of the Constitution, where we really are governed by dead men in such crucial matters as the powers of the President, Congress, and the judiciary, as well as the timing and manner of elections and other central features of our republican form of government. Nor is the question ever asked about the continuing validity of the Sherman Act of 1890, the National Bank Act of 1864, the precedents of the Supreme Court, or ancient contracts or trusts. Instead, the question is asked only about those amendments to the Constitution that guarantee individual rights.
A related objection to the original understanding is that the men who wrote, proposed, and ratified the Constitution were not representative of the society at large, and in these days, when the suffrage has been vastly expanded, there is no reason to be bound by the Constitution the Founders gave us. Again, the idea is not that judges should feel free to alter the composition of the House of Representatives or decide that senatorial elections should occur every two years but that they should be free to create new individual rights and so strike down legislation that would be valid under the Constitution as written.
One answer is that with respect to the individual rights amendments we are not governed by our dead and unrepresentative Founders unless we wish to cut back or eliminate the freedoms they specified and to do so by simple legislative majorities. But that is never what the questioner means. The question is really meant to indicate that courts should be free to write into the Constitution freedoms from democratic control that the Framers omitted. Yet that is the one proposition that the objection to rule by the dead, if it had any validity, does not support. The dead, and unrepresentative, men who enacted our Bill of Rights and the Civil War amendments did not thereby forbid us, the living, to add new freedoms. We remain entirely free to create all the additional freedoms we want by constitutional amendment or by simple legislation, and the nation has done so frequently.
What the questioner is really driving at is why judges, not the electorate but judges, should be bound to protect against democratic choice only those liberties actually mentioned in the Constitution. The real objection is not to rule by dead men who were not fully representative of their society but to rule by living majorities. Though it is disguised, the unrepresentative-dead-men argument is nothing more than an attempt to block self-government by the representatives of living men and women.
The Claim that the Constitution Is Not Law
The assertion that judges may depart from the actual Constitution because it is not law came as a very considerable surprise to me. The natural first response is that the proposition undercuts the institution of judicial review, for how can a judge set aside a statute, which is law, in the name of a Constitution that is not law? There is a sense, of course, in which the assertion is merely a description of what has actually happened. Dean Terence Sandalow’s comment may be understood in this way: “[T]he evolving content of constitutional law is not controlled, or even significantly guided, by the Constitution understood as an historical document.”14 To a similar effect is Dean Paul Brest’s remark that our relationship to the documentary Constitution is “rather like having a remote ancestor who came over on the Mayflower.”15 The same point is made by the anecdote, which one hopes is not apocryphal, about the new chief justice of a state supreme court who, upon first meeting a United States Supreme Court Justice, said, “I’m delighted to meet you in person because I have just taken an oath to support and defend whatever comes into your head.”
But the assertion that the Constitution is not law is advanced by people who want a dramatic expansion of judicial governance in the name of the Constitution. Their point is not that the Constitution does not authorize judicial power but rather that the Constitution does not limit that power, as of course it would if it were law. That was certainly the meaning of the Harvard professor who told me that my notion of the Constitution as law must rest upon an obscure philosophic principle with which he was not familiar. He said that in response to my argument from the idea of law that there were some results a constitutional court could not properly reach. But he is by no means alone. Among the various academics who have said similar things is Dean Paul Brest of Stanford, who wrote:
What authority does the written Constitution have in our system of constitutional government? This is not an empty question. … [Although article VI declares that the Constitution is the “supreme law of the land,” a document cannot achieve the status of law, let alone supreme law, merely by its own assertion.
According to the political theory most deeply rooted in the American tradition, the authority of the Constitution derives from the consent of its adopters. Even if the adopters freely consented to the Constitution, however, this is not an adequate basis for continuing fidelity to the founding document, for their consent cannot bind succeeding generations. We did not adopt the Constitution, and those who did are dead and gone.16
Apparently thinking this dead-men argument sufficient to undermine the Constitution as law, Brest immediately went on to argue that this justified courts in departing from it.
Given the questionable authority of the American Constitution … it is only through a history of continuing assent or acquiescence that the document could become law. Our constitutional tradition, however, has not focused on the document alone, but on the decisions and practices of courts and other institutions. And this tradition has included major elements of nonoriginalism. … [T]he practice of supplementing and derogating from the text and original understanding is itself part of our constitutional tradition.17
This is the best argument I have seen that the Constitution cannot be regarded as law, and the argument is none too good.
The dead-men argument proves too much. It would serve as an excuse for a judge who decided not to enforce the Bill of Rights because James Madison and his colleagues are no longer among us. The judge would be justified in ignoring the Bill of Rights so long as the rest of us assented or acquiesced, which we might well do since the judge would be refusing to enforce the Constitution against a legislative majority’s actions. Beyond that, however, the argument is not clear about who it is that assents to a judge’s alteration of the Constitution. They certainly do not, for example, include the pro-life marchers who demonstrate each year before the Supreme Court on the anniversary of Roe v. Wade. It is also unclear how we actually know that the polity has assented or acquiesced. What choice have those who do not? Civil disobedience? Revolution? Americans would have to overthrow the Court as an institution in order not to be said to have acquiesced in the practice of ignoring the original understanding. The fact that we have not done any such thing is an extraordinarily slender reed upon which to base a continuing judicial power to remake the Constitution.
But that is not the end of the difficulties in which Professor Brest entangles us. One would assume that an effective assent or acquiescence for Brest’s purposes would have to be by a majority of voting-age citizens. That is a very peculiar method of giving the Court authority to redo the Constitution, for it means that the Constitution may be amended if a simple majority of the American people delegate, or do not protest the delegation of, that authority to the Court. But the whole point of the Constitution is to establish law that cannot be amended by majority vote, much less by mute acquiescence. Marbury v. Madison, of course, justified the Court’s power of judicial review by the statement that simple legislative majorities could not be permitted to rewrite the Constitution. Indeed, the entire theory of the guarantees of liberties in the Constitution is that they are countermajoritarian, that if even one person demands his constitutional rights, though the
entire nation would deny them, the Court must give him justice.
It is of course true that no document can become law merely by its own assertion. The Constitution did not become law merely by its own assertion. Neither does any statute become law merely because near the beginning of the text it says something like, “Be it therefore enacted that….” Neither does any judgment of a court become law merely because the court states: “It is therefore ordered that….” All these writings become law because they are made in ways that the people of this nation assume to be ways of making law. Why should that assumption produce law? I do not know of any ultimate philosophic reason why it should. A legal system cannot operate if we must rethink the perplexed issue of the nature of political obligation every time somebody cites a statute or a case. Law is a very practical instrument for organizing a society into a polity, and it is necessary to any polity that there be ground rules or assumptions that identify certain propositions as laws if they are produced in certain ways. It is clear that this nation has always treated the Constitution as law.
Those who drafted, proposed, and ratified the Constitution meant it to be law. That is why article VI, clause 2 states:
This Constitution … shall be the supreme Law of the Land….18
Even those who opposed the adoption of the Constitution did not suggest after it had been ratified that it was not law. Clause 3 continues:
The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution….19
This Constitution, not one they make up themselves, is to bind federal judges, and they are bound to the same thing that Senators and Representatives are bound to, along with all state officers, legislators, and judges. It would be extremely odd if all of these functionaries are equally bound but one set of them, the federal judges, is authorized to keep changing what it is everybody is bound to. That would mean, contrary to the text, that federal judges are not bound and all other classes of persons mentioned are bound to the judges and not to “this Constitution.”
Every state subsequently admitted to the union accepted the Constitution as law as a condition of admission. All the statutes that Congress has ever passed have been enacted and accepted as law under the authority of the Constitution as law. If the Constitution were of “questionable authority,” then Congress’s authority is questionable, and with it every statute that body ever enacted. So, too, are all the treaties the President has ever negotiated and the Senate has ever ratified. And, since the federal judiciary are created and empowered entirely by the questionable Constitution, all of the decisions handed down in the past two centuries must now be regarded as questionable. If decisions that come out of the historic Constitution are of questionable authority, how much more so must be those decisions that lack even that support? These decisions have only the support of a “constitutional tradition” of departing from a document that has dubious authority. On this thesis, it is difficult to see why anybody should pay any attention to the Supreme Court. Brest’s argument must be that the Supreme Court has authority because, though the actual Constitution is all but irrelevant, the Court has established an easement across the body politic in much the same way that the public gains the right to use a footpath across private property because people have trespassed for so long.
Brest’s second argument is no more convincing. What does it matter to the Constitution’s status as law that we did not adopt it and those who did are dead? The dead-men-make-no-laws argument has already been examined. If it were valid, we might as well say of a statute that it is not law because at the last election so many of those who enacted the statute were defeated that there is no current majority in Congress who voted for the law. Much of our law, statutory and common law, and that growing out of private contracts, was made by men and women dead and gone. Brest’s argument must rest on the unstated premise that no law is legitimate that cannot at any moment be altered or repealed by a simple majority vote. Everything but the Constitution can be altered by majority vote, and it is only the Constitution’s legitimacy that he is at pains to question.
Yet it cannot be that Brest finds legitimacy only in majoritarianism since he wants judges, without even the warrant provided by the actual Constitution, to strike down laws made by majority decisions. If his point were taken seriously, judges would be free to change or ignore the structural provisions of the main body of the Constitution, allowing the President to legislate and Congress to act as commander in chief, as well as to eliminate both elections and the freedoms guaranteed in the Bill of Rights. They were declared to be law in a document of questionable authority by men long dead. If a majority of Americans should want to eliminate religious freedom or authorize searches of private homes without warrants or good cause, there is, on Brest’s view of the Constitution, no particular reason why judges should not let them.
The argument that the Constitution is not law quickly becomes incoherent and chaotic. But if it is law, the tradition of judicial departures from it is profoundly illegitimate.
The Claim that the Constitution Is What the Judges Say It Is
There exists a fatigued cynicism among lawyers and judges that frequently finds expression in the quotation of words attributed to Chief Justice Charles Evans Hughes: “The Constitution is what the judges say it is.”20 Hughes was hardly the first to make the point. “[W]hoever hath an absolute authority to interpret any written or spoken laws, it is he who is truly the lawgiver, to all intents and purposes, and not the person who first wrote or spoke them,” said Bishop Hoadly in 1717.21 The statements are sometimes taken to ratify cynicism. They should not be. Nobody familiar with Hughes’s career would suppose he meant that power is all. It is essential to bear in mind the distinction between the reality of judicial power and the legitimacy or morality of the use of that power.
It is not more than a truism that, for practical purposes, at any given moment the Constitution is what the Justices say it is. Right or wrong, the statute you petitioned your legislature to enact has suddenly become a nullity because the Justices say it is. But behind that realism lies another fact just as real, and one with normative meaning: there is a historical Constitution that was understood by those who enacted it to have a meaning of its own. That intended meaning has an existence independent of anything judges may say. It is that meaning the judges ought to utter. If law is more than naked power, it is that meaning the Justices had a moral duty to pronounce. Hoadly and Hughes, far from reconciling us to cynicism, emphasize the heavy responsibility judges bear. Power alone is not sufficient to produce legitimate authority.
G. K. Chesterton is said to have illustrated the distinction between power and authority while engaged in discussion in a restaurant. “If a rhinoceros came in through that door,” he said, “it would have considerable power. I should be the first to rise, however, and to assure the creature that it had no authority.”
The Claim that the Philosophy of Original Understanding Involves Judges in Political Choices
It has been argued, by Ronald Dworkin among others, that the claim of proponents of original understanding to political neutrality is a pretense since the choice of that philosophy is itself a political decision.22 It certainly is, but the political content of that choice is not made by the judge; it was made long ago by those who designed and enacted the Constitution. It was a choice between a judicial branch that is a policymaking arm of government and a judicial branch that implements the policies made by others. That, as we have seen, is what the separation of powers was designed to accomplish as it affected the courts.
Another version of the inevitability-of-political-choice argument is that the adoption of a philosophy of original understanding would have political consequences. Thus, it was said that President Reagan’s nomination of me was intended to alter the direction of the Supreme Court, which was a
political intention on his part, and which would have produced results of a different political complexion from those the Court had been producing. This argument is made to justify the political campaign against my confirmation. If that campaign is to be justified, it will have to be done on more intelligent grounds.
Constitutional philosophies always have political results. They should never have political intentions. The proper question is not what are the political results of a particular philosophy but, under that philosophy, who chooses the political results. The philosophy of original understanding means that the ratifiers of the Constitution and today’s legislators make the political decisions, and the courts do their best to implement them. That is not a conservative philosophy or a liberal philosophy; it is merely the design of the American Republic. A theory of judging that allows the courts to choose political results is wrong, no matter in which direction the results tend. When the Supreme Court was dominated by conservative activists, prior to the coming of the New Deal Court, adherence to original understanding and judicial self-restraint was urged by liberals. Since the Supreme Court of the past several decades has been more likely to create constitutional rights that liberals like, those views are likely to be espoused by conservatives. Constitutional philosophy too often depends on which political view dominates the Court.
The Tempting of America Page 23
