Among the Constitutionaloids/Party Poopers
Eastland, Terry
AMONG THE CONSTITUTIONALOIDS PARTY POOPERS by Terry Eastland s the Constitution nears its 200th birthday, it is receiving the expected encomia from columnists, lawyers, judges, and others. One...
...Seen against this backdrop, the bicentennial of the Constitution should be the occasion for recovering some important truths about our Constitution and the kind of government it instituted...
...In February, the Philadelphia Inquirer offered its readers the views of a lawyer who also doubles as a professor...
...The fact is that this understanding of the Constitution is not the correct way to think about our basic law in general, or the role of judges under it, in particular...
...And this will, guided by the principles of the Declaration of Independence, is expressed in the Constitution itself...
...A little-known industry is booming in the nation's law, schools, as professors busily engage in what one writer has approvingly called "the meaning-giving enterprise...
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...should be "put to the service of evolving contemporary values''—no doubt by judges...
...Ideas have had their consequences, and since Wilson's time many provisions of the Constitution—such as thedue process clause, the equal protection clause, and the free speech clause—have come to be regarded as "great" and "majestic" generalities that judges, influenced by various modern ideologies, must turn into something specific...
...The authors of the Federalist Papers did not talk about some amorphous document, and by no means did they ever argue that the "real Constitution" would be found in endless litigation in which judges have the final—actually, the endless—say...
...The meaning that the Constitution putatively lacks is being manufactured outside the text, from such abstract materials as "deeply embedded cultural values," "moral evolution," and "human dignity...
...It is worth noting that without the Constitution modern judges could not even pretend that what they are doing is judicial review, for the very power to hold acts of the democratic branches unconstitutional requires, obviously, that there be a superior instrument by which those acts are to be measured...
...Remarkably, although not surprisingly given the trends of recent decades, on occasion the Constitution itself simply vanishes from court opinions...
...This is hardly an appropriate way to observe the Constitution's bicentennial...
...It may well be the case that the courts must decline action, precisely because there is no clear incompatibility...
...Such labor involves consideration of the text, but may go well beyond this to include reflection on the text's structure and history, including its framing and ratifying...
...Exp...
...But it is one thing to hold acts unconstitutional under the Constitution, and quite another, indeed an illegitimate exercise of power, to void (or uphold) them according to the judges' constitution...
...A second is that the peoples intention—its will—should govern...
...For example, the Court But first it must be recovered and bicentennial era, no commemoration would have stayed out of the battles restored...
...With the Supreme Court's adoption in 1937 of the "clear and present danger" test, the clause became, as Wolfe has described it, a statement of vague principle creating a very strong presumption in favor of free speech, with judges left to determine whether the utterance at issue creates such a danger...
...Wilson was one of the first public men of consequence to depart from the traditional view of the Constitution as a document of fixed,- objective meaning —meaning supplied by those who had framed and ratified it...
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...Rather, it had to be comprehended generally, and the level of generality depended on the degree of judicial specification necessary to secure the sort of "progress" deemed appropriate...
...This design includes a division of power between the national government and the states, and a division of national power into three branches...
...Disparaging the original intent of the contract clause as something for "earlier days," the Court opinion based its decision on "a growing appreciation of public needs and of the necessity of finding ground for a rational compromise between individual rights and public welfare...
...Yet all too often this is the way the Constitution is being "celebrated" in this special year...
...The Constitution judicial confusions that have encrusted endeavors to restore to our political isn't...
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...Bottom lines tell the story, and the bottom line of this industry is that the people's Constitution must be made to yield to that of the judges...
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...It can be hard work, depending on the provision at issue...
...For "the intention of the people" is, in the language of the Constitution itself, nothing less than "the supreme law of the land...
...The Times's professor went on to write that these vague phrases Terry Eastland is director of public affairs for the Justice Department...
...To this it must be said, in the first place, that the Constitution does possess objective meaning supplied by those who have framed and ratified it, and it can be found...
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...Wilson arrived at this view of the Constitution largely as a result of ideology...
...Whatever one may think of this decision, none of the three opinions concurring in the judgment made any effort whatsoever to base it upon the text of the Constitution or the intentions of those who framed and ratified it...
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...No, the "real" Constitution is found in the "endless task of constituting its meaning in the crucible of the impassioned claims of citizens, the forceful arguments of lawyers and, above all, the principled decisions of judges...
...This is the traditional understanding of what judges should do in expounding the meaning of the Constitution, and according to it courts are required to focus on what the Constitution objectively means in the effort to enforce "the intention of the people," and to void acts of the other branches or the states only in the case of clear incompatibility...
...A third is that the Constitution, as Herbert J. Storing once put it, provides "a design of government with the powers to act and a structure to act responsibly...
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...In these "doubtful cases," judges will leave the issue with the political branches, and thus the people...
...But in a government of enumerated powers granted by the people in a written Constitution, judicial review can be justified only as judicial enforcement of the popular will—the consent of the governed—as expressed in the Constitution...
...But these views command a substantial if not majority following among those whose professional lives are devoted to thinking, writing, and arguing about law...
...Such views of the Constitution as one now finds routinely expressed in large, respectable newspapers may astound the layman who thinks that the Constitution as written actually intended to say something that can still guide us today...
...The Constitution rather was designed to enable the people to answer those questions, consistent with the terms of the Constitution itself, through the elected branches...
...And it is "in that design," said Storing, "that the security of American civil and political liberty lies...
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...This is not to suggest that constitutional interpretation as faithfully done by .judges is or should be an easy task...
...Earlier this year, for example, eight justices of the Supreme Court joined in a judgment holding that the state of Florida violated the First Amendment's free exercise clause by denying unemployment compensation to a woman who had lost her job on account of her religious convictions (she converted to a religion that forbade her working on the schedule shehad agreed to work when hired...
...Or rather, as the development of a political cul our written Constitution, and the role it speaks to them in the sense that it ture in which all branches of the federal of judges under it...
...Some chalk this lack of meaning up to the Framers, saying they meant to be vague...
...As the judges' constitution has supplanted the original one, there have been some occasions on which the Court has not so much generalized a provision of the Constitution, and made it into something else, as it has simply rejected its obvious meaning in order to reach a desired end...
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...T his notion of the meaningless- 1 Constitution-made-meaningful- by-judges is not a new one...
...As Christopher Wolfe has pointed out in his recent THE AMERICAN SPECTATOR MAY 1987 33 book, The Rise of Modern Judicial Review, Wilson instead saw the Constitution "as a collection of broad and rather vague principles that require judicial specification...
...These newspaper essays are far different from the ones written two centuries ago by "Publius" which still today are regarded as the classic exposition and defense of the Constitution...
...Its development precedes the current era and indeed can be traced to the turn of the century, to the writings of Woodrow Wilson...
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...There may be legitimate disagreement over the original meaning of a provision, or the facts to which judges seek to apply a principle may not constitute something plainly within its reach...
...For as Judge Robert Bork has pointed out, the judges have no 34 THE AMERICAN SPECTATOR MAY 1987 authority under our Constitution to legislate constitutional meaning...
...Others are skeptical, even agnostic, denying the possibility of knowing the meaning of a 200-year-old document...
...vague" about these matters...
...But that is not the deepest problem...
...it our basic charter in recent years, as well order the centrality and intelligibility of just doesn't speak to them...
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...Like so many of his age, Wilson believed in progress...
...Perhaps the most outrageous instance of this involved the contract clause, which forbids the states from impairing the obligation of contracts, a primary concern of those who framed the Constitution in 1787...
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...In 1934, the Supreme Court upheld a Depression-inspired Minnesota law that provided for a moratorium on mortgage payments...
...This point is worth stressing, because one reason believers in the judges' constitution are agnostic about the real one is that they assume a wrong model of the Constitution...
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...One may agree with all of this, of course, and still argue that the Constitution is vague and unintelligible...
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...Whatever the reason, these "friends" of the Constitution nonetheless all share a healthy belief in the ability of judges to give the Constitution meaning...
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...Such is the language employed by judges bent on keeping the Constitution in tune with the times, rather than the other way round...
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...Consider, for example, the free speech clause...
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...The New York Times kicked off its commemoration with an article in January by a law professor who, in describing a position he apparently agrees with, said that the Constitution has "many ambiguous and open-ended phrases...
...For many, it seems, there is no Constitution, only constitutional law...
...Instead, the three opinions relied solely on the Court's own earlier opinions in this area—opinions that themselves are only tenuously grounded, if at all, in the original understanding of the First Amendment...
...One of these, of course, is the judicial branch, which is granted the power of judicial review...
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...And this task will require the will be more important-both intellecover reapportionment, capital punish removal of the academic myths and tually and politically-than that which ment, and abortion...
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...One cannot help but notice, however, that many of those lavishing praise upon our founding charter are at the same time implying if not explicitly stating their belief that in key parts (if not the whole) it lacks intrinsic meaning...
...If the traditional approach to the Constitution had been followed in reTHE AMERICAN SPECTATOR MAY 1987cent years, the Court would not have leaves them to the political branches for government, and also the states, take legislated in many of the areas it has, resolution...
...One of these is obvious: that the only legitimate source of political power is the people...
...But in the first decades of this century civil libertarians sought to understand the clause, not according to text and history, but in a way general enough to accommodate a libertarian view of free speech (which, incidentally, they claim to find in the 14th Amendment's due process clause, a story in itself...
...But nothing could be further from the political theory of our Constitution...
...more seriously and conscientiously for it could not have found warrant in The traditional understanding of the their responsibilities under the Conthe text of the Constitution even for Constitution can still serve us today...
...The criticism of some constitutional provisions as "vague" and "open-ended," the efforts over the decades to generalize the text and have judges specify a meaning-all of this assumes a model in which judges determine policy...
...That is why, during this entering them...
...The mind must labor, as John Marshall once put it, to discover "the design of the legislature," seizing "everything from which aid can be derived...
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...Judges also employ themselves in this industry, although they seldom are as candid about their work as the law professors...
...it could not be comprehended, that is, in its historical particularity...
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...Inquiry into its original meaning requires consideration of the text itself as well as its relevant history, specifically the English common law tradition that prohibited prior restraints on speech yet permitted subsequent punishment...
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...The Constitution was not designed to be a ouija board that judges manipulate to get the answers to society's most pressing questions...
...As Alexander Hamilton explained it in the Federalist Papers, the task of the courts is to compare the "intention of the people" (the Constitution) to the "intentions of their agents" (the legislative and executive acts at issue) and to judge the latter in light of the former...
...For him, the Constitution, to secure progress, could not be understood according toits original terms...
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...He said that the "real" Constitution isn't the one framed and ratified by the people...
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...In many instances, although not all, this approach will yield the intention of the instrument, as Alexander Hamilton called it, and thus give judges a principled means by which to decide constitutional cases...
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Vol. 20 • May 1987 • No. 5
