Taking the Constitution Seriously

Unlike the first federal judges, whose formal legal education was likely to have been very limited indeed — John Marshall was largely self-educated in the law and John Jay, the first chief justice, learned his in an office–today’s judges come from the schools where they are formally instructed in the various branches of the law, including constitutional law. There is probably not a law school in the country that does not offer that particular instruction or many that do not make it part of the required curriculum. There is, however, good reason to doubt that many, or even if any, offer a course in the Constitution. It is in fact not unusual to encounter constitutional law courses that begin with the Fourteenth Amendment, a practice that is defended on the ground that, after all, the schools are in the business of training practitioners and the great bulk of an attorney’s constitutional law practice will be in the area of the Fourteenth Amendment.

The situation is only marginally better in the colleges. Jefferson advised students interested in the law to read Adam Smith’s Wealth of Nations, “the best book extant” on political economy; Montesquieu’s Spirit of the Laws; Locke’s little book on government, “perfect as far as it goes”; and, “descending from theory to practice there is no better book than the Federalist.” Such advice is rarely given today, and almost never as part of a curriculum in constitutional government. Undergraduates will be offered courses in constitutional law, but in the typical political science department that is likely to involve the study of judicial behavior or, at best, civil liberties. And there, as in the law schools, that means the study of Fourteenth Amendment rights, with the consequence that there, again as in the law schools, constitutional government comes to mean go government within the limits prescribed by the judiciary and only nominally by the Constitution, or by a Constitution kept “up to date” — which is to say, revised — by the judiciary.

The prince of revisionists is, of course, Justice William J. Brennan, Jr.; as might be expected, he is also a speaker much favored by academic audiences — or, at least, by the professors who decide who shall speak to the academic audiences. It was before one such audience that Justice Brennan suggested that the Fourteenth Amendment was “perhaps our most important constitutional provision,” more important than the “original basic document itself”; and it was before another such audience that he ridiculed the idea that the Constitution can be taken seriously — the Constitution as written, that is. Someone had recently suggested that, when interpreting constitutional provisions, the justices ought to be bound by the “intentions of the Framers”; this, said Brennan, is a “view that feigns self-effacing deference to the specific judgments of those who forged our original social compact [but in truth] is little more than arrogance cloaked as humility.” Indeed, he went on, there is some doubt as to whether it makes sense to speak of original intention in connection with a document that is jointly drafted. “Typically, all that can be gleaned [from the records they left] 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.”

But Brennan was not being as candid as he would have had his audience believe. The last seven or eight pages of this address were given over to talk about human dignity — he’s for it — and, in his only reference to a specific constitutional issue, he amplified its meaning by discussing capital punishment. He is against it; not only that, he insisted here as he has on the bench that it is unconstitutional.

 

The following litany appears in literally scores of memorandum decisions where Brennan and his closest colleague, Justice Thurgood Marshall, are in dissent: “Adhering to our views that the death penalty is in all circumstances cruel and unusual punishment prohibited by the Eighth and Fourteenth Amendments … we would grant the application for stay, the petition for writ of certiorari and vacate the death sentence in this case.” But the Constitution is not obscure on the death penalty. This could not be said to be one of those subjects where the Framers, being unable to agree, “hid their differences in cloaks of generality.” On the contrary, the constitutional text is crystal clear. It permits capital trials when preceded by a “presentment or indictment of a Grand Jury; it permits a person to be “put in jeopardy of life,” provided it not be done twice “for the same offense”; it permits both nation and states to deprive persons of their lives with but not “without due process of law”; and, in addition to these various Fifth (and Fourteenth) Amendment provisions, in Article II, section 2 (1) it empowers the President “to grant reprieves.” The Constitution as written permits capital punishment; it can be said to forbid it only if time has somehow worked some strange alchemy on the text. And that is Brennan’s contention.

The question is not, he says, what did the words mean but, rather, what do they mean in our time? “For the genius of the Constitution rests not in any static meaning it might have had in a world that is dead and gone, but in the adaptability of its great principles to cope with current problems and current needs.” This is easily said–which is one reason why it is so frequently said — but not so easily done, and not so easily done because there is typically no agreement on what is required to deal with the problems or meet the needs. All sorts of Americans — in the electorate, Congress, state legislatures, White House, statehouses, and courts of all descriptions — have ideas as to these matters, but they do not always or usually agree. Supreme Court justices do not always agree, which gives rise to a small problem.

Assuming, for the moment, that the Constitution is to be adapted rather than formally amended, then, surely, the justices should have some say in the matter. But which justices? Here is how they voted in a recent case having to do with health care for handicapped infants: “BURGER, C.J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I and II, in which BRENNAN, MARSHALL, BLACKMUN, POWELL, REHNQUIST, STEVENS, JJ., and 0 CONNOR, joined, and an opinion with respect to Part III, in which POWELL and REHNQUIST, JJ. , joined. BLACKMUN, J., filed an opinion concurring in part. STEVENS, J., filed an opinion concurring in part and concurring in the result. O’CONNOR, J., filed an opinion concurring in part and dissenting in part, in which BRENNAN and MARSHALL, JJ., joined. WHITE, J., filed a dissenting opinion.” Time, perhaps, will tell who on the Court is right respecting the problems and prescient respecting the needs; but when “time” and not the constitutional text provides the standard by which judicial decisions are to be measured, the inevitable consequence is a Constitution that can be interpreted but not misinterpreted, construed but not misconstrued. Why, then, bother with a constitution at all? What good is it?

The Framers had a better grasp of these matters. They provided for a Supreme Court and charged it with the task, not of keeping the Constitution in tune with the times but, to the extent possible, of keeping the times in tune with the Constitution. To repeat the words of the great chief justice, John Marshall, the principles of the Constitution “are deemed fundamental [and] permanent,” and, except by way of formal amendment, “unchangeable.” He was emphatic about this because he had a keen appreciation of constitutional proprieties, or of the principles on which the entire structure rested. The Constitution derives its binding authority — binding on the governed and the government alike — only from the fact that it is an act of the people in their constituting capacity. According to Alexander Hamilton, this was common knowledge at the beginning, an opinion shared by all the “friends of the proposed Constitution.” Only the people may ordain and establish a constitution, and only the people may “alter or abolish” a constitution already established–and they may do so only when acting in a “solemn and authoritative” manner. That, said Hamilton, is a “fundamental principle of republican government.”

By what right would the Supreme Court “adapt” a Constitution that owes its authority to the fact that it was adopted by the people? It is astonishing how seldom this obvious question is addressed by the friends of judicial adaptation. When pressed, they refer to Marshall’s opinion in McCulloch v. Maryland, but, as I have demonstrated elsewhere, they misunderstand that opinion because they misquote it. By what right would Brennan and Marshall, in the face of those crystal-clear provisions, five of them, change the Constitution to have it forbid capital punishment? They say that time has changed our notion of what is cruel and unusual, that as a people we are less sanguinary than we were in 1787, but, even assuming its relevance, there is no evidence of this. The polls show, and show consistently, strong majorities in favor of the death penalty.

Again, in Bowers v. Hardwick, Justice Harry Blackmun lacked one vote of being able to speak for the majority of the Court. So, to repeat the question, and this time more radically: by what right does a bare majority of the Court “adapt” or revise the Constitution to make homosexual sodomy a “fundamental right”? Blackmun provided an answer (of sorts) in what proved to be the dissenting opinion: “Like Justice Holmes [he said], I believe that ‘[i]t is revolting to have no better reason for a rule of law than that so it was laid down in the time of Henry IV. It is still more revolting if the grounds upon which it was laid down have vanished long since, and the rule simply persists from blind imitation of the past.'” But Holmes was talking about the common law — judge-made law — and not about the Constitution. The powers of a judge under the two systems are, to say the least, not the same, and it is “revolting” that a Supreme Court justice does not know this. “It is still more revolting” if he knows it but chooses to ignore it.

But enough; the remarkable thing about the Constitution is how little it has had to be changed or, for that matter, adapted. Since the adoption the Bill of Rights, the Constitution has been formally amended sixteen times, and only six or seven of those could properly be regarded as amendments to the text (and one of those, the twenty-first, being an amendment of an amendment). Consider the facts:

  • Slavery was abolished by constitutional amendment, but, to do that, not one word of the pre-existing text had to be amended or deleted.
  • Constitutional amendments were required to remove state barriers to black and female suffrage, but not a word of the Constitution had to be changed to allow blacks and women to vote.
  • Women now serve in House and Senate, on the Supreme Court, and will, almost surely, soon be elected Vice President and eventually President, but, to accomplish this, not one word of the Constitution had to be changed or will have to be changed.
  • No constitutional change was required to allow “Jews, Turks, and infidels” to vote or hold political office.

That list could be extended but the point has been made. As my colleague Robert Goldwin has written recently, the original Constitution did not speak of white and black, white and slave, men and women, or Christian and Jew; its terms were “electors,” “citizens,” “members,” “inhabitants,” “officers,” “persons,” and “representatives.” Contrary to what Justice Brennan tells his academic audiences, the Constitution has not had to be rewritten for our world precisely because it was not written for a “world that is dead and gone.”

During the time of its existence, the growth of the government has been astronomical, exceeding the growth of the territory and even that of the population. The population has grown by a factor of sixty — from just under four million to approximately 240 million — and the federal budget is now more than 100,000 times larger than it was at the beginning. (The first budget, prepared by a committee of the House of Representatives and reported by Elbridge Gerry on July 9, 1789, called for expenditures in the amount of $8,285,603; in fiscal year 1987 the national government will spend about $990 billion, or just less than a trillion dollars.) The Framers might be appalled by such numbers, and might very well object to some of the ways that money is being spent; but they might also find some satisfaction, and take some pride, in the fact that the structure of the government is still recognizably their handiwork.

And, were they to investigate the subject, they would discover that that constitutional structure continues to secure the civil and religious rights of the people who live here. In Federalist 51, Madison said that in a free government the security for civil rights must be the same as that for religious rights: “It consists in the one case in the multiplicity of interests, and in the other in the multiplicity of sects.” Safety, he said, would lie — and it does lie — in preventing the formation of “oppressive combinations of a majority,” and that was to be accomplished by means of those institutions discovered or improved by the new science of politics. Those institutions are embodied in the constitutional text, and there is nothing obscure about that text, or nothing so obscure as to defy a search for its true meaning. What is true of the Fourteenth Amendment provisions respecting “privileges or immunities,” “due process of law,” and “the equal protection of the laws” (and that only because we have never given that text its literal reading), is not true of the original and unamended Constitution, and especially not true of those provisions respecting the basic structure of government. Conservatives will want to protect that structure, just as liberals are inclined to tamper with it.

In fact, tampering with it is part of what might be called the liberal agenda. Some liberals, at least, are as eager to abolish the electoral college or the separation of powers, as most of them are to abolish capital punishment, censorship, and an unequal distribution of wealth.

But to speak of a conservative agenda is almost a contradiction, an oxymoron. Conservatives certainly cannot simply take stands opposite to those taken by liberals. They cannot, for example, adopt a program favoring primogeniture, laws of entail, titles of nobility, a social class structure, an established church, drawing and quartering, or any other traditional (but cruel and unusual) form of punishment. These causes are denied to conservatives by the Constitution; or better, the Framers of the Constitution deprived Americans of much, if not all, of a traditional conservative agenda. These terms, liberal and conservative, derive from the Enlightenment and French Revolution, and measured by those events the Constitution of the United States is — clearly and overwhelmingly — liberal. The only appropriate agenda for conservatives is to defend the liberal Constitution — if necessary, to defend it from the liberals — because by that Constitution rights are secured.

This knowledge — that, at least so far as the national government is concerned, security for rights is found in the structure elaborated in that text — could be one of the happy lessons learned in this bicentennial season. In a world where constitutions come and go with discouraging regularity, the fact that ours has survived for two hundred years should cause us not only to celebrate but to search for the reasons for our almost singular success. Such a search must begin with a study of the constitutional text — “the original basic document itself” that Brennan would subordinate — and of the works, such as The Federalist, where that text is elucidated. The occasion calls for instruction in constitutional government, rather than in the constitutional law of our times, and there is no better place to begin that study than in the words and deeds of the Founders, including among the Founders the first Supreme Court justices who, as Ralph Lerner reminded us some twenty years ago, consciously acted as statesmen-teachers, or, as Lerner put it, as “republican schoolmasters” to the nation.

Walter Berns

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Walter Berns (born 1919) is an American constitutional law and political philosophy professor. He is currently a resident scholar at the American Enterprise Institute and a professor emeritus at Georgetown University.

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