Whose Will Shall Rule?

For decades, now, the universe of constitutional interpretation has been divided into “textualists,” who argue that the document must be read according to the reasonable meaning of its words, and those who argue for a “living” constitution, the meaning of which can “grow” over time to “meet the needs of a changing people and nation.” For all that time, textualists have been attacked on two grounds. First, that there is no plain meaning to the Constitution, that its words are vague and open to very wide interpretation, such that textualist claims are by nature wrong and even in bad faith, leaving the choice between a false certitude serving the interests of entrenched elites, or the more egalitarian meanings arrived at by progressive judges through practical reasoning on the basis of policy considerations. Second, and more damning, is the charge that textualist arguments, whether true or not, inevitably lead to bad decisions that penalize the weaker members of our society, minorities who are oppressed on account of race, sex, or sexual orientation. To be a textualist, on this view, may not necessarily mean that one is a racist, sexist, homophobe. But it certainly means that one supports a tendentious reading of the Constitution that is hostile to minorities, women, and homosexuals.

The first charge is rather easily dispensed with, for it is itself rooted in a combination of ignorance and bad faith. Examples are legion, but, given the charges of bad faith leveled against textualists, it may be best to choose one that goes against the moral positions many of us hold. The death penalty, not to mention many other punishments, has been severely restricted in its application by our courts on the grounds that it violates the Eighth Amendment’s prohibition of “cruel and unusual punishment.” Catholics, among many others, are as a matter of conscience and Church teaching opposed to almost all applications of the death penalty (the argument, interesting and sometimes contested, need not detain us, here). But there is simply no room for doubt that the prohibition against cruel and unusual punishment does not require restrictions on the death penalty so long as it is imposed according to law.

One might applaud any movement toward more civilized conduct in our society. But this does not mean that the courts have the right, on their own, to restrict application of the death penalty in most cases. Indeed, the meaning of this provision of the Constitution is as clear as it can be. The phrase, “cruel and unusual punishment” is lifted directly from the English Bill of Rights, enacted with the express purpose of preventing judges from imposing punishments not laid down by law, with the intention of inflicting illegal cruelty upon the prisoner. That the death penalty might be at issue, here, borders on the downright silly because a felony had been defined for centuries as a crime for which the convicted criminal was liable to be executed.

Some provisions of the Constitution require more work to interpret than does the ban on cruel and unusual punishment. New conditions may require some consideration of analogies. For example, does the Fourth Amendment’s protection of our security in our “persons, houses, papers and effects” against unreasonable searches and seizures include a bar on the National Security Agency’s snooping in our emails? The answer seems rather clearly “yes” to me. But the answer does involve the use of our reason to identify electronic communications with papers and effects.

Still, it seems clear that “noninterpretivist” theories have the weaker side of any argument over constitutional meaning. If we truly are concerned with discerning the meaning of the words in the Constitution, we can do a rather decent job of it by paying attention to the words themselves and their grammatical and historical context. The job is not that hard, frankly, and will produce clear answers in almost all cases, though it does take some skill and effort.

The real advantage for the “living” Constitution lies in the charge that a fair reading of the Constitution would, in effect, oppress people. Pick your bad policy, harmful practice, or unequal distribution, and the claim is made that the “old, dead” Constitution was to blame for it, and only progressive judges were able to fix it, or can fix it now and for the future.

The first error at the root of this claim is that somehow the Constitution forbids, by the plain meaning of its words, decent treatment of various minority and underrepresented groups. On the contrary, for example, nothing in the Constitution denied women the right to vote, or to own property. Those unjust provisions were embodied in laws that could have been changed by the legislatures and were, in fact, changed by the legislatures.

Then there are the clear injustices of slavery and segregation. The Constitution did assume the existence of slavery and, alas, make certain provisions for its protection (e.g. forbidding abolition of the slave trade prior to 1808). But states were free to abolish the practice within their borders, and most did prior to the Civil War. After the Civil War, of course, the Constitution was amended to abolish slavery. In addition, the Fourteenth Amendment extended citizenship, with all its protections, to African-Americans, also guaranteeing them rights of due process and equal protection of the laws.

It was the failure of communities, states, and the nation as a whole to live up to the guarantees of this Amendment that formed the basis for the civil rights movement and, what is not the same thing, the call for a “living” constitution. But the Constitution did not prevent the extension of these rights. Indeed, the Fourteenth Amendment specifically empowers Congress to “enforce, by appropriate legislation, the provisions of this article,” including provisions regarding dues process and equal protection of the laws.

The story, of course, is that Congress failed in its duty to enforce these rights, until the Supreme Court eventually stepped in and forced them to do so through a progressive reading of the Constitution. The implication is that we should trust judges, rather than our legislatures, to defend our rights, and the rights of minorities in particular. The law having failed us, then, on account of its vague meanings and the bad characters and intentions of its drafters and their legislative successors, we must submit ourselves to the more benign wills of our judges.

But is this the case? Is the track record of our judges really so good that we should be comfortable handing over to our Supreme Court the power to make law by “interpreting” the Constitution to mean what the Justices believe it ought to mean, given the “developing moral sense of the community?”

The broad, discretionary standard used in judicial decisions today leaves the Court wide latitude in determining what the people ought to demand of their government in terms of individual and group rights. Have the judges shown that we can trust their will to produce good decisions and policies? Consider a few cases on point:

Before the Civil War, the Supreme Court decided the case of Dredd Scott v. Sanford. Here, the Court decided that it knew better than the Constitution what African-Americans are, as well as what they were not, determining that they could not be citizens—even though they had been citizens of a number of states for many decades. The Court, in the name of “property rights” and winning peace with slaveholders, decreed that a citizen was not a citizen if he or she had black skin, and so could not sue to defend his or her rights in a federal court. What’s more, the Court said, the actual compromise (The Missouri Compromise) that our legislators had worked out to prevent war was itself was unconstitutional because it went against their universal view of African-Americans and so must be undone. It is not too much to say that this horrible decision, rooted in political dealmaking and racial animus rather than the Constitution, helped bring the Civil War.

But, you say, “we know better now?” Well, a few decades later, in Plessy v. Ferguson, the Supreme Court ushered in the era of formal segregation by upholding “separate but equal” laws regarding accommodations in railroad cars.

There is much more, of course.

During the post-Civil War period, the Court also decided that our understanding of contracts, again, going back for centuries, and incorporated in the Constitution, was simply wrong, and that state governments could not “impede” contracts by, say, establishing maximum numbers of hours that employers could require from their workers.

This was a time in which some steel plant gave their workers a day off every other week. And to get that day off, they had to work 12 hours per day, seven days per week, and a full 24 hours every other week. Thank goodness the court was there to protect those workers (and “national markets”) against state laws capping work hours.

Or consider that great “progressive” icon Oliver Wendell Holmes, Jr. In a case involving the forced sterilization of a mentally handicapped woman who was almost certainly raped (Buck v. Bell), Holmes famously decided that “three generations of imbeciles are enough.” No old-fashioned right to liberty for Holmes. The right of society to be made genetically free from “defectives” was more important, for him.

I have dealt before with the extremely limited practical effect of the Court’s decision in Brown v. Board of Education. Rather than repeat myself, let me just point out that while we might agree with many of the policies served by Supreme Court decisions in recent decades, this does not make it wise to cede to that Court the power to make laws as it has been doing. Certainly, one may respond that critics are simply unhappy with some of these decisions and policies. Where religious freedom and the expansion of government power are concerned, I count myself among the unhappy.

But proponents of judicial will should ask themselves what might happen if the Supreme Court comes to be dominated by people whose will is not what they would like it to be. What if the Justices come to think that freedom of speech and assembly and due process aren’t so important after all? Whether “bad” Justices see themselves defending tradition or the new, “progressive” policies of our new regime, they may decide our old-fashioned rights aren’t that important, after all. If NSA spying and the holding of American citizens without trial for being “enemy combatants” don’t worry you, consider the mere fact that judges with life tenure can exercise their will in a fashion more absolute than any legislature.

The exchange between William Roper and Sir Thomas More from the movie A Man for All Seasons should be well-known, particularly to lawyers, but it bears repeating, here. More has just told Roper that the protections of the rule of law must be extended to everyone, even the Devil himself.

Roper: So, now you give the Devil the benefit of law!

More: Yes! What would you do? Cut a great road through the law to get after the Devil?

Roper: Yes, I’d cut down every law in England to do that!

More: Oh? And when the last law was down, and the Devil turned ‘round on you, where would you hide, Roper, the laws all being flat? This country is planted thick with laws, from coast to coast. Man’s laws, not God’s! And if you cut them down, and you’re just the man to do it, do you really think you could stand uprights in the winds that blow, then? Yes I’d give the Devil benefit of law, for my own safety’s sake!

Judges who “do justice” fail to “do” law, and the law dies. Then we are left with the will of those in power, and that is tyranny, an ill wind that blows down any flimsy barriers we may use to protect what is left of our liberty and our dignity.

Editor’s note: This column first appeared October 2013 in Imaginative Conservative and is reprinted with permission. Photo depicts Chief Justice William Howard Taft and his fellow Supreme Court justices c. 1923.

Bruce Frohnen


Bruce Frohnen is Professor of Law at the Ohio Northern University College of Law. He is also a senior fellow at the Russell Kirk Center and author of many books including The New Communitarians and the Crisis of Modern Liberalism, and the editor of Rethinking Rights (with Ken Grasso), and The American Republic: Primary Source. His most recent book (with the late George Carey) is Constitutional Morality and the Rise of Quasi-Law (Harvard, 2016).

  • Adam__Baum

    “let me just point out that while we might agree with many of the policies served by Supreme Court decisions in recent decades”
    No. Emphatically Now.
    There’s just as much error today as in the antebellum period. NFIB v. Sebelious, Kelo v. New London, Casey v. Planned Parenthood, Lawrence v. Texas, United States V. Windsor- all horrendous miscarriages of justice.
    The practice of law, but especially jurisprudence is a pretentious dark art.

  • Stephen

    They declared the constitution a “living document” so that they could kill it.

  • Wow what a surprise that a document drafted largely by Protestants and deist liberal traitors would actually help facilitate liberalism!

    • Adam__Baum

      It would be nice if that were true, but those deists and Protestants were less hostile to religion in the public square than the secular Jews and nominal Catholics (who I believe are the majority) that now comprise the entire Court.

      • Eamonn McKeown

        Shocking that there isn’t a Protestant on the court. Pretty darn shocking even when you consider the small size of the Court. I keep hearing about Southern evangelicals and their increasing conservatism on n.f.p., and wonder if it will have a future positive impact on our polity?

  • TheodoreSeeber

    Article I Sections 8 & 10 of the US Constitution made subsidiarity and neighborhood solidarity illegal in the United States. Amendment 10 tried to give it back to us, and Amendment 14 took it away again.

    There is no reason why in a pluralistic society, pockets of monoculture can’t be allowed to exist on their own, cut off from the rest of society by military and economic force if necessary. But the Constitution denies us this right, directly.

    And because of that, Obamacare is allowed to exist and the most anti-Catholic president in a century locked priests out of churches on military bases.

  • Michael Paterson-Seymour

    If one looks back to an earlier period, in Jones v Opelika [319 US 584 (1942)] one finds Roberts J complaining that, in some six years, the court had fourteen times reversed one or more of its earlier decisions, many of them recent. He observed that such decisions tended “to bring adjudications of this tribunal into the same class as a restricted railroad ticket, good for this day and train only. I have no assurance, in view of current decisions, that the opinion announced today may not shortly be repudiated and overruled by justices who deem they have new light on the subject.”

    As one particularly egregious example, a case, Minersville School District v Gobitis [310 US 586 (1940)] that was decided by a majority of eight to one, was overruled three years later in West Virginia School Board of Education v Barnette [319 US 624 (1943)] by a majority of six to three. Of the six, three of the Justices (Black, Douglas & Murphy JJ) had changed their minds, two (Jackson & Ritledge JJ) were new appointments and one was the former lone dissident (Stone CJ, formerly Stone J)

    Surely, the highest court having once decided what the law is, it should be for the legislator to say what it ought to be.

    • Adam__Baum

      Stare Decisis is an excuse for the status quo when the blackrobes wish it to be so, and nary a consideration when they wish to upend something.

      • Michael Paterson-Seymour

        Which means that no one can plan their affairs with any degree of certainty. The Roman law has governed Europe for two thousand years, because anomalies and even bad laws are a price worth paying for simplicity and certainty

        • Art Deco

          Re: Bork: stare decisis is an important consideration when evaluating statutory law, which is subject to ready change. The rigidity of Constitutional text in this country alters the calculus in favor of correct interpretation over stable interpretation.

    • Art Deco

      Again, altering Constitutional text in this country is quite difficult and most amendments since 1971 have been housekeeping matters, procedural matters, or small amendments to the suffrage.

      Is what you are referring to a problem if the decision is per curiam? If it is just resolving that case and there is no opinion functioning as binding or persuasive authority, is it a problem?

      • Art Deco

        Excuse me, since 1791.

  • tom

    When the “end justifies the means” crowd dons the black bathrobes, the end is obviously near. One of them becomes “chief” judge and appoints a crony to rule on a matter the way he’s told her to do. Then, on appeal…miracle of miracles…he affirms her “progressive dictate.

    The best case was when Felix Frankfurter knew Thurgood Marshall’s papers were sub-par. So, he had Alex Bickel pass tips and versions of arguments from Franfurter to Thurgood. The result is Brown vs. Board of Education. Of course, the Topeka, NYC, Chicago and Atlanta schools systems are all still segregated.

    They use our Constitution for bodily functions, as our third branch of gubmint whithers like the other two.

  • FrankW

    Thanks for a good article. Is there any hope of the textualists (or constructionists) winning this argument in the public arena and eventually at the ballot box?

    It is the “living, breathing document” crowd that has led us to where we are today, from the finding of a constitutional right to abortion (and tens of millions of abortions as a result) to a supposedly constructionist judge rewriting legislation from the bench, changing “government mandate” to “tax”, for what seems to be no reason other than personal legacy building, courtesy of the mainstream media.

    Maybe the discussion needs to begin with judges remembering what their duties are, and what they are not. But that would require something that seems to be missing from most of our elected officials and prominent judges; humility.

  • fredx2

    When I was in law school in the 80’s, I once asked a professor of Constitutional law why the 10th amendment did not apply to a particular case. (The 10th amendment says “The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.)

    His answer floored me. “Oh, we don’t pay attention to that one anymore.”

    And, in a way, he was right. The professoriate had simply had stopped considering some parts of the constitution. The same for large swaths of the judiciary. They felt it was OK to simply disregard some parts that they did not like.

    • Adam__Baum

      Another bit of evidence that “law school” is neither.

    • Art Deco

      It was about 15 years ago that Robert Bork offered the view that ‘constitutional law’ had been destroyed as an authentic intellectual subdiscipline. He said it had been until comparatively recently, but that appellate courts had grown so unprincipled that scholars had no real material to work with and their utterances had degenerated into a speculative game where you tried to discern which policy the courts would support next.

  • Aliquantillus

    I find it interesting that the author opts for textual reading of the Constitution over against the option of a “living” constitution, and thus favours a “Protestant” hermeutic to a “Catholic” one. This is never done in Catholic interpretations of the Bible. There a textual — or grammatical-historical reading — soon gives way to a “sensus plenior” approach which is in line with later Catholic tradition and the declarations of the Magisterium of the Church. My questioni: If this approach of a “sensus plenior” is justified in reading the Bible, then why is it not justified to read the American Constitution under the light of later judicial interpretations and under the guidance the “Magisterium” of the Supreme Court? It seems to me that the author’s philosophical presuppositions are deeply flawed when he chooses for a “Protestant” hermeneutic in dealing with the Constitution in the context of a Catholic worldview.

    • quisutDeusmpc

      Your analogy is tendentious. The sacred Scriptures are divinely inspired; the U. S. Constitution (while a bit of human political genius) is not. Just as Jesus Christ is both human and divine; so the sacred Scriptures are both human and divine. The U. S. Constitution is merely human and therefore does NOT have a “spiritual” sense that might be equated with a “living” Constitution / “growth” in meaning. The “living”/”growth” interpretation is particularly problematic as it is secular society’s way of co-opting the Catholic understanding in only a secular materialist sphere and claiming for itself the right to play God with society’s laws (it is the Garden of Eden all over again – man wanting to be God without God). It seems it is your philosophic presuppositions of reading a hermeneutic which is applicable only to a divinely inspired text, into a merely secular one and fail to make the legitimate distinction between the supernatural and the natural.

      • slainte

        The Church of Jesus Christ of Latter Day Saints (Mormon) believes that the Constitution is divinely inspired.

        “I established the Constitution of this land,” said the Lord, “by the hands of wise men whom I raised up unto this very purpose” (D&C 101:80).



        • quisutDeusmpc

          With all due respect to the Mormons, there are records on file in New York of a history of the founder, Joseph Smith, having been a “diviner” (that is, someone who used a forked stick to “divine” for the location of a favorable place to dig a well / locate a source of water on a piece of property. When he had founded the Mormons, he claimed to have the ability to read the original languages of the sacred Scriptures: ancient Hebrew and ancient Greek. He is on record in a court trial transcript as claiming to have received training to do so. When presented with a common text, he was unable to translate, and on cross examination admitted that he had lied. Please reference an unbiased history of Mr. Joseph Smith. Walter Martin’s “The Kingdom of the Cults” is a fair, scientific and reliable treatment of the subject. It is also instructive that there are certain “religions” whose baptism the Church does not accept as valid, if an adherent from that religion is seeking to be accepted into full communion with the Church: both Jehovah’s Witnesses, and the Mormons are among groups that fall into this category. Mr. Smith began operating in New England in the wake of what became known as the “Second Great Awakening” – a second wave of Protestant revivalism that swept through the colonies around 1810-1820. If you ask me, Mr. Smith seems to have combined English Protestantism with a patriotic Americanism to create a hybrid Anglo-Aryanism with religious underpinnings.

    • quisutDeusmpc

      Looking at it from a merely human perspective, the separation of powers between the legislative, the executive, and the judiciary enumerated in the U. S. Constitution was meant to ensure that it was the “people” signified by the legislature which made laws and the judiciary that interpreted those laws according to the people’s understanding. In the Church the magisterium acts as legislative, executive and judiciary “binding and loosing” from the “sensus penior” of sacred Scripture and sacred Tradition.