We are Interpreting a Constitution

Editor’s Note: Two weeks ago Sandy Levinson argued in a post entitled “A Jeffersonian Proposal for the Constitution” that we must revisit in a very Jeffersonian fashion of experiment and innovation the supposed failures of our Constitution and be willing to build anew where necessary. This post by Lino Graglia evaluates Levinson’s proposal.

Sandy Levinson could not be more mistaken in stating that “everyone will agree that the task at hand is to figure out how the existing Constitution should be interpreted.”  As a hard-core realist, he is fully aware, and no doubt will readily admit, that the Constitution has almost nothing to do with constitutional law.  Does anyone really think that there is a constitutional right to have an abortion because of how Justice Blackmun interpreted “due process”?  Texas can’t prohibit sodomy and the states can’t have term limits on congressmen not because of the Constitution, but because Justice Kennedy, the American ayatollah, chose to vote with the liberals in those two cases.  Congress can’t limit campaign contributions, Seattle can’t consider race in school assignments, and we have an individual right to own guns, because Kennedy chose to vote with the conservatives in those two cases.  The justices split 4 to 4 so consistently, regardless of the issue, because of their conflicting ideologies, not different abilities to read the Constitution.  The obvious truth is that no controversial ruling of unconstitutionality depends on constitutional interpretation. (Incidentally, Article One does not say “all powers,” it says “all legislative powers”)

On the other hand, I could not agree with Sandy (and Jefferson) more that the Constitution should not be treated as sacred and that it should be made readily amendable.  Nearly all constitutional restrictions are undemocratic and almost always bad ideas.  There is no good reason why any policy judgment made by human beings in the past should prevail over a contrary judgment made democratically in the present. The clearest and almost only important limit on the states in the original Constitution was the Contracts Clause, prohibiting debtor-relief legislation.  It proved to be a prescription for disaster during the depression, and so the Court (facing a unique opportunity for interpretation!) sensibly simply read it out of the Constitution.. Do we need, for example, the “birther” controversy?—who cares where Obama was born? Federalism, for another example, means only that we have to lie and cheat (hire lawyers) to have a normal (all –powerful) national government.  I’m all for the oxymoronic notion of a “living Constitution,” as long as it is made to live by relaxing the grip of the dead hand, not, a la Brennan, adding new restrictions.

Sandy’s co-conspirator, Jack Balkin, solved the problem of reconciling originalism with free-hand judicial policymaking, with the “brilliant” though preposterous assertion that the Framers intended free-hand judicial policymaking.

Reader Discussion

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on March 26, 2012 at 22:12:01 pm

I'm not the only one who writes a page, while my mind holds a chapter, with footnotes.

Which part is law, the page or the chapter?

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Eric Hodgdon
on March 26, 2012 at 22:59:47 pm

"There is no good reason why any policy judgment made by human beings in the past should prevail over a contrary judgment made democratically in the present."

How about "There is no good reason why any Supreme Court Decision made by human beings in the past should prevail over a contrary judgment made by another court in the present."

Originalism and stare decisis sprout from the same stalk, and have similar rationales. President Kennedy would occasionally paraphrase G.K. Chesterton, the the effect of "Don't take down a fence until you know why it was put up." Chesterton's quote was actually more detailed:

"There exists in such a case a certain institution or law; let us say, for the sake of simplicity, a fence or a gate erected across a road. The more modern type of reformer goes gaily up to it and says 'I don't see the use of this; let us clear it away.' To which the more intelligent type of reformer will do well to answer: 'If you don't see the the use of it, I certainly won't let you clear it away. Go away and think. then when you can come back and tell me that you do see the use of it, I may allow you to destroy it."

The founders left us a Constitution that they did see the use of . Their experiences with government excesses are remote to our own, and the thought, blood and treasure that informed their drafting of the Constitution deserves the benefit of the doubt that the details of the document were well-considered. Perhaps their experiences provided them with a regard for freedom of speech, or religion, or the right to bear arms that is lacking in more complacent generations, but which are just as valid even for want of recognition. Making the Constitution difficult to amend enhances the likelihood that changes to it are likewise well-considered. The processes of democracy, as with any virtuous social institution, require discipline. If nothing else, observing Constitutional processes encourages such discipline when tinkering with the values of our republic.

To thoroughly analyze Professor Graglia's position one must ask the purpose of a written Constitution in the first place. Why have written law at all? I submit that that the answer to this question will suggest that respect for the document produced by the founders is not so much a matter of homage as of wisdom.

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on March 28, 2012 at 04:10:16 am

I've read most of Saul Cornell's
'The People's Constitution vs. The Lawyer's Constitution...' today.

He makes a good case for 'Who decides how Our Constitution is carried out.' Originalism seems to say, 'the spoils go to the victor,' but this can not be. One side or any other side did not win, the People won - all of us. Recreating original intent must include every voice from back then to be a valid theory. The entire country was involved in the making of the Constitution, because we share equally in every thing we do or have done.

We all carry joy for each good and burden for each wrong. This is our way, is it not? We are one, United, together, Indivisible, forever......because it was decided 225 years ago. They decided then, and all who came before us also decided for what we have now.

We can't escape this history, we can only proceed to where no one has gone first.

Our Constitution was not written by those who wrote it, it was written by all of us - then and now !

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Eric Hodgdon
on May 01, 2012 at 19:43:54 pm

That's very true, Steve. The title was meant to be somewhat proavcvtioe, but the larger point is that students (whatever their politics) tend to adopt legal theories that tend to reach legal conclusions that they already believe in as moral and policy conclusions. Originalism is a good example because it is an overarching theory and is unrelated to pre-law school moral/policy views (unlike, for instance, the neoclassical microeconomics that law and econ types apply), but even non-originalist conservatives tend to reach legal conclusions that closely match their preexisting moral/policy conclusions even though the legal reasoning that leads to the legal conclusions is ostensibly independent of the moral/policy reasoning that led to the moral/policy conclusions. Again, law and econ isn't such a great example, because law and econ types generally believe that the criterion for legal argument should be the same as the criterion for moral/policy argument i.e. economic efficiency and social utility and so it isn't so noteworthy that their legal views tend to align with their policy views; but perhaps I'm just being an apologist for law and economics!I do think that the originalism example is more similar to most legal theories than the law and econ example is: most law students, professors, lawyers, and judges do not believe that their criteria for legal decisionmaking are identical to their criteria for moral reasoning. And the aim of the major conservative legal movements of the last half-century (other than law and economics) has been to affirm that a person's personal moral/policy views are not proper inputs into his legal conclusions (e.g., originalism, judicial restraint, strict constructionism, textualism). (And this was true of liberal legal movements during the Lochner era.)

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on May 01, 2012 at 20:21:47 pm

While legal theories might not have a *logical* retloian to policy preferences, they clearly have a *causal* retloian to them. People at least tend to adopt legal theories that tell them their policy preferences are permissible, or, in some instances, abandon policy preferences their legal theories tell them are impermissible. (I suspect the latter is rather less common, but it probably does happen.)But this tells us nothing, for any particular issue, about which side of the policy debate is better aligned with reality, logic, reason, whatever. Perhaps originalism is a stupid rigidity, which nobody would adopt if it didn't help them stand athwart history, yelling Stop! .Then again, maybe living constitutionalism is a tacit conspiracy to abandon the rule of law, because we happen by historical happenstance to have a Constitution which actually DOES mean things that are highly inconvenient to people with progressive policy preferences, not having been written by people who shared those preferences.Either way, I really don't see the utility in arguing the matter on this level, rather than directly arguing the merits of originalism vs living constitutionalism. Either it's possible for sweet reason to triumph over irrationality and prior preferences, in which case we ought to stick to it, or it's not possible, in which case we may as well abandon reason, and come to blows.So, stop diagnosing the people you disagree with, and either reason with them, or start making arrangements for a trial by combat. Anything less is beneath a species which is capable of, though it far too often doesn't bother with, rational thought.

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on June 09, 2012 at 03:21:08 am

I know you're just noting tecnidnees, but as a mildly conservative non-originalist, I'll just note that HLS has some great conservative types on the faculty who are not originalists. Examples include Goldsmith, Fried, and Vermeule. Also, most serious law and econ types (e.g., Eric Posner) are not originalists.

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on June 09, 2012 at 07:47:08 am

,Gentlemen,There is no point in arguing with a ltesift ideologue. Such arguments boil down to "government can solve the problem" vs. "government is the problem." You can point to a thousand public failures (public education, public housing, public buses, and public toilets) but that won't convince a true believer that public health care won't work. We need to send our message to the middle where elections are won and lost. And Morph, please don't come back with a list of public successes. I don't have the time to instruct you in the efficiencies of the free market versus public initiatives. If it's not self-evident that what government does best with our money is grow more government, I can't help you. If you think I'm fixed in my position and unmovable, you're right. I believe in limited government, as do my conservative colleagues. Period. End of story.What really bothers me about the election results is the loss of public virtue. On the one hand we have those who think government owes them something. That's the clear sign of a corrupted body politic. And on the other we have an ignorant populace that has bought into something that to a clear mind is nothing more than slick advertising. Who is the president elect? We don't know, and neither do his supporters. The warning signs are not good, but until the man actually starts making decisions, we won't know.Clearly, at least to my mind, we need to make the case that a self-reliant, responsible, and independent people is more desirable than a dependent population. I don't know how much more simple I can make it. Every decision we allow government to make for us, every dollar we send to Washington, and every prerogative that we surrender as individuals further erodes our liberties. We need to make the case that the only way we can lose our republic is by surrendering it. And we are perilously close to doing just that.Look across the Atlantic. The nation-states of Europe have surrendered sovereignty to an unelected and unaccountable bureaucracy. Europe has crossed the Rubicon. There is no mechanism in place to regain lost sovereignty. And it happened because the people drank a very powerful sedative: socialism. It has turned the entire population into somnabulists. But it's no less than a corrupted body politic deserves. Why is it so seldom said that those who would live off the hard work of others are the greedy ones? Only, I guess, because class warfare is such an easy game to play. Demagogues are skilled at playing on envy.The more I ruminate on the loss of public virtue, the more disturbed I am by current events. If we travel the road of socialism, we will prove indeed that we are the lesser sons of better men. I still think we have time to stop the trend, but just barely. I ask again, how do we restore public virtue?

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on June 09, 2012 at 13:30:52 pm

"You and I are told increasingly that we have to csoohe between a left or right, but I would like to suggest that there is no such thing as a left or right. There is only an up or down up to a man's age-old dream, the ultimate in individual freedom consistent with law and order or down to the ant heap totalitarianism, and regardless of their sincerity, their humanitarian motives, those who would trade our freedom for security have embarked on this downward course."I couldn't agree more, and a couple of years ago I created a circular political spectrum chart that illustrates this up/down principle. By bending the line into a circle, it shows that the extremes of either end of the traditional Left/Right spectrum end up in the same place: serfdom. When viewed this way, those of us in center field (rather than being just "unprincipled" moderates on a fence that some call "wishy-washy"), are actually holding the high ground. The chart is , and I would love to discuss it.The real political core of America is, and always has been, in the middle. Both wings of the Incumbrepublocrat Party have done mayhem to their majority of moderates in order to cobble together a working majority for elections. This is where the multiparty parliamentary system has the advantage. They can retain their principles and create their governing coalitions after their elections. I am willing to try to recapture the Republican Party, but I think it needs to be drug to the center, where it could attract Truman and Reagan Democrats and other fiscal/constitutional conservatives; not to the Right. Dave

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on June 09, 2012 at 14:46:53 pm

Lionell, one of the primary pontis I have been trying to drive home is that I don't want to deliver you a platform and have you decide whether you like it or not, I want you and me and everyone else to bring our own ideas of what is important to the table.I'll grant you that "faith" is a vague term. Perhaps not vague so much as mutable: it means different things to me than it does to anyone else."Family" is clearer, i think. The fundamental unit of society is the family. In every culture where that has been eliminated, decay and entropy have set in rapidly. Strong families grow a strong nation. If you want to see the results of the breakdown of the family unit, look at the ghettos. "Country" can also vary, but I will say this: if you are not committed to the well-being of our collective home, you have no business running it. That goes for those voting and those being elected. I am not a fan of blind patriotism (or blind anything for that matter), but at some level you need to be invested in the success of the nation, even if only out of enlightened self-interest.And as far as what "works" means, if you have to ask what a successful society is, then this whole conversation is probably for naught. The principles we seek are the ones that will preserve the rights and facilitate the goals outlined in the founding documents of our nation, the Declaration and Constitution. It all comes back to that.

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Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.