On Reading the Constitution

Laurence H. Tribe, Michael C. Dorf

• Publisher: Harvard University Press
• Year: 1993
• Print ISBN: 9780674636262, 9780674636255
• eBook ISBN: 9780674257191
• Topic: Politics & International Relations
• Subtopic: Law Theory & Practice
• Index: Politics & International Relations

Our Constitution speaks in general terms of "liberty" and "property," of the "privileges and immunities" of citizens, and of the "equal protection of the laws"—open-ended phrases that seem to invite readers to reflect in them their own visions and agendas. Yet, recognizing that the Constitution cannot be merely what its interpreters wish it to be, this volume's authors draw on literary and mathematical analogies to explore how the fundamental charter of American government should be construed today.

1

How Not to Read the Constitution

FROM ITS VERY CREATION, the Constitution was perceived as a document that sought to strike a delicate balance between, on the one hand, governmental power to accomplish the great ends of civil society and, on the other, individual liberty. As James Madison put it in The Federalist Papers, “[i]f men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself. A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions.”¹ Although Madison initially opposed the inclusion of a Bill of Rights in the Constitution, as his correspondence with Thomas Jefferson shows, he became convinced that judicially enforceable rights are among the necessary “auxiliary precautions” against tyranny.²

In the Constitution of the United States, men like Madison bequeathed to subsequent generations a framework for balancing liberty against power. However, it is only a framework; it is not a blueprint. Its Eighth Amendment prohibits the infliction of “cruel and unusual punishment,” but gives no examples of permissible or impermissible punishments. Article IV requires that “[t]he United States shall guarantee to every State in this Union a Republican Form of Government,” but attempts no definition of republican government. The Fourteenth Amendment proscribes state abridgments of the “privileges or immunities of citizens of the United States,” but contains no catalogue of privileges or immunities.

How then ought we to go about the task of finding concrete commandments in the Constitution’s majestically vague admonitions? If there is genuine controversy over how the Constitution should be read, certainly it cannot be because the disputants have access to different bodies of information. After all, they all have exactly the same text in front of them, and that text has exactly one history, however complex, however multifaceted. But of course different people believe different things about how that history bears on the enterprise of constitutional interpretation.

Thomas Grey of Stanford, in a wonderful essay entitled “The Constitution as Scripture,” builds on some earlier work by Sanford Levinson of Texas, Robert Burt of Yale, and the late Robert Cover of Yale.³ Grey asks provocatively whether some regard the history of the Constitution, both prior to its adoption and immediately thereafter, and even the history subsequent to that, as somehow a part of the Constitution—in much the same way that some theologians consider tradition, sacrament, and authoritative pronouncements to be part of the Bible. And he asks whether perhaps others regard the history, and certainly the post-adoption tradition and the long line of precedent, as standing entirely apart from the Constitution, shedding light on what it means but not becoming part of that meaning—in much the way that other theologians consider the words of the Bible to be the sole authoritative source of revelation, equally accessible to all who read it, in no need of the intervention of specialized interpreters and thus not to be mediated by any priestly class. What role ought history to play?

Perhaps the disputants agree on what counts as “the Constitution,” but simply approach the same body of textual and historical materials with different visions, different premises, and different convictions. But that assumption raises an obvious question: How are those visions, premises, and convictions relevant to how this brief text ought to be read? Is reading the text just a pretext for expressing the reader’s vision in the august, almost holy terms of constitutional law? Is the Constitution simply a mirror in which one sees what one wants to see?

The character of contemporary debate might appear to suggest as much. Liberals characteristically accuse conservatives of reading into the Constitution their desires to preserve wealth and privilege, and the prevailing distribution of both. Conservatives characteristically accuse liberals of reading into the Constitution their desires to redistribute wealth, to equalize the circumstances of the races and the sexes, to exclude religion from the public realm, and to protect personal privacy. How are we to understand such charges and countercharges?

Back to the Founding

It might help to begin at the beginning. One astute observer of language and law, James White of the University of Michigan English Department and the Michigan Law School, has noticed an important difference between the Declaration of Independence and the Constitution.⁴ The Declaration, he points out, is a proclamation by thirteen sovereign states at a moment of crisis. It is a hopeful cry. It is an attempt to justify revolution. It is addressed to the King of England, and even more significantly to the conscience of Europe. It is a call for assistance and support.

The Constitution makes a stark contrast. It is neither a justification nor a plea. It is a proclamation issued in the name of “We the People of the United States.” Its preamble declares a bold purpose: “to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our posterity.” It then proceeds to “ordain and establish this Constitution for the United States of America” by setting forth a distribution of powers and by declaring various limits on those powers.

That seems a supremely confident and courageous act—to create a nation through words: words that address no foreign prince or distant power, but the very entity called into being by the words themselves; words that address the government that they purport to constitute; words that speak to subsequent generations of citizens who will give life to that government in the years to come.

The idea that words can somehow infuse a government with structure, and impose limits on that structure—that language can directly power the ship of state and chart its course—has played an important role in what Americans, particularly in our early years but to some extent even today, have tended to think about the Constitution. As James Russell Lowell wrote in 1888, “[a]fter our Constitution got fairly into working order it really seemed as if we had invented a machine that would go of itself”⁵

Justice Oliver Wendell Holmes drew on a similar image, but had no similar illusions, when he chose his words in 1920 in the case of Missouri v. Holland.⁶ He wrote:

when we are dealing with words that also are a constituent act, like the Constitution of the United States, we must realize that they have called into life a being the development of which could not have been foreseen completely by the most gifted of its begetters. It was enough for them to . . . hope that they had created an organism; it has taken a century and has cost their successors much sweat and blood to prove that they created a nation.⁷

“The case before us,” Holmes went on, “must be considered in the light of our whole experience and not merely in that of what was said a hundred years ago. . . . We must consider what the country has become in deciding” what the Constitution means.⁸ Holmes had no doubt that the very meaning of the thing we call “the Constitution”—even though its words, as marks on parchment carefully preserved at the National Archives, remain unaltered—was a reality partly reconstructed by each generation of readers. And he had no doubt that that was as the Framers of the Constitution themselves originally intended. They were, after all, framing the Constitution, not painting its details. Why else call them the “Framers”?

How different an image that is from the originalist image suggested by Gary Wills in his book Inventing America.⁹ Wills writes that to understand the true meaning of a text, we must forget what we have learned from the events that transpired between the text’s creation and the present. Even taking Wills’s vision on its own terms, there is every reason to see a paradox in it, because many of those who wrote the text of the original Constitution or voted to approve it, or wrote or voted to approve some of its amendments, supposed that the meaning, at least of the more general terms being deployed, was inherently variable. They supposed that the examples likely to occur to them at the time of the creation would not be forever fixed into the meaning of the text itself. Thus, even supposing that what the Framers thought about the Constitution should be the touchstone of constitutional interpretation, it need not be the case that the Constitution’s broad language would have to be interpreted in such a way that it speaks only to issues that already existed two hundred years ago.

Another proponent of locating the ultimate interpretive authority in the Framers’ intent, Raoul Berger, has argued that the original intent of the Framers is “as good as written into the text” of the Constitution.¹⁰ That viewpoint became something of a manifesto for former Attorney General Meese, who often spoke and wrote of a “jurisprudence of original intent.”¹¹ But consider the practical difficulties of applying such a theory when, for example, Berger looks at the Fourteenth Amendment, a text proposed to the states by Congress and voted on by no fewer than thirty-seven state legislatures.¹² Berger purports to know that the original purpose of the Fourteenth Amendment was far less noble than some of us have come to believe; the primary intended beneficiaries of the Fourteenth Amendment, he tries to show, were racist white Republicans.¹³ And therefore, he says, giving the Fourteenth Amendment the meaning that the Supreme Court has given it in modern times is ahistorical and illegitimate.

Let us suppose that Berger’s history is correct—that one really could make that confident an assertion about something as fleeting and elusive as collective intent. In fact, suppose that the real purpose of those who wrote the Fourteenth Amendment was to deny equality to the freed slaves to whatever degree would prove politically possible. That is, suppose the Fourteenth Amendment was a palliative designed to preserve peace, but that the reason for not writing so racist a credo into the Constitution’s text was a sense that some of the Amendment’s support might not withstand such candor.

Even if this supposition were historically correct, and even if you believed that original intent should control constitutional interpretation, it still does not follow that it would be legitimate to read the Fourteenth Amendment to effect the hidden racist agenda. Why not? For one reason, because the Fourteenth Amendment became “part of th[e] Constitution” in accord with Article V—the provision of the Constitution that describes how amendments become law. They become law when they are ratified through a specified process by a certain number of states. There is nothing in Article V about ratifying the secret, hidden, and unenacted intentions, specific wishes, or concrete expectations of a group of people who may have been involved in the process of enacting a constitutional guarantee.

Constitutional commentators sometimes seem to forget that history serves to illuminate the text, but that only the text itself is law. Consider, for example, the Second Amendment, which reads: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” Unique among the provisions of the Constitution, the Second Amendment comes with its own minipreamble, setting forth its purpose: to foster a “well regulated Militia.” This purpose has little to do with individuals possessing weapons to be used against their neighbors; as a result, the Second Amendment has not been interpreted by the courts to prohibit regulation of private gun ownership.¹⁴ Nonetheless, in an essay provocatively titled “The Embarrassing Second Amendment,” Sanford Levinson of the University of Texas argues that because the enactment of the Second Amendment took place during an era that valued armed citizens as a civic republican bulwark against tyranny, it must be interpreted according to civic republican traditions.¹⁵ Levinson may well be right that the Second Amendment was enacted against a civic republican background that saw individual gun-ownership as part of the “right of the people to keep and bear Arms” that promotes a “well regulated Militia.” But the Second Amendment did not enact the background understanding. The only purpose it enacted is the one contained in its text, for only its words are law. And in modern circumstances, those words most plausibly may be read to preserve a power of the state militias against abolition by the federal government, not the asserted right of individuals to possess all manner of lethal weapons.

Thus, the constitutional text itself seems to preclude an interpretive method that relies too heavily upon history alone. But even if the originalist paradigm were not internally inconsistent, there would be good reason to question its basic assumptions. Dean Paul Brest of Stanford, in an article called “The Misconceived Quest for the Original Understanding,” suggests that once we take into account the elaborate evolution of constitutional doctrine and precedent, we cannot avoid seeing the original document and its history recede as a smaller and smaller object into a distant past.¹⁶ He says it is “rather like having a remote ancestor who came over on the Mayflower.”¹⁷ Of course, Brest is offering only a description of the way things are. Even if the description is accurate, some might say it is not a very good prescription of the way things ought to be. Perhaps the Court, and commentators, should return more often to the Mayflower and pay somewhat less attention to all the accumulated barnacles. But as with the sailing ship, this Mayflower is venerated less because of the vessel it was than because of the voyage it began. Return to the source, and we find an invitation not to linger too obsessively in the past.

Consider, for example, those of the Framers’ generation who thought that the very common practice of disqualifying the clergy from public office was consistent with the Constitution. They included Thomas Jefferson, who thought that the clergy ought to be excluded from legislatures. Yet mightn’t the very Framers who believed the practice to be constitutional in their day nonetheless have been surprised by a suggestion that clergy disqualification...

Table of contents

• Cover
• Title
• Copyright
• Acknowledgments
• Contents
• Introduction
• 1 How Not to Read the Constitution
• 2 Structuring Constitutional Conversations
• 3 Judicial Value Choice in the Definition of Rights
• 4 Seeking Guidance from Other Disciplines: Law, Literature, and Mathematics
• 5 Reconstructing the Constitution as a Reader’s Guide
• Notes
• Index of Cases
• General Index