The Conservative Sensibility Page 23

  Here there is something useful to be gleaned from an unlikely source. Linguistic philosophy, the high tide of which coincided with this author’s two years at Oxford, was often arid, and sterile regarding social and political questions. It had and has, however, something to say about today’s skirmishing on the contested ground concerning originalism, textualism, and other rivalrous schools of thought about how the Constitution should be construed. A leading practitioner of linguistic philosophy, Oxford’s J. L. Austin, stressed the concept of “speech acts” and argued that any speech act—including, of course, written speech—is part of a performative activity: It involves persuading, promising, requesting, warning, exhorting, and so on.50 The meaning of a speech act depends on the speaker’s intention, and on the nature of the audience with which the speaker is communicating. The relevance of this to constitutional reasoning is this: It is fallacious to think that the meaning of the document’s text can be understood without examining the intentions of its authors. Some will say: Such an examination is difficult and problematic because it must descend into speculations. To which the proper rejoinder is: We have no choice because meaning and intention are braided.

  Three things follow from this. One is that Aristotle’s advice in the Nicomachean Ethics is particularly pertinent to construing the Constitution. He said that “precision is not to be sought for alike in all discussions, any more than in all the products of the crafts.” And: “It is the mark of an educated man to look for precision in each class of things just so far as the nature of the subject admits.”51 The second implication of the inseparability of meaning and intention is the importance of the fact that the intention of the Constitution’s Framers was to give institutional life to the premises and purposes of the Declaration of Independence. The third is that there is wisdom in Jack Balkin’s idea of “living originalism,” which is not, as some allege, an oxymoron.

  Balkin calls for fidelity to the original meaning of the Constitution’s text as this meaning is derived with reference to the rules, standards, and principles explicitly or implicitly in the text. The Constitution, he says, is basically “a plan for politics.” Its practical initial purpose was to ignite American politics. Its long-term purpose was, and remains, to make politics safe, meaning not dangerous to liberty. Balkin does not recommend just this or that doctrine of constitutional construction. Rather, he recommends “using all of the various modalities of interpretation: arguments from history, structure, ethos, consequences, and precedent.” Advocates of “originalism”—adhering to the original public meaning of the words of the text—should not simply favor what Balkin terms “the original expected application” of the text. Rather, they should discern and apply the Framers’ original intent to contemporary circumstances. Balkin terms this idea “living originalism”: “In every generation, We the People of the United States make the Constitution our own by calling upon its text and its principles and arguing about what they mean in our own time.” It took time, meaning historical learning, for the nation to come, a century after ratification of the Fourteenth Amendment’s affirmation of equal national citizenship, to the conclusion that this required equal rights for women. The flawed doctrine of “original expected applications” could not countenance this just outcome. The fact that the Framers adopted “general and abstract” concepts meant that subsequent generations would have no alternative to working out the scope and application of the abstractions to changing concrete circumstances. Hence, as Balkin says, the Constitution commits the country to “the tradition of continuous arguments.”52

  This guarantees the perpetual frustration of all those who hanker for a theory of constitutional construction that will deliver the serenity of finality. It also consigns all generations to endless arguing. The fact that ratification of the Constitution meant a contentious American future was, Balkin notes, immediately demonstrated by the heated argument that erupted—and provoked the emergence of political parties, which the Framers neither desired nor anticipated—about whether the Constitution’s enumeration of Congress’ powers authorized Congress to charter a national bank. In this argument, Alexander Hamilton and James Madison, who wrote eighty of the eighty-five Federalist Papers, were at daggers drawn. Americans who find perpetual arguing stressful or otherwise unsatisfying should consider finding another country. It is not quite right to say, as Justice Antonin Scalia did, that the Constitution’s “whole purpose is to prevent change—to embed certain rights in such a manner that future generations cannot readily take them away.”53 Rather, the government’s Madisonian architecture was designed to refine and elevate opinion so that future generations would not want to take away important rights. The desires that majorities have over time are probably going to be satisfied, so attention must be paid to the shaping and moderating of desires.

  And sometimes majorities must be disregarded. Professor Alexander Bickel of the Yale Law School, who was a clerk for Justice Felix Frankfurter when the court was considering the Brown school desegregation case, later said that examination of the legislative process that produced the Fourteenth Amendment “easily leads” to the “obvious conclusion” that the amendment “as originally understood, was meant to apply neither to jury service, nor suffrage, nor anti-miscegenation statutes, nor [school] segregation.” But Michael W. McConnell, former judge on the US Court of Appeals for the Tenth Circuit and currently professor at Stanford Law School, has made an especially sinewy argument for the proposition that the Brown decision was not merely compatible with, but was entailed by, the Fourteenth Amendment. McConnell undertakes to do what the Warren court “made no pretense” of doing, to demonstrate that Brown “was an authentic translation of what the Fourteenth Amendment meant to those who drafted and ratified it.”54 He acknowledges that “school desegregation was deeply unpopular among whites, in both North and South, and school segregation was very commonly practiced.” And he concedes that “constitutional amendments generally reflect, rather than contradict, popular opinion.” He, however, martials powerful evidence that the congressional authors who passed, and the state legislators who ratified, the amendment were acting in the immediate aftermath of the Civil War carnage and that a majority of them “considered entrenchment of their principles more important than pleasing constituents.”55

  So let us stipulate that learned people of goodwill can disagree about this. And let us try a thought experiment: Suppose Bickel was correct and McConnell was mistaken. Does this mean that in 1954 there was no way to responsibly find in the Constitution’s text a legal (as distinct from policy) reason for finding school segregation unconstitutional? No, it means only this: Although originalism, as McConnell and most other self-described originalists practice it, is a useful and disciplining starting point when construing the Constitution, it is insufficient.

  Many critics, representing many schools of thought about how the Constitution should be construed, conclude that the reasoning of Brown is weak and strained, which it is, and therefore that the result is dubious. This is, however, operating backward. At the risk of seeming cavalier, herewith a modest proposal: The threshold question when evaluating any particular mode of construing the Constitution is whether the mode would dictate declaring public school segregation unconstitutional. No acceptable theory for construing the Constitution can invalidate the court’s conclusion in Brown; the conclusion invalidates any theory that rejects it. If a theory of constitutional interpretation cannot find in the document’s text, when the text is construed to serve the document’s purpose of framing a government that secures natural rights, grounds for striking down racial segregation in schools, a practice facially inimical to equal enjoyment of the blessings of liberty, then this theory must be discarded. The phrase “the blessings of liberty” is of course from the Constitution’s Preamble. But the Preamble is not a mere decorative filigree on the Constitution. It is a statement of the objectives of all that follows.

  What follows the Preamble, the Constitution, “read as a whole,” r
equires acknowledging various values that are of equal constitutional dignity. Let former Supreme Court Justice David Souter explain this. In his 2010 commencement speech at Harvard, a year after retiring from the court, Souter offered a lucid and subtle argument for distinguishing in constitutional law between judicial activism and the activity of judging. He did so by demonstrating that construing the Constitution is rarely merely a matter of a “fair reading” of the document’s text with reference to simple facts.56

  To see what constitutional reasoning rarely is, Souter said, suppose one of the twenty-one-year-old graduates in his Harvard audience were to claim a place on the ballot for a US Senate seat being contested that year. The claim could be easily disposed of by confirming the claimant’s age, noting the constitutional provision that a senator must be at least thirty years old, and interpreting this as disqualifying from ballot access someone who, if elected, would not be qualified to serve. Although the Constitution’s provision stipulating the age requirement for senators says nothing about ballot access, no one would charge that the ruling involved judicial lawmaking.57

  Of course a case such as this would not get to the Supreme Court precisely because it does not involve what Souter called the Constitution’s “good share” of “deliberately open-ended guarantees,” such as the rights to due process of law, equal protection of the law, and freedom from unreasonable searches. Such provisions, Souter said, are unlike the age requirement for senators in that “they call for more elaborate reasoning to show why very general language applies in some specific cases but not in others, and over time the various examples turn into rules that the Constitution does not mention.” These are judge-made rules but, Souter argues, rules that judges cannot help but make. They “turn into” rules over time, by the process of coping with cases. This slow creation of rules comes about for three reasons. First, the Constitution must have a lot of general language “in order to be useful over long stretches of time.” Second, the Constitution “contains values that may well exist in tension with each other, not in harmony.” The third and most complex reason is that the facts that determine whether a constitutional provision is pertinent may be quite unlike facts like a person’s age. What Souter called “constitutional facts” often will require judges to decide “the meaning that the facts may bear.” He illustrated this with reference to two cases, one from 1971, the other from 1954.58

  The 1971 “Pentagon Papers” case illustrates, Souter said, that the Constitution is not a “simple contract” because “its language grants and guarantees many good things” that “compete with each other and can never all be realized, all together, all at once.” With the Vietnam War raging and passions at a boil in the summer of 1971, the New York Times and the Washington Post obtained classified documents—the Pentagon Papers—prepared by government officials and pertaining to the past conduct of the war. The government sought a court order to prevent the newspapers from publishing the documents. The government made what Souter called “the most extreme claim known to the constitutional doctrines of freedom to speak and publish.” It claimed the power to exercise “prior restraint”—the power not merely to punish unauthorized publication but to prevent publication. At issue were fourteen words of the First Amendment: “Congress shall make no law…abridging the freedom of speech, or of the press.” Representing the government was Solicitor General Erwin Griswold, who had been dean of Harvard Law School for twenty-one years. During oral argument in the Supreme Court, Griswold’s most interesting interlocutor was Justice Hugo Black, who was not unreasonably called a “First Amendment absolutist.” He believed that the amendment’s words should be read literally: There can be no legitimate abridgement of the freedom of speech or press. “And in fairness to him,” Souter said, “one must say that on their face the First Amendment clauses seem as clear as the requirement for 30-year old senators, and that no guarantee of the Bill of Rights is more absolute in form.” But, Souter said, when construing the Constitution, its words are frequently freighted with meaning and importance that is not “on their face.”59

  Black told Griswold that permitting prior restraint of publication would make judges into censors. Griswold argued that publication of the purloined documents would threaten lives, jeopardize attempts to end the war through diplomacy, and complicate future attempts of the government to negotiate with foreign governments that would question America’s ability to keep secrets. He said that there was no alternative to prior restraint. When Black said the First Amendment was the alternative, Griswold replied: “The problem in this case is the construction of the First Amendment. Now Mr. Justice, your construction of that is well-known, and I certainly respect it. You say that no law means no law, and that should be obvious. I can only say, Mr. Justice, that to me it is equally obvious that ‘no law’ does not mean ‘no law,’ and I would seek to persuade the Court that that is true. As Chief Justice Marshall said, so long ago, it is a Constitution we are interpreting.”60 A Constitution. All of it.

  Souter correctly told his Harvard audience that although the government lost the case, and the Pentagon Papers were published, Griswold won his argument with Black. Griswold won because in its ruling the court took his point—and Marshall’s—that when construing a portion of the Constitution, the totality of the Constitution can come into play and must be considered. Souter said that in addition to guaranteeing freedom of speech and the press against government abridgements, the Constitution also grants to the government authority and responsibility, and hence the appropriate power, to provide for the nation’s security and to enable the president to conduct foreign policy and command the military. In its decision, the court did not say that the words “no law” allowed no exceptions. Rather, the court recognized that in some circumstances the exigencies of governing, such as those to which Griswold referred, could justify prior restraint. But the court held that the government had not performed the daunting task of demonstrating that the facts in this case justified prior restraint. As examples of such potential facts, members of the court mentioned prior restraint to prevent something like publication of the details of the D-Day invasion plans, or to block publication of something that might provoke a nuclear holocaust.

  Souter stressed that even a constitutional provision as facially absolute as the First Amendment—“a right as paramount as any fundamental right can be”—still “does not quite get to the point of an absolute guarantee.” This is so because “the Constitution has to be read as a whole, and when it is, other values crop up in potential conflict with an unfettered right to publish.” The Constitution’s most explicit terms “can create a conflict of approved values” and those terms “do not resolve that conflict when it arises.” Judges do, by the activity of judging. Which means by choosing: “The guarantee of the right to publish is unconditional in its terms, and in its terms the power of the government to govern is plenary.”61

  The problem in this case did not arise from any vagueness of constitutional language. The problem, Souter said, arose from the fact that the Constitution embodies the desire of the American people to have two excellent things, security and liberty, that are not always clearly and cleanly compatible. These “paired desires,” as Souter called them, can, and in this case did, clash. The court had to decide which desire had “the better claim, right here, right now.” Why must judges—appointed and accountable to no constituency—do this? Who else could? Souter noted that choices like the one the court made in this case “make up much of what we call law.” Does this mean that we have “judge-made law” and that judges are legislating? Not really, because the judges were largely confined and controlled, as legislators rarely if ever are, by their necessary focus on the Constitution’s text, which severely circumscribes their deliberations. Souter concluded this example by asking: “Can it be an act beyond the judicial power when a choice must be made and the Constitution has not made it in advance in so many words? You know my answer. So much for the notion that all of constitutional law li
es there in the Constitution waiting for a judge to read it fairly.”62

  The Pentagon Papers case illustrates what Souter called “the tensions within constitutional law.” The second case he considered illustrates what he calls “the subtlety of constitutional facts.”63

  In 1954, in Brown v. Board of Education of Topeka, the Supreme Court held, unanimously, that racial segregation imposed by law on public schools violated the Constitution’s guarantee of equal protection of the law. The Brown decision began the painfully protracted process of ending the doctrine that “separate but equal” provisions for the races could pass constitutional muster, a doctrine codified in 1896 in Plessy v. Ferguson, wherein the court found no violation in requiring the races to travel in separate but equal railroad cars.

  In Plessy, the court heard and rejected the argument that placing blacks in separate cars carried a stigma of inferiority. The court said that the law was on its face race-neutral, so if blacks felt that it imposed a badge of inferiority, that was simply a result of their thinking and not constitutionally germane. So separate but equal facilities did not violate the guarantee of equal protection of the laws. Fifty-eight years later, the court found that separate facilities in primary and secondary education, even if truly equal facilities (which they never were), violate that guarantee. This, said Souter, must have seemed mystifying, or an act of raw judicial willfulness, to people who think that constitutional judging merely involves “fair reading of [constitutional] language applied to facts objectively viewed.”64 The constitutional language did not change between 1896 and 1954. What did? Souter said it was something to do with those two dates.

  Members of the 1896 court remembered when slavery was established by law in many states. To those justices’ generation, Souter said, “the formal equality of an identical railroad car meant progress.” The justices sitting in 1954, however, “looked at enforced separation without the revolting background of slavery to make it look unexceptional by contrast.” The consequence was that the 1954 court “found a meaning in segregating the races” that the Plessy majority did not: “That meaning is not captured by descriptions of physically identical schools or physically identical railroad cars. The meaning of facts arises elsewhere, and its judicial perception turns on the experience of the judges, and on their ability to think from a point of view different from their own. Meaning comes from the capacity to see what is not in some simple, objective sense there on the printed page. And when the judges in 1954 read the record of enforced segregation it carried only one possible meaning: It expressed a judgment of inherent inferiority on the part of the minority race.”65