HOME / ABOUT THE FEC / COMMISSIONERS / FORMER COMMISSIONERS / COMMISSIONER BRADLEY A. SMITH / SPEECHES AND ARTICLES
The Robert E. Henderson Constitution Day Lecture:
Constitutional Values and Constitutional Interpretation
By
Bradley A. Smith
John M. Ashbrook Center for Public
Affairs
September 17, 2001
On September 10, 2001 most Americans went to bed under the placid assumption that,
despite a minor economic downturn, our nations main political concerns in the
morning would be battles over arcane budget bills, campaign speech regulations, or
possibly a patients Bill of Rights.
On September 11 we suddenly found ourselves faced with a whole new set of issues,
issues so important that they at once made us forget about partisan legislative battles of
summer, while at the same time making many of us vaguely embarrassed for the extreme
rhetoric and emotion that may have characterized them.
Indeed, we now find ourselves facing nothing less than the momentous issue of war,
at once the most important and terrifying decision a nation as powerful as ours can make.
Even as the events of September 11 dominate our thoughts, it is appropriate, and
important, that we gather here tonight to celebrate Constitution Day. It is important for one because the disruption of
our normal lives is, in and of itself, a part of what our attackers hope to accomplish. As President Bush emphasized in his comments on
the evening of the attack, [t]he functions of our government continue without
interruption
and the American economy will be open for business as well. In short, even as we respond to the attack, we
must carry on with daily life. Indeed, even
as we mourn their loss, we owe it to those who died not to let the terrorists win by
making those of us who live cower in fear.
But it is also important that we gather here tonight because it is in troubled
times such as these that we ought to give special consideration the blessings of our
Constitution. Each Fourth of July we
celebrate our nations Declaration of Independence with fireworks, parades, and
celebrations. It is appropriate that we do
so, for perhaps no document, certainly no secular document, has inspired so many people
around the world, and no nation has done as much for the cause of human freedom as that
which was born in July of 1776. But the
Declaration, while proclaiming a new nation and its aspirations, did not actually create a
system for governing that new nation. And we
know that the first system that was created for the nation, the Articles of Confederation,
was considered a failure. It was the
Constitution that established what has been a permanent governing framework for the United
States. It is through our system of
Constitutional governance that we seek to meet the aspirations of the Declaration. Yet except for a few gatherings such as this,
Constitution Day passes unnoticed by Americans. There
are no parades, no fireworks, no picnics, and no public holiday to commemorate the
September 17, 1787 signing of the Constitution. But
it is this document that has provided the basic governing structure of our nation as we
have risen from an underdeveloped backwater of civilization to become the driving force of
the world economy and, even more importantly, a beacon of freedom the world over. It is a durable document that has nevertheless
seen us through prosperity and recession, through two world wars, through the burning of
our capital in the War of 1812, and through a momentous Civil War. And it is this document, whose stated purposes
include to provide for the common defense, that will be called on to guide our
public officials, and indeed our nation, through the coming times. How we interpret the Constitution, especially in
times of difficulty such as these, may radically affect whether or not we continue to
achieve another of the stated goals of the document: to secure the Blessings of
Liberty to ourselves and our Posterity.
I wish to suggest that the best way to
begin any exercise of constitutional interpretation is through a simple reading of the
text. If this seems obvious, it is only
because most of you have not yet been schooled in the law, for this style of
interpretation, sometimes called formalism, is widely scorned in legal
circles.
In 1962, the noted Constitutional theorist Alexander Bickel wrote, Judicial
review is the principled process of enunciating and applying certain enduring values of
our society. Bickel was writing during the high point of judicial prestige and
activism midway between the Warren Courts 1954 decision in Brown v. Board of Education, and Richard
Nixons 1969 appointment of Warren Burger as Chief Justice. The former convinced many Americans of the
appropriateness of looking to the judiciary rather than to the elective branches to take
positive steps to cure societal problems; the latter event marked the beginning of a slow
turning away from the activism of the Warren Court. Bickels
attitude reflected the times: an enormous confidence that the judiciary could
indeed was uniquely qualified to discern the great and enduring values of American
society and apply them to public policy through its interpretation of the Constitution.
Now of course the Constitution must be interpreted.
It is a brief document compared, for example, to Volume 11 of the Code of Federal
Regulations, which covers regulations promulgated by the Federal Election Commission, and
it cannot possibly answer with specificity every precise question that arises under it. But to many observers, it seemed that the Warren
Court specifically, legal academia in particular, and the judiciary in general had by the
mid-1960s gone far beyond mere interpretation of the document to a wholesale, rather
random substitution of the values of individual judges for the actual language and
structure of the Constitution. The
neutral priniciples by which commentators such as Bickel argued the courts
could inject values into the Constitution and decide constitutional cases were, for
observers such as Professor and later Judge Robert Bork, anything but neutral. These critics argued that the judicial
interposition of values in judicial review was inconsistent with both democratic rule and
constitutional government, because unelected judges were, in fact, simply substituting
their personal values for those of popularly elected legislatures and the language of the
Constitution itself. Throughout the 1970s and
1980s a battle raged, in the academy, in the courts, and in the political realm, over
whether it was possible for judges to consider values in judicial review without the
Constitution itself becoming a meaningless document to be manipulated by the judges
charged with enforcing it. The battle perhaps
reached its apogee with the 1987 nomination, and Senate defeat, of Judge Bork for a seat
on the Supreme Court. After that defeat Judge
Bork resigned his seat on the Court of Appeals and went on to argue that judicial review
should be abolished entirely. Meanwhile,
perhaps because the leading scholars of time had said all they had to say on the subject,
the debate over whether judges should look to values when interpreting the Constitution
receded into the background. Even the
conservatives who once argued for a very narrow scope to judicial review seemed more
comfortable with the notion of values being injected into legal decisions, if only because
the rejection of the Bork nomination seemed to have settled the question as a political
matter for the time being, or perhaps because a Supreme Court with more conservative
values seemed to make the question less pressing. By
the early 1990s the debate had shifted from whether judges should consider values in
interpreting the Constitution, back to how they should determine which values should
provide content to Constitutional law.
Unlike Judge Bork and some other
conservatives, I believe strongly in judicial review that is, in the power of the
judiciary to declare some government actions to be unconstitutional. Were the courts to surrender this power, the only
restraints on the actions of the legislative and executive branches would be the
self-restraint of those branches themselves. The
system established by the founders, with three co-equal branches of government serving as
checks on each other, would essentially become a two-legged stool. The Constitutional limits on executive and
legislative power, both through the Constitutions enumerated powers and its
protection of enumerated and unenumerated rights and by unenumerated rights I am
referring primarily to the Ninth Amendment would be subjected only to the
constraints of a democratic electoral process, and the electorate would be free to ignore
the Constitution at any time. If that is to
be the case, one might ask: Why have a Constitution at all? So my goal is not to disparage judicial review,
but to return our focus to the question of when values should come into play in
Constitutional interpretation, whether the interpreter is a judge, other government
official, or a simple citizen.
In arguing for a more formalist approach to interpretation, I do not suggest that
the text holds plains answers to every constitutional question. There are many times when the language of the
Constitution is sufficiently imprecise so as to allow for considerable interpretation, and
in so doing we might look to values that seem inherent in the Constitutions
structure or language. And there are some
issues though fewer than many think - that may be far enough removed from any
direct language of the Constitution that the proper constitutional analysis can only come
from extrapolating values from the Constitution, or even injecting
contemporary values into it. But far too
often the issue of values seems to be raised first, and this leads to the substitution of
constitutional values which are too often merely the values of the
judge or commentator himself - for the Constitution itself.
What I wish to suggest is not that values have no role in interpretation, but
rather that values should come into play only after the formal language and structure of
the Constitution have failed to provide a definitive answer. The advantage of formalism, even when it does not
provide the definitive answer to a question, is that it narrows the range of
possibilities, thus constraining judges from substituting their values for the commands of
the Constitution itself.
It is popular in some circles to
suggest that the Constitution is a living document, that it changes with the
times to reflect our contemporary understanding of the goals set forth in the original
language. But unlike the Declaration of
Independence or the Gettyburg Address, for example, the Constitution is not a statement
goals, of aspirations or principles. Such
aspirational documents deal with broad, sweeping principles: for example, life,
liberty, and the pursuit of happiness; or government of the people, by the
people, for the people. Though
inspiring, these sweeping declarations of values can, nonetheless, mean radically
different things to different people.
The Constitution is different. The men
who gathered in Philadelphia in 1787 were not there for the grandiose task of proclaiming
a new nation; they were not attempting to put into words thoughts and ideas to inspire
their countrymen to meet the burdens of war. They
were not old, not most of them, anyway, but nor were they romantic. Young revolutionary leaders such as Hamilton and
Madison had grown into middle-aged politicians, and they looked upon their task at the
Constitutional Convention unsentimentally. Madisons
Federalist Number 10, explaining how the new Constitution would avoid the evils of
faction, is only the most frank acknowledgement that they viewed their job as being the
creation of a stable government capable of overcoming the worst instincts of human nature
and fulfilling the promise of the revolution. The
Convention never specifically debated any conception of the good life, and such
conceptions are largely taken for granted, rather than argued, in the ratification
debates. These were practical men performing
the concrete task of establishing a functioning government.
The Constitution, then, is the
organizing document for the federal government, and as such it is a procedural document. In language that is both concise and relatively
precise, it establishes a government with three independent branches, explains how each
branch is to be selected, and states the powers accruing to each particular branch. In short, it is a blueprint for government. It does not declare itself in favor of any
particular values, other than a more perfect union, a sweeping phrase that
literally encompasses anything the reader wants it to.
To put it another way, the Constitution specifically avoids declaring its values
explicitly, instead taking the position that, whatever values we may seek to pursue, here
is the means by which we have agreed to pursue them.
Battles over values are purposely relegated to the background. The Constitution can be summed up thusly:
Here is how our government is constituted, and here are the powers it is given or
expressly denied." In most cases, no
appeal to values is necessary to interpret the document or the powers that it gives or
denies to the government.
This is not to say that values were not important to the Founders. The Federalist Papers, the insightful political
tracts written by Hamilton, Madison, and Jay in support of the adoption of the
Constitution, regularly defend the Constitution as the best means to fulfill the values
its critics brought to the debate. Without
doubt the government created by the document reflects certain values, including suspicion
of government power, respect for private property and the sanctity of contracts, fear of
domination by either an inherited nobility or the mob.
Nevertheless, the authors did not argue that the Constitution proclaimed values. Rather, they argued that the specific provisions
of the Constitution were the best means to the various ends, or values, of its critics. Once we recognize that the Constitution is not an
aspirational document or statement of principles, but rather that it is more akin to a
road map, an instruction manual, or a blueprint reminding us of how we have agreed to
govern ourselves in pursuit of whatever we deem valuable, the range of possible
interpretations of its language is sharply constrained.
In many ways, we can compare the Constitution to an architects plans for a
building to keep this mundane, let us say the headquarters for a Mexican food
restaurant chain. The architects plans
for the building will reflect many values. The
architect will draw up his plans with the intent that the building be able to bear certain
loads; that it have a certain amount of working space; that it have fine corner offices
for high ranking executives, and a façade that gives it a faintly Southwestern appeal,
even though the building may be located far from the southwest. The architect may have to balance the desire for a
large multi-purpose room with the need for individual office space; cost with quality, and
so on. These various goals will reflect
certain practical necessities, but also various values of the corporation. Does the company value large open spaces and
physical appearance? Put in an attractive
atrium. Does it value thrift? Reduce luxurious touches, or cut down the size of
individual offices. Does it value employee
comraderie? Create large break areas or add a
fitness room. And so on it will go. In the end, the architects plans will
reflect these various values, often making trade-offs between them. The builder will later be called on to interpret
these plans, and he may be called on to correct workmen who are not following the plans,
but doing so will only rarely, if ever, require him to inquire into the values behind the
plans.
Constitutional interpretation is not so
mechanical as reading a blueprint, but it is not so different as some would like it to be. The preamble to the document hints at goals of the
architect, but in such broad terms as to be almost meaningless Justice;
Tranquility; the Blessings of Liberty. But it is not usually necessary to appeal to these
vaguely stated values in order to understand and to properly interpret the Constitution.
Lets start with a simple example. Article I, Section 4 of the Constitution provides
in part that Congress shall assemble at least once in every year. First, note the rather pedestrian, bureaucratic
nature of the provision. The phrase
Congress shall assemble at least once in every year is not calculated to
inspire men to risk their lives in battle, or to serve as evidence submitted as justify
ones actions to a candid world, and one will not find such bland phrases
in the Gettysburg Address or the Declaration of Independence. Even this dull provision, however, might be
subject to interpretation: Does it mean that Congress shall meet at least once each
calendar year? Or that Congress cannot let
more than 365 consecutive pass without meeting? I
suppose one could debate this, but I doubt that even our most creative constitutional
scholars could interpret this section to mean that Congress may meet just once every two
years. Thus the plain, formal language of the
Constitution goes far toward answering the question.
Certainly this should be our starting point for discussion, rather than beginning
with a discussion of values.
Now let's look at a tougher case. The
Second Amendment states clearly, the right of the people to keep and bear Arms,
shall not be infringed. This is a
rather straightforward statement that the government may not prohibit the people from
owning firearms. So why is the Second
Amendment so controversial? The main reason
appears to be that it contains a justification clause: in its entirety, the
Amendment 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. Thus many of those whom, for policy reasons,
oppose the operative clause of the Second Amendment the right of the people
to keep and bear Arms - focus on the
alleged Constitutional values involved a well regulated Militia, being
necessary to the security of a free state, to argue that the operative clause is
either limited or extinguished. If the
alleged constitutional values are no longer served, goes the argument, then perhaps the
right no longer exists.
Now while the Second Amendment is the only part to the Bill of Rights to contain a
justification clause, Professor Eugene Volokh of UCLA has demonstrated that such clauses
were extremely common in the constitutions and bills of rights adopted in the states
around the time that the U.S. Constitution was adopted.
Indeed, Professor Volokh has uncovered literally dozens such examples.[1] Thus no great portent should be given to the
appearance of a justification clause in the Second Amendment. More importantly, the Amendment does not say
so long as a militia is necessary the right to bear arms shall not be
infringed. It says the right of the
people to keep and bear arms, shall not be infringed, period. Nor does it refer only to the right of the
militia to keep and bear arms. To put
it another way, the justification for a command is not the command itself. Those who passed and ratified the bill of rights
did not merely say that, Congress shall provide for a well regulated militia. They did not simply prohibit Congress from
interfering in the security of a free state.
Rather, they chose a very specific means to achieve their goal: the right of
the people to keep and bear Arms shall not be infringed. In a proper system of constitutional law, it is up
to the people, through their elected representatives, in the manner provided by the
Constitution, and not to the courts, to determine if the right is now obsolete, or too
broad to meet its justification, or otherwise no longer necessary.
It is not just in discussing the Second Amendment, with its justification clause,
that many attempt to substitute the alleged values of the Constitution for the
Constitution itself. Even where the Founders
did not elaborate on the values behind particular provisions, many seek to use alleged
constitutional values, which they are confident that they can detect, to supplant actual
constitutional language. Let us consider, for
example, the First Amendment, and my particular area of expertise, campaign finance law. Most scholars and judges now agree that limits on
campaign contributions and expenditures limits speech.
For example, a law limiting how much one may spend to publish newspapers would
directly limit the amount of speech. A law limiting what could be spent to operate a
broadcast station could be used to shut down such operations. Similarly, to limit campaign contributions and
expenditures limits political speech.
Those who favor restrictions on
campaign spending and giving, however, frequently invoke constitutional values
in support of the constitutionality of such limits. For
example, recently the actor William Baldwin, President of the Creative Coalition, a
Hollywood political group, explained the Coalition's support for restrictions on campaign
giving and spending in terms of values, rather than the actual language of the
Constitution. One of the goals
underpinning freedom of speech," he said, "is the belief that the more ideas are
available in the public arena, the more informed and vibrant society will be. He
then went on to argue that more regulation of political speech will give, the voices
of all Americans
a better chance to be heard.[2] Similarly, Burt Neuborne, a Professor at NYU
School of Law and formal Legal Director of the American Civil Liberties Union, recently
wrote in the Northwestern University Law Review that speech limitations can be justified
under the First Amendment if we will only give that Amendment a democracy-centered
reading and come to realize, as the professor has, that limits on some political
speech might be better for democracy.[3]
The First Amendment seems particularly prone to such substitution of values for
text. In his recent book Republic.Com,
Professor Cass Sunstein of the University of Chicago argues that we might want to require
web sites to post links to other web sites with opposing views, in order to assure a
diversity of voices is heard.[4] Owen Fiss of Yale has argued that the courts
should order governments to subsidize views that, in the judges opinion, are not
adequately heard.[5]
Well, almost certainly among the values underlying the First Amendment were the
desire to promote responsible, democratic self-government, and a desire to see that ideas
were available in the public arena. But what
men such as Mr. Baldwin and Professors Neuborne, Sunstein, and Fiss overlook is that the
Constitution specifically provides for how that is to be done by keeping government
out of the business of policing speech: Congress shall make no law
abridging
the freedom of speech, is what the relevant part of the document says. Not Congress shall enact appropriate
legislation to ensure that the voices of all Americans are heard. Not Congress
shall provide for that regulation of political campaign speech which best promotes a
functioning of democracy, nor even Congress shall take necessary measures to
assure that Americans are exposed to a wide range of competing views. The primary purpose of the Constition is not to
lay out goals, but to set rules on how they are to be achieved. So if campaign contributions are a form of speech
then one cannot trump the Constitutions specific language by an appeal to ones
own policy judgments and still claim to be following the Constitution. These men are like the builder who reports back to
the architect, I know that you valued a really spectacular entrance to the building,
so I junked your plan for an open atrium and put in a large fountain instead. Thats what makes for a spectacular
entrance. The builders value
judgment may be a good one, but he is usurping the rightful prerogatives of the owner and
architect to make such decisions.
Values matter in constitutional
interpretation, but they cannot be used as substitutes for the plain commands of the
document itself. To a remarkable degree, the
document tells us how the values implicit in it are to be achieved. Once we substitute our own vision of how to achieve
those values, we can no longer claim to be following the document. Instead, we are just enacting what we consider
wise policies or legislation something that needs no Constitution. In the cases Ive given, of the First and
Second Amendments, the language of the document makes clear that whatever the values are,
they are to be achieved not by affirmative government action, nor even merely by limiting
federal power, but by denying government the power to regulate these activities. Note that I am not suggesting that at this stage
in the process we search for some original intent. Rather,
I am suggesting that in most cases, at least in the first instance, there is no need to
consider values at all. The document speaks
for itself.
This does not mean that there is no
room for Constitutional interpretation. For
example, one may still question the meaning of the word Arms as it appears in
the Second Amendment. Clearly there is some
right of citizens to bear arms, and it does not hinge on their being members of the
Militia, or on whether or not the bearing of arms, in the opinion of judges or the
legislature, still contributes to the security of a free state. But does the term Arms necessarily
include every type of weapon known to man, including private nuclear weapons? Or we might ask what it means to
infringe the right. Does this
mean that citizens may not be required to relinquish their arms before boarding a
commercial aircraft? The answers to these
questions are far beyond the scope of this discussion.
I simply mean to show that the issue of interpretation, and the possibility of
regulation, for better or worse, doesnt go away simply by directing our focus to the
concrete language of the document rather than to nebulous constitutional
values. We may yet need to get into
values interpretation. But some interpretive
options clearly go off the table. It is not
possible, for example, to argue that the Second Amendment right to bear arms pertains only
to the militia, or that ownership of handguns can be banned.
Similarly with campaign finance reform. Do
limits on campaign contributions abridg[e] the freedom of speech? Some have argued that they do not. But most observers, including Professors Neuborne,
Sunstein, and Fiss, concede that limits on campaign spending and contributions abridge the
right of freedom of speech. That being so,
they cannot then argue that other Constitutional values in some way nullify or
alter the actual provisions of the constitution, which state that Congress shall make no
law abridging that freedom.
Thus far I have addressed, as examples, situations wherein some have attempted to
substitute alleged constitutional values for the more explicit commands of the
Constitution. But as I have indicated, even
in these situations, there is sometimes room for interpretation, and here is where values
might more properly filter into the discussion. However,
even in these situations, the recognition that the Constitution is a procedural, rather
than an aspirational document will shape interpretation of any given provision.
Let me make an extended example. Article
I of the Constitution establishes the legislative branch, with some specificity, including
provisions for such mundane matters as when the Congress shall convene (a date later
changed by the 20th Amendment); when Yeas and Nays shall be recorded and
published; that it shall publish its proceedings; and how members shall be compensated. This type of nitty gritty is completely absent
from our aspirational political tracts, and no one would suggest that an appeal to
values can overrule these provisions. Similarly,
Articles II and III in some detail establish the executive and judicial branches, and
specify their power and authority. The
remaining articles are even more oriented to detail; Articles IV and VI take care of
various miscellaneous matters, including provisions for administering territories, adding
new states, and requiring oaths of office; while Article V provides a procedure for
amending the Constitution, i.e. for changing the rules something which would seem
unnecessary were it an aspirational, rather than a governing document.
Within this format, Article I, Section
8, lists specific powers of the Congress, including such things as the power to coin
money, to establish post offices, and to issue patents.
Now some of these clauses are open to interpretation. However, if we are reading the document not as
some broad, nebulous statement of values, but as a specific, concrete plan for government,
we will be less likely to conclude that the provision allowing Congress to collect taxes
and to provide for the common Defense and general Welfare can serve as a
sweeping invitation to Congress to do most anything, regardless of whether the power is
included in the specifically enumerated powers that follow.
Moreover, when we read the document as a specific plan for government, we are more
likely to see such clauses as further qualifiers on government power that is, in
carrying out the powers granted below, it must act for the common Defense and general welfare, rather than for the benefit of
select groups or individuals.
Similarly, the power to regulate
Commerce with foreign nations, and among the several States, and with the Indian
Tribes, cannot serve as a grant of plenary power to the congress to fulfill whatever
values congress, judges, or even a majority of the electorate, view as important at that
particular time. For while it is true that,
in some vague sense, every action each of us undertakes might have some faint effect on
commerce, the Constitution does not suggest that Congress may regulate any activity
affecting commerce. Nor could
such a broad interpretation be the meaning of the document, or there would be no need for
the careful enumeration of other powers. Once
Constitutional provisions are interpreted so broadly, we no longer have a blueprint for
government operation, but simply an empty vessel into which different groups can pour
their policy preferences.
Furthermore, reading the document to
construe enumerated powers narrowly helps the document to make sense in a way that reading
it as a broad license to attempt to achieve certain values does not. If we read the spending and commerce clauses
broadly, so as to give Congress plenary, or near-plenary, powers, not only do we make the
enumerated powers seem redundant, but we bring the Constitution regularly into conflict
with itself, with its specific prohibitions on power.
Such prohibitions are found most often, though not exclusively, in the Bill of
Rights. Reading the document so as to bring
its different sections into regular conflict makes little sense when we consider what the
document attempts to do provide a governing framework. If, on the other hand, the governments
powers are relatively few and specifically enumerated, conflicts between the powers of the
government and the rights of individuals are few. Indeed,
the authors of the Federalist papers argued that no Bill of Rights was necessary precisely
because the government had no power to do those things it would be prohibited from doing
by a Bill of Rights. Wrote Alexander
Hamilton, Why, for instance, should it be said that the liberty of the press shall
not be restrained, when no power is given by which restrictions may be imposed?
Today it is largely forgotten, but at
the core of the Constitution is this principle of limited, enumerated powers. Indeed, prior to the Supreme Courts 1995
decision in United States v. Lopez,[6]
commentators had generally interpreted the Commerce Clause and the Spending Power of the
Constitution so broadly as to give congress plenary power to do whatever it saw fit. To suggest otherwise was, as Boston University Law
Professor Randy Barnett puts it, considered antiquated and beyond the bounds of
respectable academic discussion.[7] But Lopez
illustrates the way in which a narrow interpretation of the governments enumerated
powers avoids needless conflict within the document.
In Lopez, the Supreme Court struck down a
federal law mandating gun free zones around public schools, as going beyond
Congresss power under the Commerce Clause, and authorized no where else in the
Constitution. By analyzing the matter as a
question of congressional power, the Court never even needed to analyze the statute for
its Second Amendment implications.
Why then, are so many so eager to
interpret the Constitution not in terms of its actual provisions, but in terms of its
alleged values? The answer is, oddly enough,
that these people are not particularly enamored of many of the values that seem to have
motivated the drafting of the original document and its first ten amendments, the Bill of
Rights. How so? Well, lets begin by looking at the values
that seem to be behind the provisions of the Constitution.
One such value seems to be that of national unity, as found in the full faith and
credit clause; in the power given to the federal government to conduct foreign policy; in
the requirement of Article I, Section 8 that all Duties, Imposts and Excises be uniform
throughout the country; in Article I, Sections 9 and 10, providing that no duties shall be
laid on exports from one state to another, and that intrastate shipping not be subject to
duties; and in Congresss express power to establish post roads, among others. Another value, it seems to go without saying, is
representative democracy. So far, so good. There
are not many around today who quarrel with such values.
But certain other motivating values seem more controversial today. Among the values influencing the document are an
attachment to private property, and a tremendous distrust of government power. These values are discussed at length in the
Federalist Papers, and reflected in many provisions of the document, including the due
process and procedural protections of the Third, Fourth, Fifth, Sixth, Seventh, and Eighth
Amendments, Article I, Section 9, and Article III, Section 2; the explicit protections of
private property and contract found in Article I, Section 10 and the Fifth Amendment; and
most of all in the documents careful division of power, with its three co-equal
branches, bi-cameral legislature, and painstakingly enumerated limits on the jurisdiction
of the courts and the powers of the Congress.
The idea of a government with limited, enumerated powers, is at the core of the
Constitutional scheme. You see, the
Constitution doesnt just create a Congress, an executive, and a Supreme Court, and
instruct them to work generally to build a more perfect union, or to
secure the Blessings of Liberty. Instead,
it specifically states what powers they shall have to pursue these and other objectives,
such as promot[ing] the general welfare.
In other words, viewing the Constitution as a blueprint for government, the first
question to ask when considering the constitutionality of government action is: does the
government have the power to take this action? Only
if the answer is yes need we go to the second question: is there some other provision of
the Constitution usually in the bill of Rights that limits this power? To answer these questions, we frequently do not
need to turn to Constitutional values. Indeed,
if we must reach a discussion of values, it may be a warning that we are at the edge of
constitutional authority. If we begin with an
appeal to values, it is usually a sign that the Constitution does not, in
fact, authorize government to take the actions in question.
Thus the procedural provisions of the Constitution, including enumerated powers,
frustrate those who favor strong government efforts to promote certain values. But because the Constitution arguably reflects
many different values, if the focus of the discussion can be moved off the document itself
and to the alleged values behind it, it becomes easy to pick and choose. There is always some value that one can argue
trumps the actual language. Find a
sympathetic judge, and the race is on. This
is sometimes called a living constitution, but what it actually does is make
for a dead constitution, as the provisions of the Constitution no longer serve to
delineate the powers of the government. Those
powers may thus change at any time, with no prior notice, and without the consent of the
people.
Where does this leave us? If I am
correct about enumerated powers, much of what the federal government, if not the states,
have been doing for the past 70 years is unconstitutional.
Lets take the example of my agency, the Federal Election Commission. Where is the authority for Congress to regulate
campaign contributions and spending at all? The
assumption seems to be that it exists in Article I, Section 4, which gives Congress the
right to determine the Times, Places, and Manner of holding Elections for Senators
and Representatives
. Well, campaign finance regulations do not relate to the
time or place for holding an election. That
leaves "manner." Do contribution
and spending restrictions, in any normal sense of the phrase, refer to the manner of
holding an election? I think not. The manner of holding an election seems to relate
to how candidates might be placed on the ballot, how votes are tallied, how voters prove
their eligibility to vote, and so on. The
speech that goes on before an election is not usually thought of as part of the manner of
holding the election. That is why we refer to
campaign ads, not election ads, and why we call the weeks leading
up to the election the campaign, as opposed to the election, the
latter being a singular event which takes place on election day. If it were otherwise, even our dinner table
conversations could be regulated as part of the manner of the election. True, such regulation might be checked by the
First Amendment. Yet were there no First
Amendment whatsoever, would anyone truly think that regulating dinner table conversation
was a reasonable interpretation of the phrase, manner of holding an election? And if so, wouldnt that again be
substituting a plenary power for an enumerated one? The
"manner of holding" an election cannot refer to everything that in some way
"relates to" or "affects the outcome of" an election. Just to drive home the emptiness of the claim
that this clause is the legitimate source of federal power to regulate campaign spending
and contributions, note that we also regulate campaign contributions and spending in
presidential races. Yet at the presidential
level the Constitution doesnt even give Congress the power to regulate the manner of
the election. Rather, Article II, Section 1
grants Congress only the power to determine the Time of chusing the Electors, and
the Day on which they shall give their votes. There
is no provision for regulating the manner of the election at all. So where is the power to regulate campaign
spending and contributions?
Yet what is done is done. The fact is,
we do have a federal government that engages in widespread activities exceeding the powers
granted it in the Constitution, and these activities have been blessed by the courts and
accepted, it seems, by substantial majorities of the people. We are, in that sense, already living in a
post-Constitutional era. The problem, then,
for those of us who favor the original conception of the Constitution, is to get to back
to a government of enumerated powers from the position in which we now find ourselves. Is there any going back, once settled expectations
have been based on decisions of what the Constitution allows the government to do? Millions of individuals work for governments in
bureaus for which there is no solid constitutional authorization; millions more have built
careers, bought homes, planned savings, and planned lives on the basis of government
programs which we might believe cannot be justified under a plain reading of the
Constitution. These settled expectations
cannot and should not be changed overnight indeed, it will take years. How can this be done?
First, we ought not ask too much of the courts.
It would be all but inconceivable that the Supreme Court, even with favorable
changes in its personnel, might suddenly reverse 70 years of jurisprudence with one fell
swoop, and such an action would likely cause societal chaos. Prudence alone dictates that changes must be long
and gradual. Decisions such as Lopez are a positive start, reminding us of the
concept of enumerated powers and slowly, incrementally, driving the government back to its
proper domain. We need to build on Lopez and other limiting decisions, even while
recognizing that the courts cannot go too far or too fast.
Similarly, appointed officials in the executive branch must not ignore those laws
that exceed the enumerated powers of the Constitution, but we can and ought to give them
their narrowest possible interpretation, and in the most extreme cases it may even be
necessary to refuse to enforce them on constitutional grounds for executive branch
officials, too, take an oath to uphold the Constitution - at least until ruled otherwise
by the courts.
But the real change must come from Congress and, more, the people themselves. Our Senators and Representatives should interpret
their mandates narrowly, and take their constitutional oaths seriously. Each proposed action in congress really ought to
begin with a debate over its constitutionality, and members should vote against
legislation for no other reason than their personal belief that it exceeds Congress's
enumerated powers. But this means electing
representatives who will recognize and abide by the constitutional limits on their
authority, and this will only take place on a broad scale when the electorate decides it
is important to elect such individuals.
A few years back Rasmussen Research
asked the following question in one of its polls:
The Constitution gave limited powers to the federal government. Sometimes, Congress passes laws that are not authorized by the Constitution. For example, there is no authority in the Constitution for the federal government to pay for 100,000 additional teachers in local school systems. In a case like this, is it better for Congress to follow the Constitution or is it better for Congress to pay for 100,000 additional teachers?[8]
By a 51-36 percent margin, with 13 percent undecided, respondents answered that it was better for Congress to provide federal funding for 100,000 additional teachers in local schools than to follow the Constitution.
For the 51 percent, it is clear, the Constitution simply has no real relevance to
the dilemmas of today. We need to convince
these people that the Constitution still matters, and that even when it limits
governments ability to take actions they believe might help them achieve short-term
values and goals such as hiring a few teachers with federal rather than local taxes
adherence to its procedures will help us all to achieve and maintain our long-term
values and goals. The authors of the
Federalist papers devoted far less space to explaining the procedures of the Constitution
than they did to explaining why those procedures would serve to implement the values of
the people. We must likewise demonstrate to
Americans that they gain long-term benefits from adherence to the Constitution.
With this in mind, let me return to the events of September 11, 2001. If the restrictions of the Constitution are
considered so irrelevant when it comes to something as relatively trivial as hiring a few
teachers with federal, rather than local, taxes, what possible relevance can this huge
block of the public see in the Constitution in times of crisis or war? Even before the first sun had set on the wreckage
of last Tuesdays attack, numerous commentators were telling us that we had best be
prepared to give up some of our freedoms in the coming fight. I watched on television as a former Secretary of
State trotted out the hoary old line, the Constitution is not a suicide pact.
Now I agree that the Constitution is not a suicide pact, but Im not sure that
the speaker and I were drawing the same conclusions from that. That former Secretary of State seemed to suggest,
though I hope I was misinterpreting him, that we ought to be prepared to ignore the
Constitution in the coming months, or even years, in order to prosecute the war on
terrorism and terrorists. I, on the other
hand, believe it especially important in times such as these to recognize the importance
of the Constitution and the freedoms it preserves.
The framers were not unaware that wartime may require some sacrifices of liberty. Indeed, in drafting the Constitution and the Bill
of Rights, they drew heavily on state constitutions, many of which were adopted during
wartime the Revolutionary War, to be precise, when hostile armies were tramping
across the states and burning farms and homes. So
the procedures of the Constitution were made sufficiently flexible to serve in war as well
as in peace. One clear and non-controversial
example of the wartime flexibility built into the Constitution appears in the generally
forgotten Third Amendment. You know it by
heart, Im sure: No soldier shall, in time of peace be quartered in any house,
without the consent of the Owner, nor in time of war, but in a manner prescribed by
law. This Amendment has not, we must
admit, been the most prominent part of the Constitution to date, and even now it is hard
to foresee it having much application. But
note that the document anticipates sacrifices in wartime while no soldier may be
quartered without the permission of the owner in peacetime, in times of war such
quartering may occur. However, note also that
the Constitution tempers this authority such quartering may only take place in a
manner prescribed by law, assuring both even-handedness in application and ultimate
accountability to the electorate, so it cannot become an excuse for tyranny.
Or consider Article I, Section 9, which states that writs of Habeas Corpus
shall not be suspended, unless when in
Cases of Rebellion or Invasion the public Safety may require it. Again, allowance is made for war.
Other provisions in the Constitution are flexible as well. The Fourth Amendment, for example, does not
prevent all government searches and seizures, but only unreasonable searches
and seizures. What is unreasonable in times
of peace may be reasonable in times of war. Similarly,
the Amendment provides that warrants shall only be issued on probable cause. What constitutes probable cause may
also vary in times of war or national emergency. The
Fifth Amendment requirement of Due Process, and the Eighth Amendment prohibition on
excessive bail are other provisions with a built in flexibility to account for
the times and circumstances. What is
excessive? What process is due? The Constitution's basic structure also serves to
provide a solid foundation for a government that can both wage war and respect our
liberties. For example, the Constitution
provides for Congress to maintain armed forces, and for the President to serve as
Commander in Chief. By placing the President
in command, the Constitution assures civilian control and yet avoids the confusion of and
delay of control by committee; by providing that Congress supports an army and maintains
the navy it assures ultimate popular control.
I am not saying that the time has necessarily come to redefine what constitutes a
reasonable search, or anything else in these provisions. But I do want to point out that these and other
provisions allow the government the flexibility and power to take measures that may be
necessary in time of war, but which would not be allowed in times of peace. At the same time, they provide mechanisms to
retain popular control over the government and military, and to assure review of
government actions, and protections of civil liberties, by an independent judiciary. Further, the Constitution makes clear that there
remain some things that the government simply cannot do, even in war. Its searches must still be reasonable given the
circumstances. Bail cannot be routinely
denied. The government may not disarm the
populace. It may not muzzle political
discussion. It may not do away jury trials,
and it may not seize private property without just compensation, among other things. The Constitution still stands as a barrier to
tyranny, and to the governmental usurpation of powers that we have decided, even in
wartime, our government ought not have. This
barrier is especially important in times of war or crisis, when passions run hottest, and
long-term interests are sometimes forgotten. Of
course, it is only a paper barrier, and as such will sometimes fail. The Constitution will sometimes fail to prevent
such acts, as it did with the passage of the Alien and Sedition Acts, or the internments
of U.S. citizens on the basis of ancestry in World War II, both of which occurred during
times of external conflict. But when times
return to normal it serves to remind us of the proper limits on government power, and of
the liberties that we hold dear. And thus
while the Constitution is a procedural document, it is because of its procedural nature
that it remains, especially in wartime, both a reminder and a guardian of the values we
hold dear.
So this is a particularly apt time for us to gather and take a moment to celebrate
the Constitution. And I hope that each of us
will use this occasion to rededicate ourselves to protect not only our country, but our
Constitution, against all enemies, both foreign and domestic, in the coming struggle.
[1] Eugene Volokh, The Commonplace Second Amendment, 73 N.Y.U. L. Rev. 793 (1998).
[2] Letter from William Baldwin to Jamie Sneider, August 2001 (available at http://www.jaimesneider.com/baldwinvsneider.html).
[3] Burt Neuborne, Toward a Democracy Centered Reading of the First Amendment, 93 Nw. U. L. Rev. 1055 (1999).
[4] Cass R. Sunstein, Republic.Com (Princeton University Press 2001).
[5] Owen Fiss, Why the State?, 100 Harv. L. Rev. 781, 791-92 (1987).
[6] United States v. Lopez, 514 U.S. 549 (1995).
[7] Randy E. Barnett, Necessary and Proper, 44 UCLA L. Rev. 745, 747 (1997).
[8] Rasmussen Research, Poll: 51% Would Vote for Constitution Today, July 20, 2000 (available at http://www.portraitofamerica.com/html/poll-1066.html).