Does the Constitution of the United States “belong to everyone”? Does it mean whatever any citizen think it means? Is there any point to serious scholarly study of the constitutional text? I would apparently answer these questions differently than did the New York Times legal correspondent, Adam Liptak, writing in the Sunday Week in Review section last week.
Liptak’s column was ostensibly a comment on the constitutional position of the Tea Party movement, which he characterized as “not always easy to nail down, and … almost always arguable.” (I suppose he meant to say, “easy to argue with.”)
Liptak goes on to comment that “not a few constitutional scholars say that it is possible to quarrel with the particulars while welcoming the discussion. … The larger point is that the Supreme Court should have no more monopoly on the meaning of the Constitution than the pope has on the meaning of the Bible.”
Well, I think it is not a question of “monopoly,” is it, but rather of authority. I suppose the pope (given the doctrine of infallibility) does have the power to interpret the Bible for those who accept his authority. And the Supreme Court of the United States has authority to interpret the text of the Constitution, even though citizens may disagree with the court (just as Catholics may disagree with the pope). There is an important difference between authority and opinion.
There have always been contrary views of the American constitutional system. Opponents of slavery famously appealed to “higher law” in reaction to the Supreme Court’s infamous opinion in Dred Scott, and President Obama in his State of the Union speech made it clear that he did not agree with Chief Justice Roberts’ opinion in the Citizens United case.
Constitutional scholars have recently theorized a notion of popular constitutionalism. The best known of them is Dean Larry Kramer of the Stanford Law School, who would reject the notion of authority I have used above, saying that “final authority to control the interpretation and implementation of constitutional law resides at all times in the community in an active sense.” Dean Kramer is a distinguished lawyer and some serious scholars have agreed with him, but I think he has got his history wrong. I do not think his conclusion is either plausible or workable in the American constitutional system.
Think of the consequences of such a view in relation to the Tea Party people. Liptak quotes another legal scholar, Nate Persily, who has studied the relationship of public opinion to constitutional controversy, as saying that “You might think that questions about constitutional theory are an elite-driven idea, but people have opinions about this.” Indeed, Tea Party proponents do have opinions, mostly corresponding to those of the Anti-Federalists at the time of the writing of the Constitution. They are entitled to their opinions, and it is a clearly good thing in a discursive democracy that there should be public debate on basic questions of constitutional principle. But apart from the question of authority (not all ideas, even good ideas, have equal authority), it matters to the quality of the public debate how well-reasoned and plausible the contending ideas are.
Last fall I wrote about the sign of the man who sat next to me on a train to Washington, D.C., the morning of the September 12 Tea Party march. It read, as I remember, “I’m clinging to my: Bible, Gun, Freedom.” He was, I now realize, supporting what Liptak refers to as the Tea Party constitutional position on the First, Second, and 10th amendments.
From our very brief conversation, I could not tell if he knew anything about these constitutional texts. He was entitled to his beliefs in any case, but I think it does matter whether they can be delineated in the context of the specific historic tradition that is at issue. And that is why I am committed to incorporating the study of the Constitution and the constitutional tradition at every level of American education. The country is not well served by public intellectual brawls, whether they are carried on by Supreme Court justices or Tea Party marchers. A little additional constitutional learning and a lot more civility would be an asset to this troubled democracy.
9 Responses to Knowing the Constitution
woodstock - March 22, 2010 at 8:08 am
The Tea Party may be a prodrome to a big national,irrational,lawless riot.The stage is set: the USA has become a lawless, violence driven, jungle like society.
jhough1 - March 22, 2010 at 8:13 am
In fact, the “original intent” people are right on the Founders’ intention. The convention created a confederation in domestic policy, a strong President in foreign policy, and decentralization of military power to the state level. The Constitution is changed by the people, as it was (Thank God) in 1937–and earlier, including in the military realm. The people do it by electing Presidents who appoint Justices. That’s what you see in the current court.
dank48 - March 22, 2010 at 10:18 am
Hear, hear. Maybe I’m out to lunch on this, but it seems to me that, regardless of interpretation, we have seen in the past fifty years or so a remarkable tendency to subvert the Constitution. In the sixties (Tonkin Gulf Resolution) it was Congress handing over war powers to the president; that set a lovely precedent that’s lasted awhile. Since then, the executive, the legislative, and the judiciary have colluded more and more openly on this: RICO, with its blatantly unconstitutional short-circuiting of due process; the SC’s recent decisions expanding eminent domain, doubtless to bring the government into line with the parable of the talents (Matt. 25:14-30); the whole Heimatssicherheitsabteilung, pardon me, Department of Homeland Security metasticization; and let us not forget the plethora of lobbyist-driven legislation that demonstrates to anyone with eyes to see that the United States has the best government money can buy.Of course, maybe I’m wrong.
11159995 - March 22, 2010 at 11:03 am
I learned a different lesson from Louis Fisher, whose book on “Constitutional Dialogues” (1988) I acquired for Princeton University Press. Here is the summary of Fisher’s book on Amazon: “Who makes constitutional law? Is constitutional doctrine the monopoly of the courts? In accessible and persuasive prose Louis Fisher explains that constitutional law is not solely or even primarily the Supreme Court’s “final word” but rather a richly political convergence of separate interpretations. With a broad range of examples, he argues that constitutional principles emerge from a dialogue among all three branches of government–executive, legislative, and judicial. Important contributions also come from the states and the general public. Fisher identifies executive and legislative initiatives in many areas of constitutional significance. Where there is litigation, the Court generally upholds these initiatives or may avoid making a constitutional decision by using “threshold devices.” On those rare occasions when the Supreme Court exercises judicial review and strikes down a presidential or congressional action, it is usually only a matter of time before the proposal is revived and the dialogue begins again.”–Sandy Thatcher
cwinton - March 22, 2010 at 12:27 pm
I never cease to be amazed by those who fall back on “original intent” or “strict construction” in constitutional arguments. The document was crafted amid all kinds of compromise over an extended period of time, leaving any number of matters open to interpretation and in some cases characterized by outright silliness. The fact the document had 10 amendments added before the ink was barely dry speaks volumes. Key issues, such as who has the authority to interpret the language, were settled by precedent early on, and as with any legal document, precedent is usually the best guide when issues resurface (promoting evolutionary rather than radical change, which tends to destabilize; i.e., the cure may be worse than the disease). Those who disagree with any particular Supreme Court decision need to remember the Supreme Court membership represents past political realities, which is why it tends towards evolutionary transition, something we all need to remember promotes stability. If there is enough political will regarding a Supreme Court decision, the proper recourse is amendment. Those who think a Constitutional Convention makes sense should read up on the inaugural one. If you think special interests wield too much influence now, just think of what they would lavish on a Constitutional Convention to embed in law something favoring their respective agendas. I suspect it would be nothing short of a prescription for disaster for our country.
dank48 - March 22, 2010 at 5:10 pm
I’d say we do need a Constitutional Convention but for the self-evident truth that the powers that be would simply rig it to make their own lock on things that much more secure. Frankly, at times, things seem way past redemption.
jffoster - March 22, 2010 at 5:36 pm
Cwinton in 5 says of the Constitution: “The fact the document had 10 amendments added before the ink was barely dry speaks volumes.”Actually it doesn’t. Speaks an article or a monograph at most. It because clear several of the Sovereign States would fail to ratify the Constitution unless it included a Bill of Rights. Mr Dank48, of two minds I am about the advisibility of a Constitutional Convention. But if we have one, lets hold it in Ft. Smith, Arkansas, and/or Sioux Falls, South Dakota.
jffoster - March 22, 2010 at 5:37 pm
Sorry, it BECAME clear, not “because”.
dank48 - March 23, 2010 at 10:06 am
Well, JFFoster, I’d like to be optimistic enough to think that Ft. Smith or Sioux Falls would keep the rascals away, but of course their hirelings are probably willing to go there or even, say, Indianapolis to keep the status as quo or quo ante as possible. That is, I’d like to believe the situation is still susceptible to correction, but I really have to say I doubt it. Maybe it’s the pessimism of age, I don’t know. Given the choice between freedom and security, most people will choose security. Never mind that it’s a false dichotomy. We’re no smarter than we need to be. On the other hand, maybe that’s just the hardening of my arteries, and a Constitutional Convention could really clean house. I don’t know. A quarter century ago, a friend described Las Vegas as a town where “everything and everybody is for sale.” It seems more and more a not completely unreasonable description of the country.