What is “Constitutional”?
What does the US Constitution actually provide in terms of guidance for governance?
There is a great deal of comfort in the notion that there is a right answer, a constitutional answer, that will be arrived at if the proper methodologies are applied. However, this is a false comfort predicated on an imagined past filled with Framers who were part of a hive mind.
Now, I fully understand the impulse towards some type of originalism or at least the idea that there is a correct answer to every question. Indeed, for some time I held to a type of originalist thinking. However, knowledge can be, as they say, a dangerous thing because the more knowledge one has on a subject, the harder it can be to maintain deeply held, even cherished, positions.
Two early cracks in my thinking on this subject were the Declaration of Independence and Equal Protection Clause of the 14th Amendment. Specifically, it is difficult to square the way that white males in 1776 would have understood the phrase “all men are created equal” and then argue for an originalist application of the concept in the 21st Century (I will expound further on that in another post). Likewise, the 14th Amendment states that citizens should receive equal protection under the law, but the original intent of the phrase clearly was focused on males and, indeed, the Supreme Court did not apply the clause to women until 1971. However, our views on citizenship and equality have changed quite a bit since the 1860s (indeed, even since 1971). To hold to fully originalist position on the equal protection clause would require an amendment to the constitution to provide equal protection to women. Indeed, that this the position of Justice Scalia.* However, I think that when it comes to basic rights that we have to take into consideration evolving views of things like citizenship, and so changing views on gender, race, and sexuality have to be incorporated into our understanding of these constitutional provisions.
Reading histories** and biographies about the founding era also goes a long way towards disabusing oneself of the notion that The Framers ought to be viewed as an intellectual monolith.
Then there is the project I have been working on for about two and half years (and which is almost done, finally!) which looks at the US constitutional order in comparison with 29 other democratic countries . This project involved, amongst other things, reading through the constitutions of all 30 democracies, but also paying special attention to the US founding, including a very careful reading of the Federalist Papers, various antifederalist writings, Madison’s notes on the debates in the convention, other contemporary writings on the convention, and so forth.
One thing becomes clear: there is no perfect answer to the question “what is constitutional?” To be more specific, here are some things that are incontrovertibly true that makes appeals to perfect “constitutional” answers to given questions:
1. The Framers themselves did not agree on what the words on the page meant, or what the implications of those words would be even if they were in agreement over their meaning. This alone make original intent almost impossible to divine.
2. Much of what was designed did not work as intended. Several examples immediately come to mind:
- Many of the Framers believed that there would be frequent, often dramatic changes to the composition of the House of Representatives, since it was the people’s house, and the one prone to being influenced by the passions of the moment.
- They did not understand, or foresee, political parties and their roles in both elections and legislation.
- The Electoral College (a mechanism that they thought would frequently lead to the House choosing the president) never functioned as designed.
3. The Framers were politicians and made arguments to make political cases, which required compromising principles (a truism about the political regardless of the era under discussion). A case in point: The Federalist Papers. Hamilton and Madison were not strong political allies and had differing views of government, but they both wanted the constitution ratified. Therefore, they worked together on the Papers. Madison-as-Publius argued in favor aspects of the constitution that he argued against at the convention and that he critiques in other venues after the Constitution was written.
4. Not only were they politicians after the convention, but they were politicians before and during the convention. They had interests and goals and they cut deals and made compromises to produce the constitution. It should never be forgotten that the Constitution was born not in a miracle of agree over Truth, but instead was born in political compromise. And compromise leads to ambiguity rather than crystal clear truth. Compromise muddles. Compromise often puts off conflict until later (see, for example, the Civil War).
5. The words simply do not mean the same to readers now as they did then. Not only has the language itself changed, but the way we comprehend the world is different. Regardless of one’s view of the ACA, the fact of the matter is that the word “commerce” means something different to a person in 2012 than it did to a person in 1787. Consider the following terms and do a quick mental trip through time: “war,” “army,” “arms,” “Commander-in-Chief,” and so forth. Beyond the specific words and their meanings over time, there is much in the Constitution that is simply vague. What, pray tell, is (to pick a big one) “the general welfare”?
We can further see these types of issues into action by simply looking at the history of Constitutional interpretation. Any number of key concepts have been interpreted differently over time including, but not limited to, the meaning of free speech, commerce, and equal protection.
So, if the Constitution does not provide a text that is full of truth that we strive to comprehend, what does it actually provide? It provides a set of rules and structures that constrain political activity. It does not guarantee outcomes. Further, it sets up a struggle amongst power actors who are seeking to create certain outcomes. For example, there is no perfect answer to the question “Is the individual mandate constitutional?”—instead the answer can only be what the political process produces.
Constitutions establish the rules of the game and then the players have to play. Constitutions tell us if we are playing American football, Canadian football, or soccer. These are constraints. but the players have to figure out how they will play the games in question.
One thing that reading other constitutions demonstrates, especially when we are talking about well-functioning, long-standing democracies*** is that the US is less unique in terms of functioning constitutional order that both constrains political actors and protects fundamental liberties than Americans often pretend. (As an aside, I was interviewed last summer on a Florida radio station on this general topic and the host was surprised when I told him that most other constitutions have the same sorts of protections for basic liberties that we have in the Bill of Rights.)
In short, I think we make a mistake in assuming (and arguing) like there is a perfectly right answer to the question of what is “constitutional” and, further in forgetting that the main function of the Constitution is not to reflect timeless precepts, but rather is there to create the arena in which politics takes place. Indeed, as I have argued before, this is the true meaning of the concept of “limited government”—the fact that there are established parameters that constrain political power under known rules of activity, not that the government is ultimately limited in terms of a specific policy outcome.
Ultimately, the constraints on outcomes are first determined by the structure of the game, and then by the politicians and practical politics of the day, not by the abstract. To wit: if Ted Kennedy had not died when he did, we would have had a different bill, ultimately, because the Democrats could have refined the bill by going back and forth between the chambers (which was the plan until they lost their 60 votes in the Senate). Or, if Ruth Bader Ginsburg had retired during the Bush administration we might be talking now about the Scalia majority opinion, rather than the dissent. And in that alternate universe, the mandate would be unconstitutional.
Putting all this in a nutshell: the Constitution is not holy writ that contains revealed truth, and therefore the answer to the question of constitutionality is one of power and politics, not perfect truth.
We can all agree that “Congress shall make no law respecting…freedom of speech” or that Congress can regulate “interstate commerce” but once we all agree that the document says these things and they bind us in some way, the fight it still on regarding the application and meaning of the words–and that fight takes places in the context of a bicameral legislature, an executive veto pen, a Supreme Court with judicial review, and federalism.
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*In a January 2011 interview, Scalia said:
Certainly the Constitution does not require discrimination on the basis of sex. The only issue is whether it prohibits it. It doesn’t. Nobody ever thought that that’s what it meant. Nobody ever voted for that. If the current society wants to outlaw discrimination by sex, hey we have things called legislatures, and they enact things called laws. You don’t need a constitution to keep things up-to-date. All you need is a legislature and a ballot box. You don’t like the death penalty anymore, that’s fine. You want a right to abortion? There’s nothing in the Constitution about that. But that doesn’t mean you cannot prohibit it. Persuade your fellow citizens it’s a good idea and pass a law. That’s what democracy is all about. It’s not about nine superannuated judges who have been there too long, imposing these demands on society.
**An excellent example of this that I would recommend is a book I am currently reading: Ratification: The People Debate the Constitution, 1787-1788 by MIT historian Pauline Maier.
***For example: Belgium (1831), Netherlands (1848), Canada (1867), Australia (1901).
That’s the problem – it is seen as a holy writ by many. It was not some divine law but written by politicians. It’s a different world and as you said the words don’t even have the same meaning. Both Jefferson and Adams didn’t think the constitution would last more than 50 years and would have to be redone.
What may be shocking to some readers is that when the Constitution was written legal interpretation was not the exclusive province of the judiciary. That was a substantially later development.
The legislature interpreted the law; the people interpreted the law. The entire notion of legal interpretation was quite a bit different from the rigid approach we use now.
We also have a much shorter constitution than a lot of places. The US constitution is about 7,000 words long.
(a quick check on the Internet gives ranges of 4,000 to 10,000 for it, which is a little odd, given that you can just count, but I suppose there’s a metaphor there that people cannot even agree on the length of the constitution, let alone its contents)
State constitutions average 25,000 words long, Massachusetts clocks in at close to 40,000 words, and Alabama at 350,000 (someone may have enclosed their unpublished manuscript for a three volume novel).
If it is this short, you have to conclude that either the founding fathers didn’t have a lot to say, or that they meant for their words to be viewed broadly.
“either the founding fathers didn’t have a lot to say, or that they meant for their words to be viewed broadly”
Or they meant for the words to be viewed narrowly and added the 9th and 10th amendments.
@gdb: I have a really hard time reconciling that view with the failure of the Articles of Confederation. I even see parallels today. The corporate class push for a libertarian state, provided the U.S. Treasury can be raided when their scams go bust.
@gdb:
I get what you’re saying, but the ninth and tenth amendments don’t provide any real constraints on the federal government in and of themselves. If I interpret the constitutional powers broadly, then the tenth amendment provides no remedy because the tenth amendment defers to those constitutional powers. I can’t invent powers but I can grant broad constraints on existing powers. The ninth amendment keeps the government from trampling rights that aren’t expressed in the bill of rights, but if I believe one of these unwritten rights aren’t actually rights, then I’m not violating the ninth amendment.
Don’t get me wrong, I think both amendments are important. But I think their importance as limits on government, requires the same sort of broad and creative thinking that is required to use the constitution to grant the federal government broad powers.
This is all quite right. Most especially, the notion that the Framers were an apolitical monolith does a disservice to our political debate and to our understanding of contemporary politics. That is, our current crop isn’t quite as bad as they seem.
On the matter of Scalia and the rights of women, I think he’s fundamentally correct. Indeed, we HAVE passed laws mandating the equality of women but that clearly wasn’t the intent of the Constitution of 1789. Further, there was this thing called the Equal Rights Amendment, which failed to pass in the late 1970s and again in the early 1980s. It’s odd that we would have amended the Constitution to say something it already said.
Today, many in Congress, most of the Supreme Court, and the current White House resident regard the US Constitution as no more than a wall decoration. To them it’s “of the government, by the government, and for the government”.
@James Joyner:
The thing is, I agree that the original intent of the 14th amendment was for males only. My point is, our view of what the word “citizen” means has changed since then and would argue that therefore the 14th amendment can and should (and is, quite frankly) reinterpreted to include women (and other groups) that it was not originally intended to protect.
Just as freedom of the press is applied to any number of press outlets that did not exist (or could even have been conceived of) by the Framers. Indeed, if the only way to extent equal protection to women is to amend the constitution, is that not also the case to extent freedom of the press to internet-based periodicals?
@Clanton:
I must confess, this strikes me an empty formulation.
Just to use the most recent example: you think that individual mandate is insurance for the government? This is, of course, not the case.
Most of the originalists create some original version of the Consitution in their own minds. Scalia is the prime example.
Given Bush v. Gore and Citizens United and Scalia’s dissent on the PPACA I think it’s clear that electing Romney, in terms of the SCOTUS, is one of the worst things that could possibly happen.
Then there is Romney and Foreign Policy…
I think the progression “people have free speech,” “money is speech”, “corporations are people” therefore “corporations can spend as much as the like” is the worst sort of commutative logic.
Proponents will swear up and down that it all makes sense, but in the end I think it is only that they want corporations to spend as much as they like.
In truth money is not exactly speech, and corporations are not exactly people.
No, that’s not Scalia’s position. Here is Scalia:
To Steven’s point, interpretation, I don’t really want to live in a country where corporations are fully people or money is fully speech. That’s just inhumane.
(Noting as always that corporations skate on “human” punishments. They are only fined money, and never branded felons, etc. They never have their future rights or privileges reduced. A corporation which lies on Libor is not going to get its charter revoked. It’s not going to jail. At most it will pay a fine … with other peoples’ money.)
@PD Shaw:
I’m usually one to endorse democracy. That’s still my starting point. The thing is though, if there is to be a limit on democracy for the protection of individual rights, it has to come from the constitution, doesn’t it?
Steven can probably comment on his 30 constitutions, but I’d think “rights” aren’t usually defined afterwards, in legislation.
@Steven L. Taylor: But I agree with Scalia on how it should be done. That is, it’s not up to the courts to decide that, say, the Equal Protection Clause means gays should be allowed to marry; that clearly isn’t what it was supposed to mean. But legislatures can, and have, decided that our modern interpretation of equality means gays should be allowed to marry and have other sorts of protections under the law. (Obviously, a law that denied gays fundamental rights such as speech would be prima facie unconstitutional and courts could and should strike it down.)
On the matter of women’s equality, we passed an amendment to the Constitution to allow them to vote. Ditto blacks and other minority groups. I’m not sure why we couldn’t have done that by simple statute; presumably, it’s because we interpreted Congress’ power differently in those days.
It’s all they could come to agreement about before the beer ran out.
@James Joyner: But the thing is, it doesn’t end up working that way. In other words, it is easy to say “persuade your fellow citizens to pass a law” when one is already part of the protected class that has a constitutional guarantee for equal protection under the law, and further there is the basic problem that amending the constitution is nearly impossible.
So, it would seem to me that if the document says that “citizens” have specific rights and if our view of “citizens” changes over time, then our interpretation of the meaning of the clause should change. In other words: what is actually more important, the abstract principle that animates a given clause or the historically bounded meaning of the clause at the time it was written?
Again: if we have to go by the exact meaning of the clause when written, does that mean that the 2nd amendment only protects the right to keep and bear flintlocks? If we can evolved our understanding of things like “arms” and “commander-in-chief” because times and technologies have changed, then why can’t we change the way we view the words “citizen” and “equal protection”?
Ultimately, it seems to me that taking a truly originalist position is impossible because almost noting works exactly as it did in 1789. Things change and evolve. Looks at the state of the union address, as another example off the top of my head.
Bingo!
FDR over seven decades ago figured that out, the hard way. That’s why he wanted and was prepared to pursue a new and improved SCOTUS, so to speak. At least “improved” from his perspective and that of statism. Ultimately he got what he wanted without having to change the makeup of the Court. The rest as they say is history.
Now we’re saddled with a monolithic federal government. The end result will be calamity and that shouldn’t at all be surprising. The end result of statism always is calamity. Eventually you run out of other people’s money. We already witnessed this in connection with South America. Now we witness Europe. Hopefully we’ll manage somehow not to be next in line.
@john personna: Indeed, as I have written elsewhere, to have “democracy” requires some sort of basic protections for individual rights and liberties which curtail pure majoritarian governance. If the majority can vote down the speech of a minority, there can be no democracy.
And yes, the fount of these rights, fundamentally, are constitutions. Rights can be defined and refined in legislation, but the authority, both explicit and implicit, is the constitutional order.
@Tsar Nicholas:
I am not sure what you mean by “monolithic” in this context.
LIkewise, I am not sure what calamity you foresee.
And while it is true that countries can make serious fiscal errors, Greece being an example, although their situation is more complicate that mere overspending, as lack of monetary controls comes into play.
I can also think of examples of severe economic crises in places like Argentina, Brazil, and Mexico at various points over the last three decades, but last time I check, all three still exist, and are doing relatively well at the moment (although Mexico has a serious drug violence problem, but that has little to do with fiscal policy). As such, I am not sure what your point is. Beyond that: what do you suggest we do, return to an 18th century level of government and return to our small family farms?
@James Joyner: I just wanted to parse your last paragraph a bit. You write:
“We” being males enfranchised with suffrage by the Constitution? Don’t you see how Scalia’s instance that “You don’t need a constitution to keep things up-to-date. All you need is a legislature and a ballot box” breaks down with various groups in society aren’t enfranchised to used said ballot box?
@Phillip:
Speaking of which, how many have actually read the Articles? I confess that I hadn’t until a short time ago. You can them here. See if you agree with me that they resemble nothing so much as a proto-NATO treaty. Moreover, it’s clear to see why they failed to accomplish what was desired.
Most states had passed women’s suffrage laws before the Nineteenth Amendment.
@PD Shaw:
Indeed, by 1920 only a handful of states didn’t have at least partial voting rights for women.
@PD Shaw: “Most states”
@Doug Mataconis: “at least partial voting rights for women.”
And yet the only way to achieve universal and full access was via some sort of constitutional application.
I was addressing the point that @James made in his post above. Contrary to his assertion, it was in many cases women who were electing the legislators who ended up ratifying the 19th Amendment.
@Doug Mataconis: Yes, but his general point stands: it is easy, as I note above, to state that all is well and good and can be fixed over time when one is part of the constitutionally enfranchised group. It still took male legislators elected by male voters to change the laws in question.
And 38 out of 48 state legislatures ratified the Nineteenth Amendment in less than two years.
Scalia’s argument is strange, because it leads to the question of why constitutions should innumerate rights at all? Why not just innumerate powers and then let legislatures handle the rest? Or you could extend it further and just trust legislatures for rights and powers.
The only way I can make sense of it is that he is some kind of frozen-time originalist, with the view that rights innumerated in the 18th century are the full and complete set.
He sure didn’t say “add an amendment,” quite the opposite:
Bottom line … really odd for a constitutional originalist to say you don’t need a constitution.
@Steven L. Taylor: Exactly my point. It is really easy for Scalia to glibly extoll on the virtues of the democratic process, when the entire apparatus of the democratic system overwhelmingly represents his male viewpoints. Doug, you consistently ignore that fact that you swim in a sea of great historical privilege.
@john personna: the Economist’s W.W. really nailed it, in my mind:
@Doug Mataconis: Lastly, the 19th Amendment of the United States was drafted, debated, and voted on by the 66th Congress. Both legislative bodies combined for a whopping total of zero female lawmakers.
Scalia believes that the role of enumerated rights is to prevent “backsliding.” There are moments in history where the political process identifies rights that it wants to protect going foward. The role of the court then is to prevent the popular will from not honoring those restrictions.
Scalia would point out that in many cases, its the advocates of a “Living Constitution” or balancers of competing interests are the ones allow backsliding. For example, Scalia believes thermal imaging of a house is a warrantless “search,” American enemy combatants must be convicted of treason, and the right to bear arms does not become outdated because of urbanization.
“Anything called a ‘program’ is unconstitutional.”
– columnist Joseph Sobran Sobran.com
Joe was one of a kind – maybe the best writer of all.
I recall being told in law school that there’s a school of legal thought that believes that the Reconstruction amendments fundamentally altered the federal structure as originally conceived in the constitution. Certainly, the notion of “incorporating” the bill of rights to cover state governments would not have been possible without them. At a minimum I think it’s safe to say they added new constraints to the conception of state sovereignty that were not in the original constitution. But I’ve never read an originalist legal decision that tried to account for the effect of the 14th amendment on the meaning of, say, the Tenth amendment.
@Steven Taylor
“if we have to go by the exact meaning of the clause when written, does that mean that the 2nd amendment only protects the right to keep and bear flintlocks? ”
The “killer argument” against obtuse originalism à la Scalia. Haven’t heard of any legislation explicitly extending the definition of “arms” from what it meant in the late 18th century.
@Steve V:
Perhaps it began with the Gettysburg Address, wherein Lincoln made the Declaration’s assertion of unalienable rights central: