The debate over whether the Constitution should be construed as the framers "intended" illustrates the way in which this Administration shapes public controversies to hide its true goals. It sounds like a problem of lofty constitutional significance, but it's really part of an extensive campaign to diminish Americans' constitutional rights by weakening the courts' protection of them.
The Administration's strategy was launched this summer, when Attorney General Edwin Meese 3d tore into the Supreme Court before the American Bar Association. He questioned the Court's sixty-year-old "incorporation doctrine," whereby key provisions of the Bill of Rights, like freedom of speech, press and religion, and various rights relating to criminal procedure are made applicable to state and local officials through the Fourteenth Amendment. Characterizing the doctrine as "constitutionally suspect," "intellectually shaky" and "politically violent," and criticizing the Court for deciding press on policy grounds rather than on constitutional principles, he called for a "jurisprudence of original intention." He returned to this theme on November 15, charging that some judges are engaged in "a form of chameleon jurisprudence, changing color and form in each era," and that a focus on "concepts of human dignity" has led to some remarkable and tragic conclusions."
Insistence on the "original intent" is politically astute: a certain group of people drafted our Constitution, and to understand what they wrote, it seems reasonable to look to what they intended to accomplish.
This apparent reasonableness masks a hidden agenda, however, which Justice William J. Brennan Jr. spotted. In a speech at Georgetown University in October, he pointed out that upholding "constitutional claims only if they were within the specific contemplation of the Framers in effect establishes a presumption . . . against the claim," for it locks us into an era when our notions of liberty and morality were much less developed. In 1787 capital punishment for horse theft, burglary and counterfeiting was not uncommon; states had established churches and seditius libel was a crime. And though Brown v. Board of Education is now so sacred that even Meese finds it politic to praise it, in 1866 the framers of the Fourteenth Amendment approved of segregation in schools and transportation, the poll tax, anti-miscegenation statutes and laws denying blacks the right to serve on juries. Soon after, in 1873, the Supreme Court allowed Illinois to deny women the right to practice law. Meese has cited the Dred Scott decisions as a "tragic conclusion" of looking primarily to "concepts of human dignity." He failed to mention that Chief Justice Roger B. Taney "read blacks out of the Constitution," as Meese describes it, not on some "concepts of human dignity" but on an elaborate analysis of the framers' intent. In sentiments often echoed by Meese, Taney wrote:
No one, we presume, supposes that any change in public opinion or feeling . . . should induce the court to give to the words of the Constitution a more liberal construction in their favor than they were intended to bear when the instrument was framed and adopted.
On the other hand, the historical record shows that the framers of the Fourteenth Amendment had no objection to racial preferences and affirmative action. The Freedmen's Bureau Act, also adopted by the Thirty-ninth Congress, was bitterly opposed because, as one senator complained, it "gives them [blacks] favors that the poor white boy in the North cannot get."
Obviously, Meese does not try to justify school segregation or antimiscegenation statutes today, and certainly not racial preferences, even if the framers did approve of them. But if there is discretion to choose which intentions to honor and which to reject, by what criteria are those choices to be made? Except by exercising a contemporary moral and practical judgment, how can one reject the framers' views on some things but not on others?
Meese evades those questions by distorting the historical record. Thus, despite the consensus among legal scholars that the framers of the Fourteenth Amendment accepted school segregation, he asserted in his November 15 speech that Plessy v. Ferguson, which upheld segregation, violated their intent.
A clear intent, however, is often hard to find. In the first place, what people in earlier eras meant when they used certain words, whether in a constitution or a law or in written or oral discourse, can rarely be grasped without a sophisticated understanding of the social and legal context of the time. The term "construction," for example, meant something to an eighteenth-century lawyer quite different from what it means today. Also, the historical materials are often confusing and incomplete. The record of the debates during the Constitutional Convention of 1787 is not a verbatim transcript but a compilation of notes by many people, characterized by editor Max Farrand as "carelessly kept," sketchy, incomplete, often inaccurate and, in James Madison's case, revised thirty years after the fact.
Moreover, historians' findings, like those in any other discipline, are constantly being revised. Twenty-five years ago, Leonard Levy wrote that the framers did not intend the First Amendment to repudiate the very repressive common law of seditious libel. His conclusions became the accepted view. REcent research, however, has led him to recognize a much greater acceptance of vigorous expression in the late eighteenth century than he had originally found. Should the Court's decisions change with each shift in the winds of scholarship?
Uncertainty as to the framers' intent results from more than the paucity of evidence or inadequate scholarship. Circumstances have changed so much since the late eighteenth and mid-nineteenth centuries that there is no way of knowing how the framers would respond to today's problems. As Justice Sandra Day O'Connor observed in Wallace v. Jaffree, which considered the constitutionality of Alabama's requirement that scholchildren observe a moment of silence, there was no public school system in 1787, and "it is unlikely that the [framers or ratifying legislators] anticipated the problems of interaction of church and state in the public schools." That holds true for almost every major problem the United States faces today as a postindustrial international power of 235 million people, far different from the small, weak, fragmented society of the eighteenth century.
Ultimately, courts must depend for their historical research on the competing lawyers, whose skills and financial resources vary. Because lawyers will almost certainly manipulate what they find (historian Alfred Kelly has dubbed this "law-office history"), the judges, who are not trained historians, will have to decide between clashing, often distorted, versions.
Even if we could reliably discern the framers' intentions, why should their view govern? They didn't adopt the Constitution. The only drafted it; the state conventions adopted the Constitution. And an even larger group adopted the Bill of Rights and the Fourteenth Amendment--two-thirds of both houses of Congress and three-fourths of the state legislatures. Why aren't their views, in all their multiplicity and ambiguity, the decisive ones?
Indeed, if we are to look to the framers' intent at all, we should consider primarily how they wanted their product to be construed. Here, the record is quite clear: like most seventeenth- and eighteenth-century lawyers, they generally believed that only the text and structure ofa constitution or law should be considered, not the subjective views of the draftsmen. Madison, for example, deliberately had publication of his notes on the Constitutional Convention delayed until after his death, explaining that "as a guide to expounding and applying the provisions of the Constitution, the debates and incidental decisions of the Convention can have no authoritative character."
The insistence on original intent also conceals a class bias. In November, Richard Epstein of the University of Chicago, The Wall Street Journal's favorite legal theorist and one of the Administration's chief advisers, wrote that both Meese and Brennan were wrong judicial activism is appropriate, but only to protect property rights or to prevent the redistribution of wealth. The Court, therefore, should strike down zoning ordinances, historic-preservation and rent control laws, collective-bargaining and minimum-wage laws and, indeed, the entire New Deal. "If I am right," proclaimed Epstein at a conference last spring, "the New Deal was wrong." Contrary to what Justice Oliver Wendell Holmes said in 1905, Epstein insists the Constitution does create a laissez-faire society, based on John Locke's theories of property rights. In this view, the Founding Fathers intended to lock future centuries not just into a late-eighteenth-century midset but into a seventeenth-century view designed to protect the English propertied classes.
A pro-property bias is also reflected in Meese's suggestion, in September, that the independence given by Congress to more than a dozen Federal regulatory agencies since 1890 is unconstitutional, a view obviously drawn from Epstein's attack on the New Deal. Again peering into the framers' minds, Meese asserted that they had not intended that the agencies should be run independent of the President. Not surprisingly, the adoption of Meese's views would place the agencies that regulate business under much greater Presidential control.
We live on the threshold of the twenty-first century and must solve today's problems in accordance with today's perspectives and values. There has indeed been a continuum in our way of doing things since 1787, and it is reflected in longstanding customs and ways of thinking, in a general adherence to legal precedent, as well as in our fidelity to core ideas and values in the Constitution. As Meese has rightly said, "Those who framed the Constitution chose their words carefully." But the words they chose are rarely precise or confining, for the drafters wanted to accommodate what Thaddeus Stevens in 1866 called the "advancing progress of a higher morality," future usage and interpretation. That is how higher law was interpreted in the pre-Revolutionary period and the way it has been throughout our history. Although Madison, for example, thought that the establishment of the first Bank of the United States was unconstitutional, twenty years later he approved the second. The constitutional text hadn't changed, he explained, but a "construction [had been] put on the Constitution by the nation which, having made it, had the Supreme right to declare its meaning." This is equally true for the varying meanings of liberty that our courts have developed not just over twenty years but over almost two centuries, and that the nation has fully accepted.
The campaign to diminish the judiciary's role in projecting individual rights has adopted another argument based on history: a claim that the judiciary was not originally intended to be the primary protector of individual liberty. In October, Bruce Fein, a former Justice Department official and the source of many of Meese's notions, told a television audience that the Founding Fathers "sought to protect our liberties by separating out power in a variety of ways including the judiciary. . . . It was primarily by requiring a whole set of coalitions coming together before there was any enactment that liberties were to be protected." Elsewhere he has written: "The first place to get resolution or redress would be in your legislative offices or in your executive branch offices. The judiciary should be there only to police the outer perimeters which legislators and executive officials have in formulating policy."
That view turns the Constitution on its head and is historically insupportable. In the first place, if the framers relied on the separation of powers to protect individual liberties, there was no need for the Bill of Rights. Second, Fein's view ignores whatever reliable history we have. There is little disagreement among scholars that the Constitution was intended to curb what Thomas Jefferson called "elective despotism." Equally clear, eighteenth-century Americans were accustomed to courts annulling legislation in the name of a fundamental higher law, whether unwritten or written, drawn from such sources as the Magna Carta, English common law and Dr. Bonham's Case, in which Sir Edward Coke declared, "When an Act of Parliament is against common right and reason, the common law will controul [sic] it and adjudge such Act to be void." The English Privy Council struck down laws applied to the American colonies that were inconsistent with higher authority, and James Otis and John Adams challenged searches and the Stamp Act because they violated natural rights.
Furthermore, state constitutions contained bills of rights, and in the pre-Constitution period, several state courts held laws unconstitutional. In Massachusetts slavery was ruled unconstitutional in 1781 because it was inconsistent with a clause in the state's Declaration of Rights that "all men are born free and equal." Courts in Rhode Island, North Carolina, Virginia, New Jersey and elsewhere who held statutes unconstitutional, which in some cases resulted in legislative attempts to punish the judges.
Both supporters and opponents of the Constitution assumed that the courts would protect individual rights. Jefferson once wrote to Madison, "In the argument in favor of a declaration of rights, you omit one which has great weight with me, the legal check which it puts into the hands of the judiciary." The acceptance of the need for such a curb is at least part of the reason that Chief Justice John Marshall's assertion of the Court's power of judicial review in Marbury v. Madison--in 1803, during one of the most bitterly partisan periods of our history--met with no protest.
Reliance on the elective branches of government for the protection of individual liberty is a contradiction in terms. The Bill of Rights was created to protect individuals and minorities against the popular will. As Alexander Hamilton wrote in The Federalist Number 78, the Constitution imposes "certain exceptions to the legislative authority" in order "to guard the rights of individuals from the effects of those ill humors" that can oppress the minority or "injur[e] . . . the private rights of particular classes of citizens by unjust and partial laws." In introducing the Bill of Rights in the First Congress, Madison noted the fear of "abuse of the executive [and] . . . the legislative power," and stressed that the purpose was to "control the majority from those acts [aginst the minority] to which they might otherwise be inclined." One hundred and fifty years later, Justice Robert Jackson noted this in West Va. State Bd.of Ed. v. Barnette, saying:
The very purpose of the Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. [Emphasis added.]
For that purpose, an institution insulated from politics is necessary, which is why the courts were given the primary responsibility for protecting the
liberties established by the Bill of Rights and why Federal judges were given life tenure and immunity to legislative reduction of their salaries.
There is also a strong whiff of hypocrisy about this right-wing argument that we should rely on the legislature and the executive to protect individual rights. This Administration has opposed almost every legislative effort to promote civil rights and civil liberties for anyone but white males. Two years ago, it fought against strengthening the Voting Rights Act and now it is lobbying against the effort in Congress to overturn the Court's ruling in Grove City College v. Bell, which allows recipients of Federal funds to practice discrimination. In the courts, the Administration urges restrictive interpretations of legislation, as in Thornburg v. Gingles, a Voting Rights Act case now before the Court. And in their administrative capacity, the Reaganites have narrowly construed Section 504 of the Rehabilitation Act, which bans discrimination against the handicapped; has unsuccessfully tried to deny the Internal Revenue Service the authority to bar tax exemptions for segregationist schools; and is seeking to gut Executive Order 11246, which requires Federal contractors to adopt affirmative action plans--to cite a few examples.
Except there the protection of individual liberties is concerned, Meese and his right-wing allies are all for judicial activism. Meese has criticized the Supreme Court for refusing to strike down an act of Congress that requires state and local officials to honor the Fair Labor Standards Act. The Administration has urged the courts to rewrite antitrust law to favor business; one Reagan appointee, appeals court Judge Richard Posner in Chicago, has been so zealous in complying that even lawyers sympathetic to business have criticized him.
In the areas of civil rights and criminal law, the Administration has consistently urged the Court to issue sweeping rulings in cases that could have been decided on narrow factual grounds, such as Grove City and U.S. v. Leon, in which the Court created a large "good faith" loophole in the rule excluding evidence obtained by an illegal search.
Meese's public effusions on criminal law are part of another right-wing strategy against the Court. This summer, he assailed as "infamous" the decisions in Mapp v. Ohio and Miranda v. Arizona, which exclude illegally obtained evidence and require police to warn suspects of their right to remain silent, respectively. This is certainly popular stuff, but it is also quite dishonest. The one area in which the Justices have given the Administration just about everything it wants is criminal procedure. The Court hasn't yet overruled Mapp and Miranda, but it has done everything short of that. The attack on the Court is obviously designed to paint it as being soft on crime so that its decisions in other areas, such as abortion and church-state relations, will lose public support.
An independent judiciary is indispensable to the maintenance of individual rights. Following the U.S. example, Israel, Germany, Greece, Italy, Austria and others have adopted judicial review as a necessary safeguard for individual liberty. One of the first targets, therefore, for those who would destroy or weaken liberty is the judges. The Founders knew that, for in the 1780s Rhode Island and other states had tried to punish judges who found state laws unconstitutional. Meese and his cohorts on the right know it, too, and they are guiding themselves accordingly.…