Academic journal article Policy Review

The Court, the Constitution, and the Culture of Freedom

Academic journal article Policy Review

The Court, the Constitution, and the Culture of Freedom

Article excerpt

IT IS NOT CONTROVERSIAL to contend that in the United States, constitutional law serves as a decisive battleground in the struggle over freedom's moral and political meaning. It is another matter to assess the impact of the battleground on the battle, to clarify the current balance of power, and to anticipate the battles to come.

By design, the American Constitution is the supreme law of the land. Because it is a liberal constitution, one whose first purpose is to protect individual freedom, the supreme law of the land avoids taking a stand on the supreme issues. It does not aim to instruct people on the virtues, or the content of happiness, or the path to salvation. That's not because it supposes that virtue is irrelevant, happiness has no content, or salvation is a delusion. Rather, the Constitution presupposes that the people, as individuals and through the various associations and groups they form, will pursue these goods. And it lays down a framework within which we, as a people, can maintain a society where each has the liberty to pursue, consistent with a like liberty for others, virtue, happiness, and salvation in the way each regards as fitting. This constitutional framework consists of the enumeration of government powers and the elaboration of individual rights. It establishes minimum requirements and imposes outer boundaries on state action and personal conduct while largely leaving substantive judgments about morals and policy to individuals and democratic politics.

Accordingly, as Alexander Bickel dryly observed more than . years ago in The Least Dangerous Branch, to say of some law or action or institution that it is constitutional is not to offer very high praise. For the Constitution permits much--from those in as well as out of office--that is foolish, vulgar, and degrading. Yet the enshrinement in the supreme law of the land of a large latitude for the exercise of individual freedom has consequences. It cannot but give direction to our moral life, incite and inspire habits and hopes, inform our sense of what is possible and of what is necessary, and instruct our understanding of what we owe others and what we owe ourselves.

To recognize the role of constitutional law in establishing a culture of freedom takes nothing away from the formative role played by economic life, popular entertainment and the arts, friendship and family, love and war, religious faith and faith in reason. Our opinions about freedom, as well as our capacities to enjoy its blessings and maintain its material and moral preconditions, are formed by many forces. The supreme law of the land, however, is of special interest. By establishing authoritative limits, by proclaiming, with the backing of the coercive power of the state, what is forbidden, what is permitted, and what is required, it creates comprehensive background conditions for, and sets a tone that reverberates throughout, all spheres of our lives.

Between progress and preservation

BY AND LARGE, since Marbury v. Madison (1803), when it settled the matter, the Supreme Court has been understood to have principal--though in our separation of powers system not exclusive or ultimate--responsibility under the Constitution for saying authoritatively what the supreme law of the land is. Yet most of the 80 to 90 formal written opinions the Court delivers each year involve technical issues which, when they are noticed at all by the public at large, do not excite much enthusiasm or cause much consternation beyond the confines of the parties involved. Nor do they have much discernible impact on how we experience or think about freedom.

Of those cases that, because of the morally and politically fraught issues at stake, do capture the public's attention, a preponderance arise under the Fourteenth Amendment. And the most morally and politically fraught of these concern abortion, which involves a contest over the interpretation of the Fourteenth Amendment's due process clause, and affirmative action, which involves a contest over the interpretation of the Fourteenth Amendment's equal protection clause. …

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