Looking at the Constitution; Could Meese Be Right This Time?
Levinson, Sanford, The Nation
LOOKING AT THE CONSTITUTION
COULD MEESE BE RIGHT THIS TIME?
In one of his fireside chats, Franklin Roosevelt said of the Constitution, "Like the Bible, it ought to be read again and again.' Roosevelt's speech belongs to a long tradition of American political rhetoric that equates the Constitution with more conventional objects of worship. Such comparisons help us understand recurrent debates about the most fundamental aspects of the Constitution.
The rich history of disagreement in organized Christianity also sheds light on this discussion. The fundamental schism that we call the Reformation raised two profound questions: Where is God's message to be found? Who offers the last word, or at least the currently authoritative understanding, concerning what that message is? For Catholics the answer to the first query is a mixture of Scripture and the traditions of the church; for Protestants it is Scripture alone. Catholics answer the second question by pointing to the organized church, with the Pope as the ultimate symbol of infallibility in doctrinal pronouncements. Protestants, on the other hand, emphasize the priesthood of all believers; no single institutional authority can give binding interpretations.
The same questions, and the same basic answers, confront those who take the Constitution seriously. What constitutes the U.S. Constitution? Roosevelt implied that it is a specific document which, like the Bible, can be removed from a shelf and studied. One might, however, define the Constitution as only beginning with the parchment ratified in 1788 and its subsequent amendments. In addition one might include not only key decisions of the Supreme Court but also fundamental documents such as the Declaration of Independence and the Gettysburg Address, and, beyond that, aspects of the American experience that cannot be reduced to a text at all.
Once an agreement was reached on what counts as "the Constitution,' there would still be debates about proper interpretation. Who resolves them? Specifically, is the judiciary --and particularly the Supreme Court--the ultimate interpreter of the Constitution? Or, as a constitutional protestant might put it, is interpretation the province of all those who profess what might be termed the constitutional faith?
Certain recent speeches by Attorney General Edwin Meese 3d are the most important, if not necessarily the most articulate, affirmations of a strain of protestantism that has always been part of the American constitutional debate. Some aspects of that strain are decidedly more attractive than those of its "catholic' counterpart. Our suspicions of the Attorney General's political motives should not lead us to dismiss as unworthy of serious reflection the constitutional perspective that he provides.
Before the Tulane University Citizens' Forum on the Bicentennial of the Constitution, Meese emphasized the "necessary distinction between the Constitution and constitutional law.' He began by offering a classic protestant definition of the Constitution: it is a document that "begins "We the People' and ends up, some 6,000 words later, with the Twenty-sixth Amendment.' Constitutional law is simply "what the Supreme Court says about the Constitution in its decisions resolving the cases and controversies that come before it.' The Attorney General went on to cite the historian Charles Warren, who has said, "It is still the Constitution which is the law, not the decisions of the Court.'
This framework of understanding led to the most newsworthy aspect of his speech, a full-scale attack on the Court's role as, in its own words, "ultimate interpreter' of the Constitution. Although Meese was careful to concede the validity of a decision in regard to the particular parties before the Supreme Court, what stimulated controversy was his argument that only those parties are bound. "Such a decision does not establish a "supreme Law of the Land' that is binding on all persons and parts of government, henceforth and forevermore. …