Southern Character, Confederate Nationalism, and the Interpretation of State Constitutions: A Case Study in Constitutional Argument
Gardner, James A., Texas Law Review
James A. Gardner*
The Character Thesis
Among the more common techniques of American constitutional argument is the resort to "character" as an aid to interpreting the United States Constitution. Character-based arguments seek to justify a particular interpretation of the Constitution on the ground that it is more consistent than competing interpretations with the character of Americans or with the values that Americans, in consequence of their character, hold dear. Philip Bobbitt, who calls such arguments "ethical," describes them as arguments "whose force relies on a characterization of American institutions and the role within them of the American people. It is the character, or ethos, of the American polity that is advanced in ethical argument as the source from which particular decisions derive."1
The plausibility of character-based argument derives principally from a familiar and widely accepted underlying conception of the Constitution. On this view, the Constitution is understood to be a self-conscious act of social definition by the American polity.2 Because the Constitution functions as a democratic expression of American aspirations for good and enduring self-government, it therefore by definition embodies the values that Americans understand themselves to hold. Moreover, as a document commanding governmental obedience to the popular will,3 the Constitution secures the integrity of American life by assuring that the organs of American government act consistently with fundamental American norms. A dual relationship consequently arises: the Constitution both expresses and shapes American character.4 Character-based arguments exploit this model to find meaning in the Constitution's otherwise vague injunctions. They do so by making assertions about the content of American character and from them deducing the meaning of the Constitution in concrete applications.
The presence of a character-based argument is often revealed by a proposition to the effect that "Americans are a people who"-who are of a certain kind, who behave in certain ways, or who hold certain beliefs or values. Sometimes these propositions are advanced explicitly, as in the Supreme Court's interpretation of the Eighth Amendment as "draw[ing] its meaning from the evolving standards of decency that mark the progress of a maturing society. "5 At other times the reliance on character may be more subtle, as in the Court's horrified rejection of legislation prohibiting the use of contraceptives by married couples.6 But all such arguments appeal in some way to the belief that the best constitutional interpretation is one that "comports with the sort of people we are and the means we have chosen to solve political and customary constitutional problems."7
Although not without its critics,8 the technique of appealing to American character seems to be a settled feature of American constitutional argument.9 Less settled, however, is the practice of applying characterbased argument to the interpretation of state constitutions. In numerous scholarly articles and a few influential judicial opinions, advocates of what has come to be known as New Judicial Federalism have urged state courts to treat the character and values of the people of their states as sources of constitutional meaning.10 Just as the character of the American people infuses the national Constitution, so too, they claim, does the character of the people of a state infuse the state charter. Thus, we are told, a state constitution is a "mirror of fundamental values"11 of the people of the state, one that expresses "the basic values of the polity."12 A state's constitutional law becomes, on this view, "uniquely expressive of that state's own constitutional culture."13 In sum, no function of a constitution, especially in the American states, is more important than its use in defining a people's aspirations and fundamental values. . . . A state constitution is a fit place for the people of a state to record their moral values, their definition of justice, their hopes for the common good. …