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14th of November 2018

Opinion



The Thousands-Year Old Constitution

American constitutions elevate civic discourse. The constitutions of the United States and of the several states provide the facilities to express our important disagreements in common terms and with agreed-upon premises. They transform the personal opinions people regularly express about contentious questions into technical legal arguments through impersonal terms of art that represent shared commitments. Slogans about abortion become arguments about the meaning of equal protection and due process. Accusations of hate speech, fake news, political correctness, and identity politics give way to dialogue about freedom of speech, freedom of the press, and liberty of conscience.

Had the U.S. Constitution accomplished nothing else in American history, the need to reason together about our fundamental civic and political commitments would alone have justified the Framers’ efforts in 1787. The Constitution helps us to do what the Federalists proposed, to arrange our legal and political affairs by reflection and choice rather than accident and force.

Yet we might wonder whether the common terms of the Constitution are still available for our use. Indeed, we have reason to worry that devices of constitutional discourse have worn shabby and frail. After all, they are very ancient artifacts.

In this two-part essay I argue that the terms of our Constitution are intelligible when understood in the context of the centuries-old legal tradition from which they are taken. Today I explain why efforts to render intelligible the U.S. Constitution’s terms without reference to the tradition fall short. I examine four efforts to interpret the Constitution and argue that they succeed only insofar as they point to important aspects of our legal tradition. In tomorrow’s conclusion I describe the legal tradition that supplied our constitutional terms and how those terms can be understood and used in both legal and civic discourse.

The Novelty Constitution

Many legal and political scholars think that the terms of the U.S. Constitution are now antiquated and obsolete. They think that our constitutional terms need to be updated and reinvented from time to time. They task federal judges, especially the justices of the Supreme Court of the United States, with inventing new constitutional innovations to meet the ever-changing demands of a progressive society.

The Constitution is, in this view, what the judges say it is, and the judges must declare the terms of the Constitution anew according to the evolving moral awareness of America’s most sophisticated elites. An influential proponent of this view was the late Justice William Brennan. Its most famous proponents today are Justice Ruth Bader Ginsburg and, on certain issues, now-retired Justice Anthony Kennedy.

On this view, the Constitution is often referred to as a living constitution. Now thriving independently of the dead-hand control of the white men who wrote it, the Constitution produces new norms and transforms old institutions into new sources of liberty and self-actualization. But this is a false conception. The Constitution itself isn’t doing any of those things. Judges are doing those things in the name of the Constitution as they invent new constitutional terms and premises. A better name for this view is the Novelty Constitution.

The Novelty Constitution has obvious weaknesses. First, it is both undemocratic and unrepublican. The Novelty Constitution cuts down and pushes out the customary and statutory laws that the people have chosen to govern themselves and the institutions that mediate between people and governments. Less obviously, but just as significantly, the Novelty Constitution undermines the legitimacy of the very judges who are charged with inventing it. When judges invent the same law from which they derive their judgments, their judgments rest not in law but in the innovative minds of the judges themselves. The Novelty Constitution is thus legally arbitrary. The judges who invent new meanings for the Constitution can identify no reason why we should respect their judgments as lawful judgments. They give us only judicial fiat, sometimes covered in shadow by abstractions that emanate from penumbras of the Constitution and, sometimes, just Because I Said So.

The Enduring Constitution

In response to the Novelty Constitution a second interpretation of constitutional terms arose in recent decades. This is sometimes called textualism, though that is not quite an apt description. This view is attributed to the late Justice Scalia. Scalia described our constitution as an “enduring constitution.” Supreme Court nominee and appellate court judge Brett Kavanaugh eloquently defended the Enduring Constitution during his recent confirmation hearings.

On this account, the 1787 Constitution resolves some questions and leaves others for the people to resolve from time to time through their democratic and republican institutions, especially state legislatures and the Electoral College. The states ratified that Constitution in 1789 and the states and people together have amended it from time to time as just and necessary. We are all bound by the words of that document, or perhaps by the public meaning that citizens would have attributed to those words in the years 1787 to 1789 and at the times of the several amendments.

Unlike the Novelty Constitution, the Enduring Constitution is actually grounded in our constitutional traditions, especially the traditions of written charters, stretching back to Magna Carta, and of legislative sovereignty, stretching back at least as far as the English revolution. The Enduring Constitution restores the primacy of democratic institutions, especially legislatures, and the positive laws that they enact. And it restores judicial legitimacy. A judge who correctly applies the Constitution and relevant statutes as written to the case at hand, and only to the case at hand, and who does not invent new constitutional terms to govern the case, is practicing law. The judgment that such a judge produces has a legitimate claim to be a lawful judgment. And insofar as the rest of us have an obligation to respect and obey the law, we have an obligation to respect and obey the judge’s judgment.

Nevertheless, if limited to text then the enduring constitution also is limited in important ways. Our Constitution is neither a Socratic dialogue nor a merger and acquisition agreement. It does not define its own terms. For example, the constitutional text secures freedom of speech. What is speech? Does it include lies and perjury and defamation? The text does not tell us. The Constitution secures private property against unlawful taking by the government. But what is property? Does it include patents and trademarks? And what is a taking? Is the government taking my property when it changes land-use rules to forbid me from making a use of my land that I was making before? The text of the Constitution does not answer these questions. Yet the Constitution requires us to answer them, for officials are obligated to obey the Constitution in cases that implicate freedom of speech, private property, and many other constitutional terms. So we must necessarily look outside the text.

Proponents of the Enduring Constitution acknowledge this. So, Judge Kavanaugh says that judges should read the text of the Constitution in light of “history and tradition.” But which history? And what traditions? And what do they have to do with the Constitution?

Justice Scalia gave us a hint in an opinion he wrote interpreting the Takings clause of the Fifth Amendment. When the government changes a rule of land use to prohibit me from doing something that I was free to do before, such as build my dream home on the beach, that rule change is a taking, and the government owes me compensation, if my proposed land use—building my house—was not already prohibited by the “background principles of nuisance and property law.” Whatever those are, one must know them before one can competently interpret the terms “property” and “taking” in the Fifth Amendment. (More about this in tomorrow’s essay.)

The Axiomatic and Natural Rights Constitutions

A third interpretation of the Constitution would have us look to something called axioms of the natural law. A constitutional axiom is a self-evident principle of reason that all rational people know to be true. Good judges and citizens can and should deduce from the axioms correct conclusions about our most contentious public questions. So, though the text of the Constitution does not mention abortion or marriage, for example, those issues can be worked out like geometry proofs from the axioms. This view of our constitutional terms may be called the Axiomatic Constitution.

Like proponents of the Novelty Constitution, proponents of the Axiomatic Constitution are not bound by the text. Nor do they concern themselves with our constitutional tradition. They understand tradition to be indeterminate. Hadley Arkes, the most influential proponent of the Axiomatic Constitution, insists that appeals to tradition “elicit rival, contentious readings of the historical record.” Instead of arguing from text or tradition, we should reason about constitutional questions in straightforward moral terms.

Related to the Axiomatic Constitution is the Natural Rights Constitution. Its proponents appeal to natural rights that are expressly mentioned in the Constitution, especially life, liberty, and property. Our Constitution includes those terms, and though it does not define them and does not expressly indicate the nature or extent of the duties they impose, it makes express provision for their security by due process of law. The presence of those terms in the Constitution and their use in political discourse from the time of the Founding until well into the twentieth century suggests that we should read the Constitution with a presumption of liberty as against state action and that we should favor republican forms of government.

The Axiomatic and Natural Rights Constitutions have much to commend them. Perhaps counterintuitively to some today, they strengthen our ancient Constitution by rendering it even older and more universal than the text signed in Philadelphia in 1787. Our Constitution is, in these interpretations, thousands of years old. They appeal to human reason without the mediation of particular human laws. Their terms are all found not in the Constitution of 1787 to 1789 but rather in the record of all humankind and all human history.

The Axiomatic and Natural Rights Constitutions can legitimately claim authority in that aspect of our constitutional tradition known as the law of reason. That law has existed as long as humans have inhabited the earth. The capacity for practical reason is what makes human beings distinctly human. It is the evidence and ground of our unique and inherent dignity. Natural rights also are uniquely human and universally human inheritances, which ground our claims to freedom and secure the conditions of our flourishing. And these universal reasons are part of the American constitutional tradition from the beginning.

Nevertheless, the Axiomatic Constitution suffers from weaknesses. For one thing, it deprives us of common terms and premises to have a dialogue together about what, exactly, our constitutional commitments are. People of good faith reason to different conclusions about matters of civic importance. The axioms fail to deliver on the promise of a constitution. Unmediated by the customary norms and institutions that are foundational to our constitutional orders, and by the positive laws that our legislatures enact, natural law axioms by themselves do not very often do the work assigned to them.

For another thing, the Axiomatic Constitution is not the Constitution of the United States. Nor is it the constitution of any of the several states. Axiomatic constitutional reasoning is only contingently connected to actual constitutions. It is not a constitution that axiomatic thinkers are interpreting but rather anthropological and moral facts. Those facts tell us more about abortion than they do speech or property.

The Natural Rights Constitution also has limitations. Abstract rights such as life, liberty, and property are important political ideals, but they do not do any legal work by themselves. Unless and until they are given specific form and content as concrete duties that obligate particular people to do or refrain from doing particular things, they are not sufficient operative terms to solve any practical problems or resolve any cases or controversies.

Our Constitutional Tradition

Setting aside the Novelty Constitution as self-defeating, the other three alternatives are attractive insofar as they point toward sources of law that are outside the document we call the Constitution, but which the Constitution declares and incorporates by reference. In other words, to understand and employ the terms of the Constitution one must know the law. The law of the Constitution is neither mere text, nor axioms, nor political ideals. In tomorrow’s essay I’ll discuss it.

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