Take the Whole Constitution Seriously: How to Restart a National Conversation on Federal Judges and Constitutional Meaning

07/24/2009 05:12 am ET | Updated May 25, 2011
  • Peter M. Shane Author, 'Connecting Democracy' and 'Madison's Nightmare'; Law professor, E-democracy researcher

America's legal progressives are wondering how to re-engage the American public more generally in a serious discussion about the role of federal judges in interpreting the Constitution. This was a question much discussed, both formally and informally, at last week's superb annual convention of the American Constitution Society - a national organization of progressive lawyers, judges, law professors, law students, and policy makers.

Public conversation about constitutional interpretation happens most noisily on the occasion of Supreme Court vacancies, but it has come to take on a predictably depressing character. As if to rival the "Less filling!" - "Tastes great!" debate, partisans of the right and left take to shouting, "Judicial Activism!" and "Living Constitution!" at one another. Unfortunately, this shorthand rarely frames any meaningful popular discussion.

Debates framed by this figurative (and sometimes actual) shouting match are depressing, in part, because the labels are so obviously incomplete. "Judicial activism" is intended to stoke anxiety that our jurists are infusing their decisions with subjective judgment. They are striking down popularly enacted legislation based on mere personal preference. The attack thus implicitly imagines what plainly does not exist, namely, a Constitution that can be applied to difficult cases without some values-laden interpretation of the text.

The Left response to "judicial activism" is thus to demonstrate two things convincingly: First, interpretation and, thus, judgment are inevitable in constitutional controversies. Second, conservative jurists are no less activist than liberal jurists. "Judicial activism" is little more than a mask for policy objections to controversial judicial decisions -- objections pretending to focus on method, rather than outcome. (Thus, in the 1930's, it was the Left crying, "Judicial Activism!" as the Supreme Court struck down elements of the early New Deal.) Unfortunately, this exposé is not an affirmative defense for any substantive vision of the Constitution.

The "living Constitution" riposte is rooted in a more sustainable idea. Chief Justice John Marshall expressed that idea nearly two centuries ago. He described the Constitution as a document "intended to endure for ages to come, and consequently to be adapted to the various crises of human affairs."

This slogan is not so much wrong, however, as indeterminate. It is fine to say that the text of the Constitution ought to be read most sensibly to accommodate the felt necessities of every era. Thus, for example, we might infer from the Constitution in 2009 a ban on discrimination by sexual preference. If that is so, however, why would it be illegitimate to cede to the federal executive branch in 2009 unprecedented powers to cope with new forms of international terrorism? Don't we have felt necessities on that score, too?

In a similar vein, progressives frequently assert that the felt necessities of our age include respect for individual autonomy in making end-of-life medical decisions. Couldn't another subset of those necessities legitimate the indeterminate incarceration of people merely thought dangerous to society?

The answer to these puzzles, of course, is that progressive exponents of the "living Constitution" also believe, like their right-wing counterparts, that the Constitution entrenches enduring values that ought not to be interpreted out of existence. The living Constitution is not infinitely malleable. Unfortunately, the "living Constitution" slogan simply does not help in distinguishing what ought to be adaptable from what ought to be inviolate.

In short, this is why the "Judicial Activism!"/ "Living Constitution!" shouting match is so unsatisfying. It is easy enough for progressives to show the emptiness of the judicial activism charge, but that demonstration falls short of an affirmative program. "Living Constitution" does not supply that program.

Hence, I would like to offer a different slogan that progressives might embrace. Conservatives might accept it, too, even as they debate its precise content. My five-word mantra would be, "Take the Whole Constitution Seriously."

Justice Scalia, for example, argues that the Constitution ought to be read according to how the average person at the time of its adoption would have understood its language. So, why should Americans accept a judicial reading of the Constitution that ignores the guarantee of a "republican form of government?" Why erase the promise of the Ninth Amendment that the people retain rights beyond those explicitly stated in the text? Why do judicial defenders of executive prerogative against congressional regulation ignore the constitutional provision that empowers Congress to make all laws necessary and proper for carrying executive power into effect?

Likewise, why do we acquiesce in a judicial reading of the Fourteenth Amendment's guarantee of "privileges or immunities" of national citizenship that gives us nothing more than the right to travel from our hometown to the nation's capital? Why submit to an untested understanding of the Fourteenth Amendment that the "persons" guaranteed due process and equal protection include corporations? The last time I checked, corporations were not even mammals.

Perhaps most obviously, why are constitutional rights conventionally interpreted with no direct reference to the preamble of the Constitution, which declares the document's purposes: "to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to . . . posterity?" If fidelity to the original Constitution is the obligation of conscientious jurists, shouldn't this text count?

Many years ago, law professor Jeff Powell wrote about the revolutionary role of the constitutional text. In his words: "[T]he objectivity of the text, the undeniable existence in the document of [the First Amendment] and other words, has played an indispensable role in our constitutional history. Far from having always been a bulwark of the status quo, the Constitution-as-historical-document has played a radical, indeed a revolutionary part in the unfolding of American society."

This is the idea I would like now to inject into popular debate. Let progressives say to their right-wing challengers, "You want to stick to the text. Let's start with, 'We, the People . . .,' and go on from there." I suspect that there are in the text seeds of a more robust liberty and a deeper equality than most Americans would guess. Maybe we can even get past, "Less filling!" "Tastes great!"