Maxim #4: THE FOUNDER'S CONSTITUTION AND OURS

MAXIM & REPARTEE #4. AN INTERLUDE: THE FOUNDER'S CONSTITUTION AND OUR CONSTITUTION

"I regret that I have but one life to give for my country." Nathan Hale

The deliberations of the Constitutional Convention of 1787 were held in strict secrecy. Consequently, anxious citizens gathered outside Independence Hall when the proceedings ended in order to learn what had been produced behind closed doors. The answer was provided immediately. A Mrs. Powel of Philadelphia asked Benjamin Franklin, "Well, Doctor, what have we got, a republic or a monarchy?" With no hesitation whatsoever, Franklin responded, "A republic, if you can keep it."

“A text should not be construed strictly, and it should not be construed leniently; it should be construed reasonably, to contain all that it fairly means." Antonin Scalia

"As a guide in expounding and applying the provisions of the Constitution the debates and incidental decisions of the [Constitutional] Convention can have no authoritative character." James Madison

So far, so good. But the story doesn’t end there. It never did and it never will.

HISTORICAL CAVEAT (or, Why this discussion is necessary?!):

During the Constitutional Convention (1787) and in the debate accompanying its subsequent ratification in 1788, the meaning and implications of the words of the Constitution of the United States were fiercely debated. And, during the entire subsequent history of our nation, the meaning of the words and phrases of the Constitution have continued to be a matter of both political and legal debate. I will term such debate — whether it takes place in the home, the barber shop, the legislature or the courts — Constitutional Discourse.1 In these discussions of the Constitution’s meaning, the opinions of the United States Supreme Court are given a somewhat privileged status as its decisions are usually accepted as legally binding upon public officials. However, as the United States Constitution by its own terms is said to represent the will of the people — it is clear that the Supreme Court has no final stand alone authority. Most, if not all, of the major political conflicts in our nation’s history have to some extent involved changes in our understanding of our Constitutional compact — changes which frequently, but not invariably have resulted in Constitutional Amendments. Indeed, the country’s Great Civil War of 1861-1865 seems but to underline the principle that unless there is a tolerable harmony between Constitutional implementation and the will of the people as a whole, we can expect nothing other than diasaster.

As others have argued before and as I will argue below, the determination of the proper meaning of the text of the Constitution of the United States involves us from time to time in trying to determine the legal and political meaning today of ambiguous, value-laden words and phrases of broad and indefinite range. The words and phrases of the original Constitution as written in 1787 and adopted in 1788 have had very different meanings for many different people before they were placed in the Constitution, during the period when the original Constitution was framed and adopted, and in the subsequent two centuries plus of our nation’s history. I will argue with illustrations below and in the main text that this is just as true for those who assert that “their fidelity is to the Original Constituion” as for those who openly admit that our Constitutional standards change over time. However, before we address the complexities and controversies of Constitutional interpretation, we will first look at some of the inherent complexities of words in a more generalized, but less controversial context. This more neutral approach may make it easier to confront honestly and with less hypocrisy the genuine Constitutional conflicts that have arisen and will continue to arise under our Constitution.

FOUR EXAMPLES OF ENDURING PROBLEMATICS OF CONSTITUTIONAL INTERPRETATION: The Arbitrer, the Bill of Rights, Slavery and the Penal Justice System, the Inexorable flow of History

One of the first and most obvious sources of conflict was the role of the Supreme Court itself. According, to Marbury v. Madison, The Supreme Court was the appointed arbitrer of Constitutionality. [Cf. Federalist #78] However, it was noted then and it has been noted since that Federal and State officials swear or affirm an oath to the United States Constitution — not to the Supreme Court or to the Supreme Court’s interpretation of the Constitution. Free citizens — whether they are marked by honorable intent or impure motives or, usually, both — will continue to contend about the Constitution and the role of the Court as long as they consider the Constitution to be their own Constitution and one worthy of respect. When the interpretation of the Constitution is no longer contentious, we will no longer have a Constitutional Republic or Democracy.

A second sources of conflict was the reach of the Bill of Rights. One reasonable interpretation of the National Bill of Rights is that they represented a national consensus as to a more or less minimum standard for identifying rights using the premises of either common or natural law. Thus in a Georgia case, State ex rel. v. Lavinia (1858), Georgia Chief Justice Lumpkin extended the great right of common law against double jeopardy to ‘slaves and free persons of color’ even though the specific words had not been placed in the Georgia Constitution. However, at the Federal level in Barron v. Mayor of Baltimore (1833) the Marshall Court restricted the applicability of the Biil of Rights to their limitations upon Federal Government. While this was arguably more in keeping with the intentions of many of those who adopted the Bill of Rights, the issue did not die down then and has continued to rise for two centuries. After the Civil War, the Framers of the 14th Amendment took particular care to place language in the Amendment, tracking both the Barron and Dred Scott decisions, which would provide the full blessings of liberty to all citizens of any state. These right and priviledges, including those rights articulated in the Bill of Rights, were to beyond the reach of governmental power. Whether we discsuss the ancient right to bear arms or more recent articulations of gay rights, the Constitution’s text does not resolve the Constitutional controveries.

And, of course, as in any honest discussion of the meaning of the Constitution we are inevitably brought to the great conflict engendered by the institution of chattel slavery. At the Constitutioal Convention in Philadelphia the Framers skirted the actual issues involved in the Great Compromise over slavery between the South and the North with circumlocutions. The word “slavery” does not appear in the original Constitution of 1787. Instead references to slavery employ such terms as “other person” or “Person held to service” in the enumeration and runaway slave provisions.2 Once the War ended, national interest and passion subsided. The auction block and pursuit of run-away slaves ended, but full emancipation to the extent that de jure legal equality extended to the recognizable descendents of slaves was to take another century. And, of course, in 2008 we have elected our first Afro-American President. The younger generations are especially uninterested in the racial stereotypes of the past. Still, even today we have a judical system whose criminal justice practices are still utterly stained by the residues of slavery. Scalia, more than any other justice, tends to frame questions in terms of fidelity to principles most forcefully articulated by a Southern white tradition which 400 years ago gave dark-skinned slaves death penalties for crimes which Caucasians might not even be charged. In the lifetimes of people living today, a number of illegal lynchings and racially motivateded imurderers have occured. More sytematically, legally scanctioned imprisonment and executions of African-Americans have occurred out of all proportion to the number and severity of actual crimes committed.

In other sections and in the Appendices we will examine both the explicit changes in our understanding of the Constitution’s words and the even more important — and frequently unconscious — presuppositions we bring to our interpretations of the Constitution. The broad sweep of important Constitutional clauses, the residual conflicts obscured by Constitutional compromises, and the inevitable mark of history — a history which has changed how we now understand the various and even contradictory implications of various provisions — all these influences have created an open text with various and even conflicting “reasonable constructions.” Reading and understanding the actual 27 Constitutional Amendments is only the beginning of understanding how today’s Constitution has changed. Almost anyone who is faithful to the Spirit of 1787 will nevertheless look at the Constitutional text with different eyes than those of the Framers. While in almost all cases, the original Constitutional text is an appropriate place to begin an interpretation, but in only a few of those cases that reach the Supreme Court will a consensus of 1787 or 1789 be dispositive in resolving the current conflict.3 [F 4-3] That is because, firstly, the notion that there was indeed an identifiable Framer’s consensus is itself a legal fiction. And, secondly, judges and citizens alike cannot avoid giving different weight and reach to the pertinent underlying factors.


FOOTNOTES & CASES

FOOTNOTES
[Footnote 4-1] An even more formal definition of” Constitutional Discourse” is found at the end of Appendix B.

[Footnote 4-2] Re: The enumeration of slaves — “Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons.” (Article I, Section 2)
Re: Runaway slaves — “No Person held to Service or Labour in one State, under the Laws thereof, escaping into another, shall, in Consequence of any Law or Regulation therein, be discharged from such Service or Labour, but shall be delivered up on Claim of the Party to whom such Service or Labour may be due.” (Article IV, Section 2)

[F 4-3] To begin with, if a case can be definitively decided by ‘simply’ inquiring as to (A) “What does the Constitutional text say?” and (B) “How did the Framers interpret the Text when the clause or amendment was adopted?”, then the case is not likely to get pass the lower Courts. Even if such a case were to reach the Supreme Court, it would normally be one of those “non-controversial” 8-1 or 9-0 decisions. More frequently, a contemporary case may be decided by referring to an opinion or approach consonant with the views of an important subset of Framer opinion. Thus, religion cases from the 1940’s to the 1970’s contained frequent references to Madison’s Remonstrance and The Virginia Statute for Religious Freedom penned by Thomas Jeffferson. The Conservative justices of today’s court (esp. Scalia and Thomas) avoid references to Jefferson’s phrase “wall of separation” like the plague. They will occasionally refer to some of Madison’s or Jefferson’s political statements about religious holidays, but their opinions and citations are much closer to those of John Adams, Joseph Storey, or even the Frenchman de Tocqueville and other religious conservatives than to the core beliefs of, say, Madison, Paine, or Jefferson.


CASES CITED:
Barron v. Mayor of Baltimore, 32 U.S. (7 Pet.) 243 (1833)
Marbury v. Madison, 1 Cranch 137 (1803)
State ex rel. v. Lavinia, 25 Ga. 68, 68, 72 (Lumpkin)