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The Robert E. Henderson Constitution Day Lecture:

Constitutional Values and Constitutional Interpretation

 

By

 

Bradley A. Smith

John M. Ashbrook Center for Public Affairs

September 17, 2001

 

            On September 10, 2001 most Americans went to bed under the placid assumption that, despite a minor economic downturn, our nation’s main political concerns in the morning would be battles over arcane budget bills, campaign speech regulations, or possibly a patient’s “Bill of Rights.”  On September 11 we suddenly found ourselves faced with a whole new set of issues, issues so important that they at once made us forget about partisan legislative battles of summer, while at the same time making many of us vaguely embarrassed for the extreme rhetoric and emotion that may have characterized them.  Indeed, we now find ourselves facing nothing less than the momentous issue of war, at once the most important and terrifying decision a nation as powerful as ours can make.

            Even as the events of September 11 dominate our thoughts, it is appropriate, and important, that we gather here tonight to celebrate Constitution Day.  It is important for one because the disruption of our normal lives is, in and of itself, a part of what our attackers hope to accomplish.  As President Bush emphasized in his comments on the evening of the attack, “[t]he functions of our government continue without interruption… and the American economy will be open for business as well.”  In short, even as we respond to the attack, we must carry on with daily life.  Indeed, even as we mourn their loss, we owe it to those who died not to let the terrorists win by making those of us who live cower in fear.

            But it is also important that we gather here tonight because it is in troubled times such as these that we ought to give special consideration the blessings of our Constitution.  Each Fourth of July we celebrate our nation’s Declaration of Independence with fireworks, parades, and celebrations.  It is appropriate that we do so, for perhaps no document, certainly no secular document, has inspired so many people around the world, and no nation has done as much for the cause of human freedom as that which was born in July of 1776.  But the Declaration, while proclaiming a new nation and its aspirations, did not actually create a system for governing that new nation.  And we know that the first system that was created for the nation, the Articles of Confederation, was considered a failure.  It was the Constitution that established what has been a permanent governing framework for the United States.  It is through our system of Constitutional governance that we seek to meet the aspirations of the Declaration.  Yet except for a few gatherings such as this, Constitution Day passes unnoticed by Americans.  There are no parades, no fireworks, no picnics, and no public holiday to commemorate the September 17, 1787 signing of the Constitution.  But it is this document that has provided the basic governing structure of our nation as we have risen from an underdeveloped backwater of civilization to become the driving force of the world economy and, even more importantly, a beacon of freedom the world over.  It is a durable document that has nevertheless seen us through prosperity and recession, through two world wars, through the burning of our capital in the War of 1812, and through a momentous Civil War.  And it is this document, whose stated purposes include to “provide for the common defense,” that will be called on to guide our public officials, and indeed our nation, through the coming times.  How we interpret the Constitution, especially in times of difficulty such as these, may radically affect whether or not we continue to achieve another of the stated goals of the document: to “secure the Blessings of Liberty to ourselves and our Posterity.” 

I wish to suggest that the best way to begin any exercise of constitutional interpretation is through a simple reading of the text.  If this seems obvious, it is only because most of you have not yet been schooled in the law, for this style of interpretation, sometimes called “formalism,” is widely scorned in legal circles.

            In 1962, the noted Constitutional theorist Alexander Bickel wrote, “Judicial review is the principled process of enunciating and applying certain enduring values of our society.” Bickel was writing during the high point of judicial prestige and activism – midway between the Warren Court’s 1954 decision in Brown v. Board of Education, and Richard Nixon’s 1969 appointment of Warren Burger as Chief Justice.  The former convinced many Americans of the appropriateness of looking to the judiciary rather than to the elective branches to take positive steps to cure societal problems; the latter event marked the beginning of a slow turning away from the activism of the Warren Court.  Bickel’s attitude reflected the times: an enormous confidence that the judiciary could – indeed was uniquely qualified to – discern the great and enduring values of American society and apply them to public policy through its interpretation of the Constitution. 

            Now of course the Constitution must be interpreted.  It is a brief document compared, for example, to Volume 11 of the Code of Federal Regulations, which covers regulations promulgated by the Federal Election Commission, and it cannot possibly answer with specificity every precise question that arises under it.  But to many observers, it seemed that the Warren Court specifically, legal academia in particular, and the judiciary in general had by the mid-1960s gone far beyond mere interpretation of the document to a wholesale, rather random substitution of the values of individual judges for the actual language and structure of the Constitution.  The “neutral priniciples” by which commentators such as Bickel argued the courts could inject values into the Constitution and decide constitutional cases were, for observers such as Professor and later Judge Robert Bork, anything but “neutral.”  These critics argued that the judicial interposition of values in judicial review was inconsistent with both democratic rule and constitutional government, because unelected judges were, in fact, simply substituting their personal values for those of popularly elected legislatures and the language of the Constitution itself.  Throughout the 1970s and 1980s a battle raged, in the academy, in the courts, and in the political realm, over whether it was possible for judges to consider values in judicial review without the Constitution itself becoming a meaningless document to be manipulated by the judges charged with enforcing it.  The battle perhaps reached its apogee with the 1987 nomination, and Senate defeat, of Judge Bork for a seat on the Supreme Court.  After that defeat Judge Bork resigned his seat on the Court of Appeals and went on to argue that judicial review should be abolished entirely.  Meanwhile, perhaps because the leading scholars of time had said all they had to say on the subject, the debate over whether judges should look to values when interpreting the Constitution receded into the background.  Even the conservatives who once argued for a very narrow scope to judicial review seemed more comfortable with the notion of values being injected into legal decisions, if only because the rejection of the Bork nomination seemed to have settled the question as a political matter for the time being, or perhaps because a Supreme Court with more conservative values seemed to make the question less pressing.  By the early 1990s the debate had shifted from whether judges should consider values in interpreting the Constitution, back to how they should determine which values should provide content to Constitutional law.

Unlike Judge Bork and some other conservatives, I believe strongly in judicial review – that is, in the power of the judiciary to declare some government actions to be unconstitutional.  Were the courts to surrender this power, the only restraints on the actions of the legislative and executive branches would be the self-restraint of those branches themselves.  The system established by the founders, with three co-equal branches of government serving as checks on each other, would essentially become a two-legged stool.  The Constitutional limits on executive and legislative power, both through the Constitution’s enumerated powers and its protection of enumerated and unenumerated rights – and by unenumerated rights I am referring primarily to the Ninth Amendment – would be subjected only to the constraints of a democratic electoral process, and the electorate would be free to ignore the Constitution at any time.  If that is to be the case, one might ask: “Why have a Constitution at all?”  So my goal is not to disparage judicial review, but to return our focus to the question of when values should come into play in Constitutional interpretation, whether the interpreter is a judge, other government official, or a simple citizen.

            In arguing for a more formalist approach to interpretation, I do not suggest that the text holds plains answers to every constitutional question.  There are many times when the language of the Constitution is sufficiently imprecise so as to allow for considerable interpretation, and in so doing we might look to values that seem inherent in the Constitution’s structure or language.  And there are some issues – though fewer than many think - that may be far enough removed from any direct language of the Constitution that the proper constitutional analysis can only come from extrapolating “values” from the Constitution, or even injecting contemporary values into it.  But far too often the issue of values seems to be raised first, and this leads to the substitution of “constitutional values” – which are too often merely the values of the judge or commentator himself - for the Constitution itself.  What I wish to suggest is not that values have no role in interpretation, but rather that values should come into play only after the formal language and structure of the Constitution have failed to provide a definitive answer.  The advantage of formalism, even when it does not provide the definitive answer to a question, is that it narrows the range of possibilities, thus constraining judges from substituting their values for the commands of the Constitution itself.

It is popular in some circles to suggest that the Constitution is a “living document,” that it changes with the times to reflect our contemporary understanding of the goals set forth in the original language.  But unlike the Declaration of Independence or the Gettyburg Address, for example, the Constitution is not a statement goals, of aspirations or principles.  Such aspirational documents deal with broad, sweeping principles: for example, “life, liberty, and the pursuit of happiness;” or “government of the people, by the people, for the people.”  Though inspiring, these sweeping declarations of values can, nonetheless, mean radically different things to different people. 

The Constitution is different. The men who gathered in Philadelphia in 1787 were not there for the grandiose task of proclaiming a new nation; they were not attempting to put into words thoughts and ideas to inspire their countrymen to meet the burdens of war.  They were not old, not most of them, anyway, but nor were they romantic.  Young revolutionary leaders such as Hamilton and Madison had grown into middle-aged politicians, and they looked upon their task at the Constitutional Convention unsentimentally.  Madison’s Federalist Number 10, explaining how the new Constitution would avoid the evils of faction, is only the most frank acknowledgement that they viewed their job as being the creation of a stable government capable of overcoming the worst instincts of human nature and fulfilling the promise of the revolution.  The Convention never specifically debated any conception of the good life, and such conceptions are largely taken for granted, rather than argued, in the ratification debates.  These were practical men performing the concrete task of establishing a functioning government.

The Constitution, then, is the organizing document for the federal government, and as such it is a procedural document.  In language that is both concise and relatively precise, it establishes a government with three independent branches, explains how each branch is to be selected, and states the powers accruing to each particular branch.  In short, it is a blueprint for government.  It does not declare itself in favor of any particular values, other than “a more perfect union,” a sweeping phrase that literally encompasses anything the reader wants it to.  To put it another way, the Constitution specifically avoids declaring its values explicitly, instead taking the position that, whatever values we may seek to pursue, here is the means by which we have agreed to pursue them.  Battles over values are purposely relegated to the background.  The Constitution can be summed up thusly: “Here is how our government is constituted, and here are the powers it is given or expressly denied."  In most cases, no appeal to values is necessary to interpret the document or the powers that it gives or denies to the government. 

            This is not to say that values were not important to the Founders.  The Federalist Papers, the insightful political tracts written by Hamilton, Madison, and Jay in support of the adoption of the Constitution, regularly defend the Constitution as the best means to fulfill the values its critics brought to the debate.  Without doubt the government created by the document reflects certain values, including suspicion of government power, respect for private property and the sanctity of contracts, fear of domination by either an inherited nobility or the mob.  Nevertheless, the authors did not argue that the Constitution proclaimed values.  Rather, they argued that the specific provisions of the Constitution were the best means to the various ends, or values, of its critics.  Once we recognize that the Constitution is not an aspirational document or statement of principles, but rather that it is more akin to a road map, an instruction manual, or a blueprint reminding us of how we have agreed to govern ourselves in pursuit of whatever we deem valuable, the range of possible interpretations of its language is sharply constrained.

            In many ways, we can compare the Constitution to an architect’s plans for a building – to keep this mundane, let us say the headquarters for a Mexican food restaurant chain.  The architect’s plans for the building will reflect many values.  The architect will draw up his plans with the intent that the building be able to bear certain loads; that it have a certain amount of working space; that it have fine corner offices for high ranking executives, and a fašade that gives it a faintly Southwestern appeal, even though the building may be located far from the southwest.  The architect may have to balance the desire for a large multi-purpose room with the need for individual office space; cost with quality, and so on.  These various goals will reflect certain practical necessities, but also various values of the corporation.  Does the company value large open spaces and physical appearance?  Put in an attractive atrium.  Does it value thrift?  Reduce luxurious touches, or cut down the size of individual offices.  Does it value employee comraderie?  Create large break areas or add a fitness room.  And so on it will go.  In the end, the architect’s plans will reflect these various values, often making trade-offs between them.  The builder will later be called on to interpret these plans, and he may be called on to correct workmen who are not following the plans, but doing so will only rarely, if ever, require him to inquire into the values behind the plans. 

Constitutional interpretation is not so mechanical as reading a blueprint, but it is not so different as some would like it to be.  The preamble to the document hints at goals of the architect, but in such broad terms as to be almost meaningless – “Justice;” “Tranquility;” “the Blessings of Liberty.”  But it is not usually necessary to appeal to these vaguely stated values in order to understand and to properly interpret the Constitution.

Let’s start with a simple example.  Article I, Section 4 of the Constitution provides in part that “Congress shall assemble at least once in every year.”  First, note the rather pedestrian, bureaucratic nature of the provision.  The phrase “Congress shall assemble at least once in every year” is not calculated to inspire men to risk their lives in battle, or to serve as evidence submitted as justify one’s actions to “a candid world,” and one will not find such bland phrases in the Gettysburg Address or the Declaration of Independence.  Even this dull provision, however, might be subject to interpretation: Does it mean that Congress shall meet at least once each calendar year?  Or that Congress cannot let more than 365 consecutive pass without meeting?  I suppose one could debate this, but I doubt that even our most creative constitutional scholars could interpret this section to mean that Congress may meet just once every two years.  Thus the plain, formal language of the Constitution goes far toward answering the question.  Certainly this should be our starting point for discussion, rather than beginning with a discussion of values.

            Now let's look at a tougher case.  The Second Amendment states clearly, “the right of the people to keep and bear Arms, shall not be infringed.”  This is a rather straightforward statement that the government may not prohibit the people from owning firearms.  So why is the Second Amendment so controversial?  The main reason appears to be that it contains a justification clause: in it’s entirety, the Amendment reads, “A well regulated Militia, being necessary to the security of a free state, the right of the people to keep and bear Arms, shall not be infringed.”  Thus many of those whom, for policy reasons, oppose the operative clause of the Second Amendment – “the right of the people to keep and bear Arms” -  focus on the alleged Constitutional values involved – “a well regulated Militia, being necessary to the security of a free state,” to argue that the operative clause is either limited or extinguished.  If the alleged constitutional values are no longer served, goes the argument, then perhaps the right no longer exists. 

            Now while the Second Amendment is the only part to the Bill of Rights to contain a justification clause, Professor Eugene Volokh of UCLA has demonstrated that such clauses were extremely common in the constitutions and bills of rights adopted in the states around the time that the U.S. Constitution was adopted.  Indeed, Professor Volokh has uncovered literally dozens such examples.[1]  Thus no great portent should be given to the appearance of a justification clause in the Second Amendment.  More importantly, the Amendment does not say “so long as a militia is necessary” the right to bear arms shall not be infringed.  It says “the right of the people to keep and bear arms, shall not be infringed,” period.  Nor does it refer only to “the right of the militia to keep and bear arms.”  To put it another way, the justification for a command is not the command itself.  Those who passed and ratified the bill of rights did not merely say that, “Congress shall provide for a well regulated militia.”  They did not simply prohibit Congress from “interfering in the security of a free state.”  Rather, they chose a very specific means to achieve their goal: “the right of the people to keep and bear Arms shall not be infringed.”  In a proper system of constitutional law, it is up to the people, through their elected representatives, in the manner provided by the Constitution, and not to the courts, to determine if the right is now obsolete, or too broad to meet its justification, or otherwise no longer necessary.

            It is not just in discussing the Second Amendment, with its justification clause, that many attempt to substitute the alleged “values” of the Constitution for the Constitution itself.  Even where the Founders did not elaborate on the values behind particular provisions, many seek to use alleged constitutional values, which they are confident that they can detect, to supplant actual constitutional language.  Let us consider, for example, the First Amendment, and my particular area of expertise, campaign finance law.  Most scholars and judges now agree that limits on campaign contributions and expenditures limits speech.  For example, a law limiting how much one may spend to publish newspapers would directly limit the amount of speech. A law limiting what could be spent to operate a broadcast station could be used to shut down such operations.  Similarly, to limit campaign contributions and expenditures limits political speech.

Those who favor restrictions on campaign spending and giving, however, frequently invoke constitutional “values” in support of the constitutionality of such limits.  For example, recently the actor William Baldwin, President of the Creative Coalition, a Hollywood political group, explained the Coalition's support for restrictions on campaign giving and spending in terms of values, rather than the actual language of the Constitution.  “One of the goals underpinning freedom of speech," he said, "is the belief that the more ideas are available in the public arena, the more informed and vibrant society will be.” He then went on to argue that more regulation of political speech will give, “the voices of all Americans … a better chance to be heard.”[2]  Similarly, Burt Neuborne, a Professor at NYU School of Law and formal Legal Director of the American Civil Liberties Union, recently wrote in the Northwestern University Law Review that speech limitations can be justified under the First Amendment if we will only give that Amendment a “democracy-centered reading” and come to realize, as the professor has, that limits on some political speech might be “better for democracy.”[3]

            The First Amendment seems particularly prone to such substitution of values for text.  In his recent book Republic.Com, Professor Cass Sunstein of the University of Chicago argues that we might want to require web sites to post links to other web sites with opposing views, in order to assure a diversity of voices is heard.[4]  Owen Fiss of Yale has argued that the courts should order governments to subsidize views that, in the judge’s opinion, are not adequately heard.[5]

            Well, almost certainly among the values underlying the First Amendment were the desire to promote responsible, democratic self-government, and a desire to see that ideas were available in the public arena.  But what men such as Mr. Baldwin and Professors Neuborne, Sunstein, and Fiss overlook is that the Constitution specifically provides for how that is to be done – by keeping government out of the business of policing speech: “Congress shall make no law … abridging the freedom of speech,” is what the relevant part of the document says.  Not “Congress shall enact appropriate legislation to ensure that the voices of all Americans are heard.” Not “Congress shall provide for that regulation of political campaign speech which best promotes a functioning of democracy,” nor even “Congress shall take necessary measures to assure that Americans are exposed to a wide range of competing views.”  The primary purpose of the Constition is not to lay out goals, but to set rules on how they are to be achieved.  So if campaign contributions are a form of speech then one cannot trump the Constitution’s specific language by an appeal to one’s own policy judgments and still claim to be following the Constitution.  These men are like the builder who reports back to the architect, “I know that you valued a really spectacular entrance to the building, so I junked your plan for an open atrium and put in a large fountain instead.  That’s what makes for a spectacular entrance.”  The builder’s value judgment may be a good one, but he is usurping the rightful prerogatives of the owner and architect to make such decisions. 

Values matter in constitutional interpretation, but they cannot be used as substitutes for the plain commands of the document itself.  To a remarkable degree, the document tells us how the values implicit in it are to be achieved.  Once we substitute our own vision of how to achieve those values, we can no longer claim to be following the document.  Instead, we are just enacting what we consider wise policies or legislation – something that needs no Constitution.  In the cases I’ve given, of the First and Second Amendments, the language of the document makes clear that whatever the values are, they are to be achieved not by affirmative government action, nor even merely by limiting federal power, but by denying government the power to regulate these activities.  Note that I am not suggesting that at this stage in the process we search for some original intent.  Rather, I am suggesting that in most cases, at least in the first instance, there is no need to consider values at all.  The document speaks for itself. 

This does not mean that there is no room for Constitutional interpretation.  For example, one may still question the meaning of the word “Arms” as it appears in the Second Amendment.  Clearly there is some right of citizens to bear arms, and it does not hinge on their being members of the Militia, or on whether or not the bearing of arms, in the opinion of judges or the legislature, still contributes to the security of a free state.  But does the term “Arms” necessarily include every type of weapon known to man, including private nuclear weapons?  Or we might ask what it means to “infringe” the right.  Does this mean that citizens may not be required to relinquish their arms before boarding a commercial aircraft?  The answers to these questions are far beyond the scope of this discussion.  I simply mean to show that the issue of interpretation, and the possibility of regulation, for better or worse, doesn’t go away simply by directing our focus to the concrete language of the document rather than to nebulous “constitutional values.”  We may yet need to get into values interpretation.  But some interpretive options clearly go off the table.  It is not possible, for example, to argue that the Second Amendment right to bear arms pertains only to the militia, or that ownership of handguns can be banned. 

            Similarly with campaign finance reform.  Do limits on campaign contributions “abridg[e] the freedom of speech”?  Some have argued that they do not.  But most observers, including Professors Neuborne, Sunstein, and Fiss, concede that limits on campaign spending and contributions abridge the right of freedom of speech.  That being so, they cannot then argue that other Constitutional “values” in some way nullify or alter the actual provisions of the constitution, which state that Congress shall make no law abridging that freedom.

            Thus far I have addressed, as examples, situations wherein some have attempted to substitute alleged constitutional values for the more explicit commands of the Constitution.  But as I have indicated, even in these situations, there is sometimes room for interpretation, and here is where values might more properly filter into the discussion.  However, even in these situations, the recognition that the Constitution is a procedural, rather than an aspirational document will shape interpretation of any given provision.

            Let me make an extended example.  Article I of the Constitution establishes the legislative branch, with some specificity, including provisions for such mundane matters as when the Congress shall convene (a date later changed by the 20th Amendment); when Yeas and Nays shall be recorded and published; that it shall publish its proceedings; and how members shall be compensated.  This type of nitty gritty is completely absent from our aspirational political tracts, and no one would suggest that an appeal to “values” can overrule these provisions.  Similarly, Articles II and III in some detail establish the executive and judicial branches, and specify their power and authority.  The remaining articles are even more oriented to detail; Articles IV and VI take care of various miscellaneous matters, including provisions for administering territories, adding new states, and requiring oaths of office; while Article V provides a procedure for amending the Constitution, i.e. for changing the rules – something which would seem unnecessary were it an aspirational, rather than a governing document.

Within this format, Article I, Section 8, lists specific powers of the Congress, including such things as the power to coin money, to establish post offices, and to issue patents.   Now some of these clauses are open to interpretation.  However, if we are reading the document not as some broad, nebulous statement of values, but as a specific, concrete plan for government, we will be less likely to conclude that the provision allowing Congress to collect taxes and to “provide for the common Defense and general Welfare” can serve as a sweeping invitation to Congress to do most anything, regardless of whether the power is included in the specifically enumerated powers that follow.  Moreover, when we read the document as a specific plan for government, we are more likely to see such clauses as further qualifiers on government power – that is, in carrying out the powers granted below, it must act for the common Defense and general welfare, rather than for the benefit of select groups or individuals. 

Similarly, the power to “regulate Commerce with foreign nations, and among the several States, and with the Indian Tribes,” cannot serve as a grant of plenary power to the congress to fulfill whatever values congress, judges, or even a majority of the electorate, view as important at that particular time.  For while it is true that, in some vague sense, every action each of us undertakes might have some faint effect on commerce, the Constitution does not suggest that Congress may regulate any activity “affecting” commerce.  Nor could such a broad interpretation be the meaning of the document, or there would be no need for the careful enumeration of other powers.   Once Constitutional provisions are interpreted so broadly, we no longer have a blueprint for government operation, but simply an empty vessel into which different groups can pour their policy preferences.

Furthermore, reading the document to construe enumerated powers narrowly helps the document to make sense in a way that reading it as a broad license to attempt to achieve certain values does not.  If we read the spending and commerce clauses broadly, so as to give Congress plenary, or near-plenary, powers, not only do we make the enumerated powers seem redundant, but we bring the Constitution regularly into conflict with itself, with its specific prohibitions on power.  Such prohibitions are found most often, though not exclusively, in the Bill of Rights.  Reading the document so as to bring its different sections into regular conflict makes little sense when we consider what the document attempts to do – provide a governing framework.  If, on the other hand, the government’s powers are relatively few and specifically enumerated, conflicts between the powers of the government and the rights of individuals are few.  Indeed, the authors of the Federalist papers argued that no Bill of Rights was necessary precisely because the government had no power to do those things it would be prohibited from doing by a Bill of Rights.  Wrote Alexander Hamilton, “Why, for instance, should it be said that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed?”

Today it is largely forgotten, but at the core of the Constitution is this principle of limited, enumerated powers.  Indeed, prior to the Supreme Court’s 1995 decision in United States v. Lopez,[6] commentators had generally interpreted the Commerce Clause and the Spending Power of the Constitution so broadly as to give congress plenary power to do whatever it saw fit.  To suggest otherwise was, as Boston University Law Professor Randy Barnett puts it, “considered antiquated and beyond the bounds of respectable academic discussion.”[7]  But Lopez illustrates the way in which a narrow interpretation of the government’s enumerated powers avoids needless conflict within the document.  In Lopez, the Supreme Court struck down a federal law mandating gun free zones around public schools, as going beyond Congress’s power under the Commerce Clause, and authorized no where else in the Constitution.  By analyzing the matter as a question of congressional power, the Court never even needed to analyze the statute for its Second Amendment implications.

Why then, are so many so eager to interpret the Constitution not in terms of its actual provisions, but in terms of its alleged values?  The answer is, oddly enough, that these people are not particularly enamored of many of the values that seem to have motivated the drafting of the original document and its first ten amendments, the Bill of Rights.  How so?  Well, let’s begin by looking at the values that seem to be behind the provisions of the Constitution. 

            One such value seems to be that of national unity, as found in the full faith and credit clause; in the power given to the federal government to conduct foreign policy; in the requirement of Article I, Section 8 that all Duties, Imposts and Excises be uniform throughout the country; in Article I, Sections 9 and 10, providing that no duties shall be laid on exports from one state to another, and that intrastate shipping not be subject to duties; and in Congress’s express power to establish post roads, among others.  Another value, it seems to go without saying, is representative democracy. So far, so good.  There are not many around today who quarrel with such values.

            But certain other motivating values seem more controversial today.  Among the values influencing the document are an attachment to private property, and a tremendous distrust of government power.  These values are discussed at length in the Federalist Papers, and reflected in many provisions of the document, including the due process and procedural protections of the Third, Fourth, Fifth, Sixth, Seventh, and Eighth Amendments, Article I, Section 9, and Article III, Section 2; the explicit protections of private property and contract found in Article I, Section 10 and the Fifth Amendment; and most of all in the document’s careful division of power, with its three co-equal branches, bi-cameral legislature, and painstakingly enumerated limits on the jurisdiction of the courts and the powers of the Congress. 

            The idea of a government with limited, enumerated powers, is at the core of the Constitutional scheme.  You see, the Constitution doesn’t just create a Congress, an executive, and a Supreme Court, and instruct them to work generally to build a “more perfect union,” or to “secure the Blessings of Liberty.”  Instead, it specifically states what powers they shall have to pursue these and other objectives, such as “promot[ing] the general welfare.” 

            In other words, viewing the Constitution as a blueprint for government, the first question to ask when considering the constitutionality of government action is: does the government have the power to take this action?  Only if the answer is yes need we go to the second question: is there some other provision of the Constitution – usually in the bill of Rights – that limits this power?  To answer these questions, we frequently do not need to turn to Constitutional values.  Indeed, if we must reach a discussion of values, it may be a warning that we are at the edge of constitutional authority.  If we begin with an appeal to “values,” it is usually a sign that the Constitution does not, in fact, authorize government to take the actions in question.

            Thus the procedural provisions of the Constitution, including enumerated powers, frustrate those who favor strong government efforts to promote certain values.  But because the Constitution arguably reflects many different values, if the focus of the discussion can be moved off the document itself and to the alleged values behind it, it becomes easy to pick and choose.  There is always some value that one can argue trumps the actual language.  Find a sympathetic judge, and the race is on.  This is sometimes called a “living constitution,” but what it actually does is make for a dead constitution, as the provisions of the Constitution no longer serve to delineate the powers of the government.  Those powers may thus change at any time, with no prior notice, and without the consent of the people.

            Where does this leave us?  If I am correct about enumerated powers, much of what the federal government, if not the states, have been doing for the past 70 years is unconstitutional.  Let’s take the example of my agency, the Federal Election Commission.  Where is the authority for Congress to regulate campaign contributions and spending at all?  The assumption seems to be that it exists in Article I, Section 4, which gives Congress the right to determine the “Times, Places, and Manner of holding Elections for Senators and Representatives….” Well, campaign finance regulations do not relate to the time or place for holding an election.  That leaves "manner."  Do contribution and spending restrictions, in any normal sense of the phrase, refer to the “manner of holding” an election?  I think not.  The manner of holding an election seems to relate to how candidates might be placed on the ballot, how votes are tallied, how voters prove their eligibility to vote, and so on.  The speech that goes on before an election is not usually thought of as part of the manner of holding the election.  That is why we refer to “campaign” ads, not “election” ads, and why we call the weeks leading up to the election the “campaign,” as opposed to the “election,” the latter being a singular event which takes place on “election day.”   If it were otherwise, even our dinner table conversations could be regulated as part of the “manner” of the election.  True, such regulation might be checked by the First Amendment.  Yet were there no First Amendment whatsoever, would anyone truly think that regulating dinner table conversation was a reasonable interpretation of the phrase, “manner of holding an election?”  And if so, wouldn’t that again be substituting a plenary power for an enumerated one?  The "manner of holding" an election cannot refer to everything that in some way "relates to" or "affects the outcome of" an election.  Just to drive home the emptiness of the claim that this clause is the legitimate source of federal power to regulate campaign spending and contributions, note that we also regulate campaign contributions and spending in presidential races.  Yet at the presidential level the Constitution doesn’t even give Congress the power to regulate the manner of the election.  Rather, Article II, Section 1 grants Congress only the power to “determine the Time of chusing the Electors, and the Day on which they shall give their votes.”  There is no provision for regulating the “manner” of the election at all.  So where is the power to regulate campaign spending and contributions? 

            Yet what is done is done.  The fact is, we do have a federal government that engages in widespread activities exceeding the powers granted it in the Constitution, and these activities have been blessed by the courts and accepted, it seems, by substantial majorities of the people.  We are, in that sense, already living in a post-Constitutional era.  The problem, then, for those of us who favor the original conception of the Constitution, is to get to back to a government of enumerated powers from the position in which we now find ourselves.  Is there any going back, once settled expectations have been based on decisions of what the Constitution allows the government to do?  Millions of individuals work for governments in bureaus for which there is no solid constitutional authorization; millions more have built careers, bought homes, planned savings, and planned lives on the basis of government programs which we might believe cannot be justified under a plain reading of the Constitution.  These settled expectations cannot and should not be changed overnight – indeed, it will take years.  How can this be done? 

            First, we ought not ask too much of the courts.  It would be all but inconceivable that the Supreme Court, even with favorable changes in its personnel, might suddenly reverse 70 years of jurisprudence with one fell swoop, and such an action would likely cause societal chaos.  Prudence alone dictates that changes must be long and gradual.  Decisions such as Lopez are a positive start, reminding us of the concept of enumerated powers and slowly, incrementally, driving the government back to its proper domain.  We need to build on Lopez and other limiting decisions, even while recognizing that the courts cannot go too far or too fast.  Similarly, appointed officials in the executive branch must not ignore those laws that exceed the enumerated powers of the Constitution, but we can and ought to give them their narrowest possible interpretation, and in the most extreme cases it may even be necessary to refuse to enforce them on constitutional grounds – for executive branch officials, too, take an oath to uphold the Constitution - at least until ruled otherwise by the courts. 

            But the real change must come from Congress and, more, the people themselves.  Our Senators and Representatives should interpret their mandates narrowly, and take their constitutional oaths seriously.  Each proposed action in congress really ought to begin with a debate over its constitutionality, and members should vote against legislation for no other reason than their personal belief that it exceeds Congress's enumerated powers.  But this means electing representatives who will recognize and abide by the constitutional limits on their authority, and this will only take place on a broad scale when the electorate decides it is important to elect such individuals. 

             A few years back Rasmussen Research asked the following question in one of its polls:

The Constitution gave limited powers to the federal government.  Sometimes, Congress passes laws that are not authorized by the Constitution.  For example, there is no authority in the Constitution for the federal government to pay for 100,000 additional teachers in local school systems.  In a case like this, is it better for Congress to follow the Constitution or is it better for Congress to pay for 100,000 additional teachers?[8]

By a 51-36 percent margin, with 13 percent undecided, respondents answered that it was better for Congress to provide federal funding for 100,000 additional teachers in local schools than to follow the Constitution.

            For the 51 percent, it is clear, the Constitution simply has no real relevance to the dilemmas of today.  We need to convince these people that the Constitution still matters, and that even when it limits government’s ability to take actions they believe might help them achieve short-term values and goals – such as hiring a few teachers with federal rather than local taxes – adherence to its procedures will help us all to achieve and maintain our long-term values and goals.  The authors of the Federalist papers devoted far less space to explaining the procedures of the Constitution than they did to explaining why those procedures would serve to implement the values of the people.  We must likewise demonstrate to Americans that they gain long-term benefits from adherence to the Constitution. 

            With this in mind, let me return to the events of September 11, 2001.  If the restrictions of the Constitution are considered so irrelevant when it comes to something as relatively trivial as hiring a few teachers with federal, rather than local, taxes, what possible relevance can this huge block of the public see in the Constitution in times of crisis or war?  Even before the first sun had set on the wreckage of last Tuesday’s attack, numerous commentators were telling us that we had best be prepared to give up some of our freedoms in the coming fight.  I watched on television as a former Secretary of State trotted out the hoary old line, “the Constitution is not a suicide pact.” 

            Now I agree that the Constitution is not a suicide pact, but I’m not sure that the speaker and I were drawing the same conclusions from that.  That former Secretary of State seemed to suggest, though I hope I was misinterpreting him, that we ought to be prepared to ignore the Constitution in the coming months, or even years, in order to prosecute the war on terrorism and terrorists.  I, on the other hand, believe it especially important in times such as these to recognize the importance of the Constitution and the freedoms it preserves.

            The framers were not unaware that wartime may require some sacrifices of liberty.  Indeed, in drafting the Constitution and the Bill of Rights, they drew heavily on state constitutions, many of which were adopted during wartime – the Revolutionary War, to be precise, when hostile armies were tramping across the states and burning farms and homes.  So the procedures of the Constitution were made sufficiently flexible to serve in war as well as in peace.  One clear and non-controversial example of the wartime flexibility built into the Constitution appears in the generally forgotten Third Amendment.  You know it by heart, I’m sure: “No soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner prescribed by law.”  This Amendment has not, we must admit, been the most prominent part of the Constitution to date, and even now it is hard to foresee it having much application.  But note that the document anticipates sacrifices in wartime – while no soldier may be quartered without the permission of the owner in peacetime, in times of war such quartering may occur.  However, note also that the Constitution tempers this authority – such quartering may only take place in a manner prescribed by law, assuring both even-handedness in application and ultimate accountability to the electorate, so it cannot become an excuse for tyranny.

            Or consider Article I, Section 9, which states that writs of Habeas Corpus “shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.”  Again, allowance is made for war.

            Other provisions in the Constitution are flexible as well.  The Fourth Amendment, for example, does not prevent all government searches and seizures, but only “unreasonable” searches and seizures.  What is unreasonable in times of peace may be reasonable in times of war.  Similarly, the Amendment provides that warrants shall only be issued on “probable cause.”  What constitutes “probable cause” may also vary in times of war or national emergency.  The Fifth Amendment requirement of Due Process, and the Eighth Amendment prohibition on “excessive” bail are other provisions with a built in flexibility to account for the times and circumstances.  What is “excessive?”  What process is due?  The Constitution's basic structure also serves to provide a solid foundation for a government that can both wage war and respect our liberties.  For example, the Constitution provides for Congress to maintain armed forces, and for the President to serve as Commander in Chief.  By placing the President in command, the Constitution assures civilian control and yet avoids the confusion of and delay of control by committee; by providing that Congress supports an army and maintains the navy it assures ultimate popular control.

            I am not saying that the time has necessarily come to redefine what constitutes a “reasonable search,” or anything else in these provisions.  But I do want to point out that these and other provisions allow the government the flexibility and power to take measures that may be necessary in time of war, but which would not be allowed in times of peace.  At the same time, they provide mechanisms to retain popular control over the government and military, and to assure review of government actions, and protections of civil liberties, by an independent judiciary.  Further, the Constitution makes clear that there remain some things that the government simply cannot do, even in war.  Its searches must still be reasonable given the circumstances.  Bail cannot be routinely denied.  The government may not disarm the populace.  It may not muzzle political discussion.  It may not do away jury trials, and it may not seize private property without just compensation, among other things.  The Constitution still stands as a barrier to tyranny, and to the governmental usurpation of powers that we have decided, even in wartime, our government ought not have.  This barrier is especially important in times of war or crisis, when passions run hottest, and long-term interests are sometimes forgotten.  Of course, it is only a paper barrier, and as such will sometimes fail.  The Constitution will sometimes fail to prevent such acts, as it did with the passage of the Alien and Sedition Acts, or the internments of U.S. citizens on the basis of ancestry in World War II, both of which occurred during times of external conflict.  But when times return to normal it serves to remind us of the proper limits on government power, and of the liberties that we hold dear.  And thus while the Constitution is a procedural document, it is because of its procedural nature that it remains, especially in wartime, both a reminder and a guardian of the values we hold dear.

            So this is a particularly apt time for us to gather and take a moment to celebrate the Constitution.  And I hope that each of us will use this occasion to rededicate ourselves to protect not only our country, but our Constitution, against all enemies, both foreign and domestic, in the coming struggle.



[1] Eugene Volokh, The Commonplace Second Amendment, 73 N.Y.U. L. Rev. 793 (1998).

[2] Letter from William Baldwin to Jamie Sneider, August 2001 (available at http://www.jaimesneider.com/baldwinvsneider.html).

[3] Burt Neuborne, Toward a Democracy Centered Reading of the First Amendment, 93 Nw. U. L. Rev. 1055 (1999).

[4] Cass R. Sunstein, Republic.Com (Princeton University Press 2001).

[5] Owen Fiss, Why the State?, 100 Harv. L. Rev. 781, 791-92 (1987).

[6] United States v. Lopez, 514 U.S. 549 (1995).

[7] Randy E. Barnett, Necessary and Proper, 44 UCLA L. Rev. 745, 747 (1997).

[8] Rasmussen Research, Poll: 51% Would Vote for Constitution Today, July 20, 2000 (available at http://www.portraitofamerica.com/html/poll-1066.html).