Making Our Democracy Work (13 page)

This public habit has obvious advantages. An effective judiciary, capable of enforcing contracts honestly without corruption, helps, as much as any other institution, to encourage economic investment, and thus growth and prosperity. An increasingly diverse American population has come to realize the importance of resolving serious differences through law, hence following a court’s conclusion even when it is unpopular. Furthermore, experience abroad, say in pre–World War II Europe, makes clear that majorities can become tyrants, and it thereby underlines the importance of making effective the Constitution’s efforts to protect minorities and to protect individual liberty—even when their enforcement is unpopular.

But that is not the end of the matter. The examples also show that the public’s trust cannot be taken for granted. Public trust does not follow automatically from the existence of a written constitution. It must be built, and once built, it must be maintained. To maintain the necessary
public confidence in the Court’s decisions, each new generation has certain obligations. It must learn how our constitutional government works, become aware of its history, be encouraged to participate in the democratic process, and observe the preceding generation as it builds on those public customs.

This must happen primarily through civic education. But the Court too has responsibilities. Abraham Lincoln, after reading the
Dred Scott
decision, said he doubted that the public was always obligated to follow the Court’s “last word.” To help maintain the public’s confidence, the Court must exercise its power of judicial review in a manner that honors the lessons of the past.
Part II
will examine some of the ways in which I believe the Court itself can help accomplish this difficult but critical task.

T
HE
C
OURT HAS A SPECIAL RESPONSIBILITY TO ENSURE THAT
the Constitution works in practice. While education, including the transmission of our civic values from one generation to the next, must play the major role in maintaining public confidence in the Court’s decisions, the Court too must help maintain public acceptance of its own legitimacy. It can do this best by helping ensure that the Constitution remains “workable” in a broad sense of that term. Specifically, it can and should interpret the Constitution in a way that works for the people of America today. Here I explain why and how it can do so.

Part II discusses what the Court must do to deserve and to maintain the public trust it has earned. I argue that the Court can best fulfill this obligation through rulings and interpretations that help the Constitution work in practice. This requires applying constant constitutional principles to changing circumstances. I argue that in making difficult decisions, the Court should recognize and respect the roles of other governmental institutions—Congress, the president, executive branch administrators, the states, other courts—and it should take account of the experience and expertise of each. I describe several distinct approaches, each specific to a particular institution, that I believe will help the Court build productive governmental relationships—but without the Court’s abdicating its own role as constitutional guardian.

In addition, I argue that the Court should interpret written words,
whether in the Constitution or in a statute, using tools that help make the law effective in practice. Judges should use traditional legal tools, such as text, history, tradition, precedent, and purposes and related consequences, to help find proper legal answers. But courts should emphasize certain of these tools, particularly purposes and consequences. Doing so will make the law work better for those whom it affects.

Taken together, the following chapters describe a set of pragmatic approaches to interpreting the law. I do not argue that judges should decide all legal cases pragmatically. Rather, I suggest that by understanding that its actions have real-world consequences and taking those consequences into account, the Court can help make the law work more effectively and thereby better achieve the Constitution’s basic objective of creating a workable democratic government. At the same time, the Court can help maintain the public’s confidence in the legitimacy of its interpretive role. This point, which returns full circle to
Part I
, is critical.

M
AINTAINING PUBLIC ACCEPTANCE
requires a Constitution that works well for the people today. The Court can help achieve this objective in two ways. First, the Court should reject approaches to interpreting the Constitution that consider the document’s scope and application as fixed at the moment of framing. Rather, the Court should regard the Constitution as containing unwavering values that must be applied flexibly to ever-changing circumstances. The Court must consider not just how eighteenth-century Americans used a particular phrase but also how the values underlying that phrase apply today to circumstances perhaps then inconceivable. Second, when the Court interprets the Constitution, it should take account of the roles of other governmental institutions and the relationships among them.

The Constitution must work in both senses, that is, the Court must interpret the law in ways that help that document work well for Americans, and the public must accept the Court’s decisions as legitimate. But this book is essentially about the Court. Thus this part will focus on how the Court might go about producing workable interpretations of the law. (Before continuing to read this part, the reader should now turn to
Appendix B
and review how the modern Court works.)

S
OME JUDGES BELIEVE
the best way to interpret the Constitution, while building the public’s confidence in the objectivity of the Court’s decisions, lies in an approach called originalism. The judges who follow this approach look to history to discover what those who wrote the Constitution most likely thought about the content and scope of a constitutional phrase, and they interpret the phrase accordingly. The Sixth Amendment, for example, says that in “criminal prosecutions, the accused shall enjoy the right … to be confronted with the witnesses against him.” Does this phrase mean that a child witness, testifying against an accused abuser, must face the accused directly in court—despite the trauma this may cause the child and the potential that he or she will be intimidated by the accused’s presence? Does it mean that a prosecutor cannot introduce into evidence the dying statement (obviously made out of court) of a murder victim identifying the accused?
¹

An “originalist” judge looks to history to find not just the basic values that underlie this Sixth Amendment provision but also, say, descriptions of eighteenth-century trial practice that will answer these questions by supporting one view or another of the confrontation clause’s present-day requirements.

Originalists hope that judges will find answers to difficult constitutional questions by proceeding objectively, almost mechanically, to examine past historical fact. An objective approach will reassure the public that the Court’s interpretation reflects what history shows to have been the framers’ detailed intentions, not the judge’s own. And the Court will thereby build and maintain continued public support for its decisions.

This historical approach, however, suffers serious problems. For one thing, it is less “objective” than one might think. When courts consider difficult questions of constitutional law, history often fails to provide specific objective directions. The legal question at hand may be narrow. Relevant historical material may be difficult to find. As Justice Robert H. Jackson pointed out, “Just what our forefathers did envision,
or would have envisioned had they foreseen modern conditions, must be divined from materials almost as enigmatic as the dreams Joseph was called upon to interpret for Pharaoh.”
²

If there is no historical material directly on point, what should the Court do? Create historical “assumptions” designed to draw answers from a historical void? Or refuse to answer a question of practical importance (for example, involving fair trials for those accused of murder) on the basis of a skimpy, uncertain record of eighteenth-century practice? If the Court is to decide major constitutional questions on the basis of history, then why not ask nine historians, rather than nine judges, to provide those answers?

Moreover, even when faced with major historical questions, historians can disagree. For example, the Second Amendment says that 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.” Does a local law prohibiting handgun possession violate this amendment? Over the years historians have filed briefs in the Court tracing the amendment’s history, but they often disagree about the significance of different pieces of historical evidence. How should the Court treat this kind of disagreement? In 2001 historians awarded the coveted Bancroft Prize to a professor whose book purported to prove that few eighteenth-century Americans possessed firearms. That fact made it unlikely that the Second Amendment was written to protect handgun owners. Yet after investigation cast doubt on the prizewinner’s data, the historians, in 2002, took the prize away.
³

Nor does historical clarity about how the framers believed the provision applied in the eighteenth century always tell us whether or how they thought it should apply in the future. We can be certain that the framers intended the word “two” in the phrase “two Senators from each State” to have a single, fixed reference over time. But we cannot be so certain about the scope of the word “commerce” in the Constitution’s grant to Congress of the power to “regulate Commerce … among the several States.” Indeed, in all likelihood the framers intended the scope of that word to expand, covering more and more items, as commerce itself expands, as technology advances, and as commercial activities in one state increasingly affect those in another.
⁴

Consider, too, the Fourteenth Amendment’s equal protection
clause—the clause that forbids states to deny any person “equal protection of the laws.” Those who wrote this clause in the 1860s knew that segregated schools existed at the time, even in the federal District of Columbia. Suppose they believed that enactment of the clause would
not
require integration of the District’s then-segregated schools. Must we then follow those beliefs, say in 1954, when the Court decided, in
Brown
, that the clause forbids segregated schools?

In 1954 the Court did not stick to what the authors of the clause might have thought in this specific respect in the 1860s. By 1954 it had become clear that racial segregation, including school segregation, had denied minority groups the very equality that the clause sought to assure them. And the Court concluded that the authors of the clause would have preferred an interpretation that furthered its vital broad objective (that is, assuring equality) over an interpretation based on a particular factual belief (that school segregation was consistent with equality), which, if respected, would have subverted their more basic egalitarian purposes. Thus, we find an answer to the legal question at issue in
Brown
by applying not particular historical beliefs but the
values
that underlie the equal protection clause. We apply those values to the circumstances of segregation as they existed in 1954. We can reasonably believe that the authors of the clause would have approved our doing so.

Even if originalist answers were easy to uncover and free from historical ambiguity, I doubt that following the originalist approach could help maintain public support for the Court as an institution. After all, the framers could not have been aware of the automobile, television, the computer, or the Internet, but as most originalists themselves will agree, the commerce clause must apply to commerce in those matters. More than that, if we could find a specific historical explanation of the equal protection clause authors’ thinking on school segregation, then we should still ask why, given the basic purposes and values underlying the clause, we would place controlling weight on that historical answer. What would the public today think of a Constitution that denied, on the basis of race, the right to attend an integrated school?

Indeed, what would the public think of a Constitution that (through an eighteenth-century-based interpretation of the confrontation
clause) prevented a prosecutor from introducing into evidence a murdered wife’s pre-death account of her husband’s threats of violence—in a case accusing him of her murder? What would the public think of an Eighth Amendment (which forbids “cruel and unusual punishments”) that would permit flogging in the navy today on the ground that flogging was common practice on eighteenth-century ships?
⁵

Can originalism gain the public’s respect? Can it help ensure an affirmative response to practical questions of public acceptance and implementation? Or would it instead instill public doubt because those who interpret the Constitution do so on a basis foreign to their own lives, producing answers that show that the Constitution’s protections have become increasingly irrelevant? In a word, why would people want to live under the “dead hand” of an eighteenth-century constitution that preserved not enduring values but specific eighteenth-century thoughts about how those values then applied?