The Audacity of Hope (11 page)

So how should we understand our Constitution, and what does it say about the current controversies surrounding the courts? To begin with, a careful reading of our founding documents reminds us just how much all of our attitudes have been shaped by them. Take the idea of inalienable rights. More than two hundred years after the Declaration of Independence was written and the Bill of Rights was ratified, we continue to argue about the meaning of a “reasonable” search, or whether the Second Amendment prohibits all gun regulation, or whether the desecration of the flag should be considered speech. We debate whether such basic common-law rights as the right to marry or the right to maintain our bodily integrity are implicitly, if not explicitly, recognized by the Constitution, and whether these rights encompass personal decisions involving abortion, or end-of-life care, or homosexual partnerships.

And yet for all our disagreements we would be hard pressed to find a conservative or liberal in America today, whether Republican or Democrat, academic or layman, who doesn’t subscribe to the basic set of individual liberties identified by the Founders and enshrined in our Constitution and our common law: the right to speak our minds; the right to worship how and if we wish; the right to peaceably assemble to petition our government; the right to own, buy, and sell property and not have it taken without fair compensation; the right to be free from unreasonable searches and seizures; the right not to be detained by the state without due process; the right to a fair and speedy trial; and the right to make our own determinations, with minimal restriction, regarding family life and the way we raise our children.

We consider these rights to be universal, a codification of liberty’s meaning, constraining all levels of government and applicable to all people within the boundaries of our political community. Moreover, we recognize that the very idea of these

universal rights presupposes the equal worth of every individual. In that sense, wherever we lie on the political spectrum, we all subscribe to the Founders’ teachings.

We also understand that a declaration is not a government; a creed is not enough. The Founders recognized that there were seeds of anarchy in the idea of individual freedom, an intoxicating danger in the idea of equality, for if everybody is truly free, without the constraints of birth or rank or an inherited social order—if my notion of faith is no better or worse than yours, and my notions of truth and goodness and beauty are as true and good and beautiful as yours—then how can we ever hope to form a society that coheres? Enlightenment thinkers like Hobbes and Locke suggested that free men would form governments as a bargain to ensure that one man’s freedom did not become another man’s tyranny; that they would sacrifice individual license to better preserve their liberty. And building on this concept, political theorists writing before the American Revolution concluded that only a democracy could fulfill the need for both freedom and order—a form of government in which those who are governed grant their consent, and the laws constraining liberty are uniform, predictable, and transparent, applying equally to the rulers and the ruled.

The Founders were steeped in these theories, and yet they were faced with a discouraging fact: In the history of the world to that point, there were scant examples of functioning democracies, and none that were larger than the city-states of ancient Greece. With thirteen far-flung states and a diverse population of three or four million, an Athenian model of democracy was out of the question, the direct democracy of the New England town meeting unmanageable. A republican form of government, in which the people elected representatives, seemed more promising, but even the most optimistic republicans had assumed that such a system could work only for a geographically compact and homogeneous political community—a community in which a common culture, a common faith, and a well-developed set of civic virtues on the part of each and every citizen limited contention and strife.

The solution that the Founders arrived at, after contentious debate and multiple drafts, proved to be their novel contribution to the world. The outlines of Madison’s constitutional architecture are so familiar that even schoolchildren can recite them: not only rule of law and representative government, not just a bill of rights, but also the separation of the national government into three coequal branches, a bicameral Congress, and a concept of federalism that preserved authority in state governments, all of it designed to diffuse power, check factions, balance interests, and prevent tyranny by either the few or the many. Moreover, our history has vindicated one of the Founders’ central insights: that republican self-government could actually work better in a large and diverse society, where, in Hamilton’s words, the “jarring of parties” and differences of opinion could “promote deliberation and circumspection.” As with our understanding of the Declaration, we debate the details of constitutional construction; we may object to Congress’s abuse of expanded commerce clause powers to the detriment of the states, or to the erosion of Congress’s power to declare war. But we are confident in the fundamental soundness of the Founders’ blueprints and the democratic house that resulted. Conservative or liberal, we are all constitutionalists.

So if we all believe in individual liberty and we all believe in these rules of democracy, what is the modern argument between conservatives and liberals really about? If we’re honest with ourselves, we’ll admit that much of the time we are arguing about results—

the actual decisions that the courts and the legislature make about the profound and difficult issues that help shape our lives. Should we let teachers lead our children in prayer and leave open the possibility that the minority faiths of some children are diminished? Or do we forbid such prayer and force parents of faith to hand over their children to a secular world eight hours a day? Is a university being fair by taking the history of racial discrimination and exclusion into account when filling a limited number of slots in its medical school? Or does fairness demand that universities treat every applicant in a color-blind fashion? More often than not, if a particular procedural rule—the right to filibuster, say, or the Supreme Court’s approach to constitutional interpretation—helps us win the argument and yields the outcome we want, then for that moment at least we think it’s a pretty good rule. If it doesn’t help us win, then we tend not to like it so much.

In that sense, my colleague in the Illinois legislature was right when he said that today’s constitutional arguments can’t be separated from politics. But there’s more than just outcomes at stake in our current debates about the Constitution and the proper role of the courts. We’re also arguing about how to argue—the means, in a big, crowded, noisy democracy, of settling our disputes peacefully. We want to get our way, but most of us also recognize the need for consistency, predictability, and coherence. We want the rules governing our democracy to be fair.

And so, when we get in a tussle about abortion or flag burning, we appeal to a higher authority—the Founding Fathers and the Constitution’s ratifiers—to give us more direction. Some, like Justice Scalia, conclude that the original understanding must be followed and that if we strictly obey this rule, then democracy is respected.

Others, like Justice Breyer, don’t dispute that the original meaning of constitutional provisions matters. But they insist that sometimes the original understanding can take you only so far—that on the truly hard cases, the truly big arguments, we have to take context, history, and the practical outcomes of a decision into account. According to this view, the Founding Fathers and original ratifiers have told us how to think but are no longer around to tell us what to think. We are on our own, and have only our own reason and our judgment to rely on.

Who’s right? I’m not unsympathetic to Justice Scalia’s position; after all, in many cases the language of the Constitution is perfectly clear and can be strictly applied. We don’t have to interpret how often elections are held, for example, or how old a president must be, and whenever possible judges should hew as closely as possible to the clear meaning of the text.

Moreover, I understand the strict constructionists’ reverence for the Founders; indeed, I’ve often wondered whether the Founders themselves recognized at the time the scope of their accomplishment. They didn’t simply design the Constitution in the wake of revolution; they wrote the Federalist Papers to support it, shepherded the document through ratification, and amended it with the Bill of Rights—all in the span of a few short years. As we read these documents, they seem so incredibly right that it’s easy to believe they are the result of natural law if not divine inspiration. So I appreciate the temptation on the part of Justice Scalia and others to assume our democracy should be treated as fixed and unwavering; the fundamentalist faith that if the original understanding of the Constitution is followed without question or deviation, and if we

remain true to the rules that the Founders set forth, as they intended, then we will be rewarded and all good will flow.

Ultimately, though, I have to side with Justice Breyer’s view of the Constitution—that it is not a static but rather a living document, and must be read in the context of an ever- changing world.

How could it be otherwise? The constitutional text provides us with the general principle that we aren’t subject to unreasonable searches by the government. It can’t tell us the Founders’ specific views on the reasonableness of an NSA computer data-mining operation. The constitutional text tells us that freedom of speech must be protected, but it doesn’t tell us what such freedom means in the context of the Internet.

Moreover, while much of the Constitution’s language is clear and can be strictly applied, our understanding of many of its most important provisions—like the due process clause and the equal protection clause—has evolved greatly over time. The original understanding of the Fourteenth Amendment, for example, would certainly allow sex discrimination and might even allow racial segregation—an understanding of equality to which few of us would want to return.

Finally, anyone looking to resolve our modern constitutional dispute through strict construction has one more problem: The Founders and ratifiers themselves disagreed profoundly, vehemently, on the meaning of their masterpiece. Before the ink on the constitutional parchment was dry, arguments had erupted, not just about minor provisions but about first principles, not just between peripheral figures but within the Revolution’s very core. They argued about how much power the national government should have—to regulate the economy, to supersede state laws, to form a standing army, or to assume debt. They argued about the president’s role in establishing treaties with foreign powers, and about the Supreme Court’s role in determining the law. They argued about the meaning of such basic rights as freedom of speech and freedom of assembly, and on several occasions, when the fragile state seemed threatened, they were not averse to ignoring those rights altogether. Given what we know of this scrum, with all its shifting alliances and occasionally underhanded tactics, it is unrealistic to believe that a judge, two hundred years later, can somehow discern the original intent of the Founders or ratifiers.

Some historians and legal theorists take the argument against strict construction one step further. They conclude that the Constitution itself was largely a happy accident, a document cobbled together not as the result of principle but as the result of power and passion; that we can never hope to discern the Founders’ “original intentions” since the intentions of Jefferson were never those of Hamilton, and those of Hamilton differed greatly from those of Adams; that because the “rules” of the Constitution were contingent on time and place and the ambitions of the men who drafted them, our interpretation of the rules will necessarily reflect the same contingency, the same raw competition, the same imperatives—cloaked in high-minded phrasing—of those factions that ultimately prevail. And just as I recognize the comfort offered by the strict constructionist, so I see a certain appeal to this shattering of myth, to the temptation to believe that the constitutional text doesn’t constrain us much at all, so that we are free to assert our own values unencumbered by fidelity to the stodgy traditions of a distant past. It’s the freedom of the relativist, the rule breaker, the teenager who has discovered his

parents are imperfect and has learned to play one off of the other—the freedom of the apostate.

And yet, ultimately, such apostasy leaves me unsatisfied as well. Maybe I am too steeped in the myth of the founding to reject it entirely. Maybe like those who reject Darwin in favor of intelligent design, I prefer to assume that someone’s at the wheel. In the end, the question I keep asking myself is why, if the Constitution is only about power and not about principle, if all we are doing is just making it up as we go along, has our own republic not only survived but served as the rough model for so many of the successful societies on earth?

The answer I settle on—which is by no means original to me—requires a shift in metaphors, one that sees our democracy not as a house to be built, but as a conversation to be had. According to this conception, the genius of Madison’s design is not that it provides us a fixed blueprint for action, the way a draftsman plots a building’s construction. It provides us with a framework and with rules, but fidelity to these rules will not guarantee a just society or assure agreement on what’s right. It won’t tell us whether abortion is good or bad, a decision for a woman to make or a decision for a legislature. Nor will it tell us whether school prayer is better than no prayer at all.