Wider Reading New York Times on Originalism

New York Times


What did the Founding Fathers Intend?

THE CONSTITUTION OF THE UNITED STATES WILL BE 200 years old on Sept. 17, 1987, and a Bicentennial commission -headed by Chief Justice Warren E. Burger (whose birthday felicitously falls on that date) - is under way, formulating plans for ''Constitution Day'' festivities. The celebratory air notwithstanding, recent discussions of constitutional values seem to reveal more conflict than shared pride. Some examples:

Last summer, in remarks before the American Bar Association, Attorney General Edwin Meese 3d criticized the Supreme Court's recent decisions reaffirming the First Amendment requirement that government maintain a ''strict neutrality'' toward religion. The Attorney General castigated the Court for ignoring the ''intent of the framers'' and stated that the Philadelphia Convention would find the doctrine of ''a strict neutrality between religion and nonreligion . . . somewhat bizarre.'' In an undelivered portion of his text, the Attorney General seemed to question the applicability of the Bill of Rights to state governments.

In an address last fall, Justice John Paul Stevens responded to the Attorney General's criticisms by stating that ''some uncertainty may attend an effort to identify the precise messages'' of the framers. Speaking at Georgetown University last October, Justice William J. Brennan Jr. rejected the ''arrogance cloaked as humility'' of those relying on the ''facile historicism'' inherent in the original-intent theory. The Supreme Court has agreed to hear a case in which it will decide whether the right of privacy includes consensual adult homosexual conduct. Critics contend that no right of privacy is mentioned in the Constitution or was envisioned by our Founding Fathers.

In the ongoing debate over original intent, almost all Federal judges hold to the notion that judicial decisions should be based on the text of the Constitution or the structure it creates. Yet, in requiring judges to be guided solely by the expressed views of the framers, current advocates of original intent seem to call for a narrower concept. Jurists who disregard this interpretation, the argument runs, act lawlessly because they are imposing their own moral standards and political preferences on the community.

As a Federal judge, I have found it often difficult to ascertain the ''intent of the framers,'' and even more problematic to try to dispose of a constitutional question by giving great weight to the intent argument. Indeed, even if it were possible to decide hard cases on the basis of a strict interpretation of original intent, or originalism, that methodology would conflict with a judge's duty to apply the Constitution's underlying principles to changing circumstances. Furthermore, by attempting to erode the base for judicial affirmation of the freedoms guaranteed by the Bill of Rights and the 14th Amendment (no state shall ''deprive any person of life, liberty, or property without due process of law; nor deny to any person . . . the equal protection of the laws''), the intent theory threatens some of the greatest achievements of the Federal judiciary.

Ultimately, the debate centres on the nature of judicial review, or the power of courts to act as the ultimate arbiters of constitutional meaning. This responsibility has been acknowledged ever since the celebrated 1803 case of Marbury v. Madison, in which Chief Justice John Marshall struck down a Congressional grant of jurisdiction to the Supreme Court not authorized by Article III of the Constitution. But here again, originalists would accept judicial review only if it adhered to the allegedly neutral principles

In the course of 36 years on the Federal bench, I have had to make many difficult constitutional interpretations. I have had to determine whether a teacher could wear a black armband as a protest against the Vietnam War; whether newspapers have a nonactionable right to report accusatory statements, and whether a school system might be guilty of de facto segregation. Unfortunately, the framers' intentions are not made sufficiently clear to provide easy answers. A judge must first determine what the intent was (or would have been) - a notoriously formidable task.

An initial problem is the paucity of materials. Both the official minutes of the Philadelphia Convention of 1787 and James Madison's famous notes of the proceedings, published in 1840, tend toward the terse and cursory, especially in relation to the judiciary. The Congressional debates over the proposed Bill of Rights, which became effective in 1791, are scarcely better. Even Justice William Rehnquist, one of the most articulate spokesmen for original intent, admitted in a recent dissent in a case concerning school prayer that the legislative history behind the provision against the establishment of an official religion ''does not seem particularly illuminating.''

One source deserves special mention. ''The Federalist Papers'' - the series of essays written by Alexander Hamilton, James Madison and John Jay in 1787 and 1788 - have long been esteemed as the earliest constitutional commentary. In 1825, for example, Thomas Jefferson noted that ''The Federalist'' was regularly appealed to ''as evidence of the general opinion of those who framed and of those who accepted the Constitution of the United States.''

''The Federalist,'' however, did not discuss the Bill of Rights or the Civil War amendments, which were yet to be written. Moreover, the essays were part of a political campaign - the authors wrote them in support of New York's ratification of the Constitution. The essays, therefore, tended to enunciate general democratic theory or rebut anti-Federalist arguments, neither of which offer much help to modern jurists. (In light of the following passage from ''The Federalist,'' No. 14, I believe Madison would be surprised to find his words of 200 years ago deciding today's cases: ''Is it not the glory of the people of America that . . . they have not suffered a blind veneration for antiquity . . . to overrule the suggestions of their own good sense . . .?'') Another problem with original intent is this: Who were the framers? Generally, they are taken to be the delegates to the Philadelphia Convention and the Congressional sponsors of subsequent amendments. All constitutional provisions, however, have been ratified by state conventions or legislatures on behalf of the people they represented. Is the relevant intention, then, that of the drafters, the ratifiers or the general populace?

The elusiveness of the framers' intent leads to another, more telling problem. Originalist doctrine presumes that intent can be discovered by historical sleuthing or psychological rumination. In fact, this is not possible. Judges are constantly required to resolve questions that 18th-century statesmen, no matter how prescient, simply could not or did not foresee and resolve. On most issues, to look for a collective intention held by either drafters or ratifiers is to hunt for a chimaera.

A reading of the Constitution highlights this problem. The principles of our great charter are cast in grand, yet cryptic, phrases. Accordingly, judges usually confront what Justice Robert Jackson in the 1940's termed the ''majestic generalities'' of the Bill of Rights, or the terse commands of ''due process of law,'' or ''equal protection'' contained in the 14th Amendment. The use of such open-ended provisions would indicate that the framers did not want the Constitution to become a straitjacket on all events for all times. In contrast, when the framers held a clear intention, they did not mince words. Article II, for example, specifies a minimum Presidential age of 35 years instead of merely requiring ''maturity'' or ''adequate age.''

The First Amendment is a good example of a vaguer provision. In guaranteeing freedom of the press, some of our forefathers perhaps had specific thoughts on what publications fell within its purview. Some historians believe, in light of Colonial debates, that the main concern of the framers was to prevent governmental licensing of newspapers. If that were all the First Amendment meant today, then many important decisions protecting the press would have to be overruled. One of them would be the landmark New York Times v. Sullivan ruling of 1964, giving the press added protection in libel cases brought by public figures. Another would be Near v. Minnesota, a case involving Jay Near, a newspaper publisher who had run afoul of a Minne-sota statute outlawing ''malicious, scandalous and defamatory'' publications. The Supreme Court struck down the statute in 1931, forbidding governmental prior restraints on publication; this ruling was the precursor of the 1971 Pentagon Papers decision.

The Founding Fathers focused not on particularities but on principles, such as the need in a democracy for people to engage in free and robust discourse. James Madison considered a popular government without popular information a ''Prologue to a Farce or a Tragedy.'' Judges, then, must focus on underlying principles when going about their delicate duty of applying the First Amendment's precepts to today's world.

In fact, our nation's first debate over constitutional interpretation centered on grand principles. Angered at John Adams's Federalist Administration, advocates of states' rights in the late 18th century argued that original intent meant that the Constitution, like the Articles of Confederation, should be construed narrowly - as a compact among separate sovereigns. The 1798 Virginia and Kentucky Resolutions, which sought to reserve to the states the power of ultimate constitutional interpretation, were the most extreme expressions of this view. In rejecting this outlook, a nationalistic Supreme Court construed the Constitution more broadly.

The important point here is that neither side of this debate looked to the stated views of the framers to resolve the issue. Because of his leading role at the Philadelphia Convention, Madison's position is especially illuminating. ''Whatever veneration might be entertained for the body of men who formed our Constitution,'' he declaimed on the floor of Congress in 1796, ''the sense of that body could never be regarded as the oracular guide in expounding the Constitution.''

Y ET, I DOUBT IF STRICT proponents of original intent will be deterred by such considerations. Their goal is not to venerate dead framers but to restrain living judges from imposing their own values. This restraint is most troublesome when it threatens the protection of individual rights against governmental encroachment.

According to current constitutional doctrine, the due process clause of the 14th Amendment incorporates key provisions of the Bill of Rights, which keeps in check only the Federal Government. Unless the due process clause is construed to include the most important parts of the first eight amendments in the Bill of Rights, then the states would be free, in theory, to establish an official church or inflict cruel and unusual punishments. This doctrine is called incorporation.

Aside from the late Justice Hugo Black, few have believed that history alone is a sufficient basis for applying the Bill of Rights to the states. In his Georgetown University address, Justice Brennan noted that the crucial liberties embodied in the Bill of Rights are so central to our national identity that we cannot imagine any definition of ''liberty'' without them.

In fact, a cramped reading of the Bill of Rights jeopardizes what I regard as the true original intent - the rationale for having a written Constitution at all. The principal reason for a charter was to restrain government. In 1787, the idea of a fundamental law set down in black and white was revolutionary. Hanoverian England in the 18th century did not have a fully written, unified constitution, having long believed in a partially written one, based on ancient custom and grants from the Crown like the Magna Carta. To this day, the British have kept their democracy alive without one. In theory, the ''King-in-Parliament'' was and is unlimited in sovereign might, and leading political theorists, such as Thomas Hobbes and John Locke, agreed that governments, once established by a social contract, could not then be fettered.

Although not a Bill of Rights, the Magna Carta -King John's concessions to his barons in 1215 - was symbolic of the notion that even the Crown was not all-powerful. Moreover, certain judges believed that Parliament, like the king, had to respect the traditions of the common law. This staunch belief in perpetual rights, in turn, was an important spark for the Revolutionary conflagration of 1776.

In gaining independence, Americans formed the bold concept that sovereignty continually resided with the people, who cede power to governments only to achieve certain specific ends. This view dominated the Philadelphia Convention. Instead of merely improving on the Articles of Confederation, as they had been directed to do, the framers devised a government where certain powers -defined and thereby limited - flowed from the people to the Congress, the President and the Federal judiciary.

Alexander Hamilton recognized that the basic tenets of this scheme mandated judicial review. Individual rights, he observed in ''The Federalist,'' No. 78, ''can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void.'' Through a written constitution and judicial enforcement, the framers intended to preserve the inchoate rights they had lost as Englishmen.

The narrow interpretation of original intent is especially unfortunate because I doubt that many of its proponents are in favor of freeing the states from the constraints of the Bill of Rights. In fact, I believe the concern of many modern ''intentionalists'' is quite specific: outrage over the right-of-privacy cases, especially Roe v. Wade, the 1973 Supreme Court decision recognizing a woman's right to an abortion. (The right of privacy, of course, is not mentioned in the Constitution.) Whether one agrees with this controversial decision or not, I would submit that concern over the outcome of one difficult case is not sufficient cause to embrace a theory that calls for so many changes in existing law.

S OME OPPONENTS of strict interpretations of original intent, too, have been guilty of taking an extreme position. Some, for example, have suggested that invoking the framers is only a cloak to hide more modern and malevolent intentions.

This view, however, ignores the threat of abuse of power posed by a life-tenured judiciary. Unless restrained in some fashion, judges are capable of usurping authority better left to the democratic branches. Judicial critics often refer to the 1907 comment of Charles Evans Hughes (who later became Chief Justice of the United States) that ''We are under a Constitution, but the Constitution is what the judges say it is.''

The power of judges to declare laws unconstitutional does appear at odds with majority rule. Why should a handful of Supreme Court Justices - or any Federal judge - appointed for life, be able to invalidate the will of the people's elected representatives, as expressed in a duly enacted statute? How does one reconcile this power with our commitment to democracy?

As Hamilton foresaw in ''The Federalist,'' No. 78, and Chief Justice Marshall established in Marbury v. Madison, review of legislation by nonelected judges is, in fact, justified by their mandate to enforce the entirety of the law including, when there is any conflict, the ''supreme law of the land'': the Constitution. If judicial decisions are based on political notions instead of legal principles, that imprimatur is lost.

One can, therefore, understand why a clear guide to constitutional interpretation is thought necessary. History tells us of grave abuses of power when judges feel unrestrained. Consider, for instance, the infamous Dred Scott decision in 1857. Dred Scott was a slave whose mas-ter had taken him into the Louisiana Territory and, under the terms of the Missouri Compromise, was thus made a free man. Scott, however, later was taken to the slave state of Missouri. With the aid of abolitionist lawyers, Scott brought a suit in Federal court to obtain his freedom on the grounds he had been emancipated.

On appeal, the Supreme Court ruled against him. Hoping to settle the slavery issue through judicial fiat instead of political compromise, the High Court decided blacks were not citizens and Congress could not regulate slavery in the territories. After noting the subjugation of blacks at the time of the Constitution's adoption, Chief Justice Roger Taney concluded ''they had no rights which the white man was bound to respect.''

The opinion was vociferously denounced in the North. ''The Court has rushed into politics,'' raged The New York Tribune, ''without other purpose than to subserve the cause of slavery.'' Instead of healing sectarian strife, the Court's exercise of power most likely hastened the Civil War.

The Justices likewise suffered ultimate defeat when they attempted to halt the advent of the modern welfare state. The Federal judiciary in the early decades of this century regularly invalidated social legislation, such as child labor statutes and minimum wage/maximum hours laws. Claiming that the due process clause embodied economic liberty, judges relied on the rubric of ''substantive due process'' to impose their own views on the nation.

This period is known as the ''Lochner era,'' after a famous case in which the Supreme Court struck down a New York statute prescribing a 10-hour workday for bakery employees (Lochner was the owner of a bakery who was prosecuted for violating the statute). The Justices believed that the government lacked the authority to interfere with private contractual arrangements. In a powerful dissent, Justice Oliver Wendell Holmes denounced the Court's imputation of laissez-faire capitalism to the Constitution: ''The Fourteenth Amendment does not enact Mr. Herbert Spencer's Social Statics.'' The Lochner era came to a close when the Supreme Court ultimately accepted President Roosevelt's New Deal programs.

These examples indicate the need for judicial impartiality and restraint, but if original intent is an uncertain guide, does some other, more functional approach to interpreting the Constitution exist?

T HE TRUTH IS THAT no litmus test exists by which judges can confidently and consistently measure the constitutionality of their decisions. Notwithstanding the clear need for judicial restraint, judges do not constitute what Prof. Raoul Berger, a retired Harvard Law School fellow, has termed an ''imperial judiciary.'' I would argue that the judicial process itself limits the reach of a jurist's arm.

First, judges do not and cannot deliberately contravene specific constitutional rules or clear indications of original intent. No one would seriously argue or expect, for instance, that the Supreme Court could or would twist the Presidential minimum-age provision into a call for ''sufficient maturity,'' so as to forbid the seating of a 36-year-old.

I doubt, in any event, that Federal judges would ever hear such a question. The Constitution limits our power to traditional ''cases'' and ''controversies'' capable of judicial resolution. In cases like the hypothetical one regarding the Presidential age, the High Court employs doctrines of standing (proving injury) and ''political question'' to keep citizens from suing merely out of a desire to have the government run a certain way.

Moreover, the issues properly before a judge are not presented on a tabula rasa. Even the vaguest constitutional provisions have received the judicial gloss of prior decisions. Precedent alone, of course, should not preserve clearly erroneous decisions; the abhorrent ''separate but equal'' doctrine survived for more than 50 years before the Warren Court struck it down in 1954.

The conventions of our judicial system also limit a jurist's ability to impose his or her own will. One important restraint, often overlooked, is the tradition that appellate judges issue written opinions. That is, we must support our decisions with reasons in-stead of whims and indicate how our constitutional rulings relate to the document. A written statement is open to the dissent of colleagues, possible review by a higher court and the judgment, sometimes scathing, of legal scholars.

In addition, the facts of a given case play a pivotal role. Facts delineate the reach of a legal decision and remind us of the ''cases and controversies'' requirement. Our respect for such ground rules reassures the public that, even in the most controversial case, the outcome is not just a political ruling.

Judges are also mindful that the ultimate justification for their power is public acceptance - acceptance not of every decision, but of the role they play. Without popular support, the power of judicial review would have been eviscerated by political forces long ago.

Lacking the power of the purse or the sword, the courts must rely on the elected branches to enforce their decisions. The school desegregation cases would have been a dead letter unless President Eisenhower had been willing to order out the National Guard - in support of a decision authored by a Chief Justice, Earl Warren, whose appointment the President had called ''the biggest damned-fool mistake I ever made.''

Instead of achieving the purple of philosopher-kings, an unprincipled judiciary would risk becoming modern King Canutes, with the cold tide of political reality and popular opprobrium lapping at their robes.

My revered predecessor on the Court of Appeals, Judge Learned Hand, remarked in a lecture at Harvard in the late 1950's that he would not want to be ruled by ''a bevy of Platonic Guardians.'' The Constitution balances the danger of judicial abuse against the threat of a temporary majority trampling individual rights. The current debate is a continuation of an age-old, and perhaps endless, struggle to reach a balance between our commitments to democracy and to the rule of law.

Although my office forces me to take a very direct part in the ongoing dialogue, all Americans have a stake in what my judicial colleagues and I say about the Constitution. At bottom, the debate is the consequence of our experiment, now two centuries old, in giving our fundamental ideals written expression in a Constitution. And that is cause for celebration