The Constitution Today
The Constitution is in trouble. The President has lost much of his power to "take care that the laws be faithfully executed." Individual Congressmen do that through their committees and subcommittees that control executive branch agencies. Instead of one chief executive every four years, responsible to the nation, we have scores of anonymous Congressmen who operate invisibly behind the scenes.
Nor is Congress making laws in the sense of debating and voting on the broad rules that we will live by as a nation. Instead, Congress is increasingly preoccupied with administration. Congressmen spend most of their time on what is politely called "constituent services," securing grants and tax breaks for their donors and constituents, helping this or that company get regulatory relief, and intervening in executive branch agencies for this purpose. As for changing the system that allows groups who buy "access" with campaign contributions to receive these privileges, Congress never even discusses it.
Lawmaking by Judges
The Supreme Court, not Congress, now often makes the controversial rules by which we live: our laws. The Federalist explained the difference between lawmaking and judging in this way: "What are many of the most important acts of legislation but so many judicial determinations, not indeed concerning the rights of single persons, but concerning the rights of large bodies of citizens?" In other words, the legislature, not the judiciary, is supposed to determine the rights of large bodies of citizens; the judiciary is supposed to determine the rights of single persons in particular cases at law. By this standard, today's judges are clearly in the business of lawmaking.
Free government under the Constitution requires public accountability and the separation of powers. But when the public cannot know what deals its Congressmen make in private, it cannot hold them accountable. When Supreme Court Justices with lifetime appointments issue their edicts, the public cannot hold them accountable. When the President's officials cannot exercise their constitutional duties without the threat of prosecution or punishment instigated by Congress, the public cannot hold the President properly accountable. Consequently, when the constitutional powers of the President are exercised by Congressmen, when the powers of Congress are exercised by the Court, liberty is diminished.1
The Constitution is also in trouble in another way. The policies and rules that we are compelled to live by are often unconstitutional in spirit, sometimes in letter. Employers and government itself are now routinely required by courts and Congress to give special privileges to blacks and women on the grounds of race or sex, while the Constitution, and justice itself, call for equal treatment. The Supreme Court recently admitted for the first time that affirmative action "trammels the rights" of many citizens and then proceeded to call it constitutional!2
The strangest thing about these developments is how little opposition they have aroused. `Me presidential candidates in the 1988 campaign seemed more or less content with the current system, each man, in his way, being a defender of the status quo. One proposed a further expansion of the welfare state. The other emphasized how well governed we already are. Neither expected to have much difficulty governing. Yet it was not hard to see that either man, once elected, would be in for a fight with Congress if he should dare to assert the constitutional powers of his office.
Even more striking are the congressional races. The press, which is bored or lazy, says next to nothing about them. The people reelected a record number of incumbents, who will therefore continue to behave exactly as they have been behaving.
A sign of the current state of things was the bicentennial celebration of the Constitution in 1987. On September 17, the big day, everyone said nice things about the Constitution, about how much they revered it and loved it. Television showed retired Chief Justice Burger taking turns ringing the Liberty Bell with a young child. It was a pretty scene, although the frail old man and the little girl could only bring forth a somewhat tinny sound.
When the ceremony was over, the TV switched back to the Senate, which was in the midst of its hearings on Judge Bork, who had been nominated to the Supreme Court by President Reagan. The discussion was acrimonious. One Senator after another indignantly demanded to know of Judge Bork if he really intended to carry out the original intent of the Constitution, for if he did, they would be unable to vote to confirm him.
No one called attention to the irony of this implicit rejection of the Constitution we were supposedly celebrating. Senate Republicans defended Judge Bork not by defending the Constitution but by counting up the number of cases in which he had supported women, blacks, and labor. Bork defended himself by promising not to follow the Constitution too rigidly, since so many expectations and institutions had grown up around decisions that may have been made in opposition to that document. In short, those who favored the Constitution were unable to make a principled case that the Constitution is just.
Bork's theory of constitutional interpretation was often called "original intent," meaning that he would follow what the words of the Constitution and its amendments were understood to mean at the time they were written and ratified. This approach, which has been the basis of constitutional interpretation through most of our history, was broadly denounced by liberals. They argued that such a cramped view would hardly protect anyone's rights very well today. When Senator Ted Kennedy asserted that Bork wanted to bring back segregated restaurants and force women to stay home, he meant that the original meaning of the Constitution and of its amendments was racist and sexist. What really worried him, of course, was that "original intent" would not support affirmative action, the right to abortion, the right to sodomy, the outlawing of the death penalty, further expansion of the welfare state, further erosion of the powers of the President, and other current fashions in constitutional "interpretation." These fashions happen to be the heart of today's liberal agenda.
What the liberals really meant was that the Constitution as written and amended is defective. This is because the conception of justice embodied in the document's actual language is allegedly inadequate for our time.3 In plain English, the Constitution is no good, and the judge's job is to set it right by pretending to find in it the justice that our times need.
Rejecting the Constitution
The Bork hearings, however, did not bring this out, because Bork's defenders felt themselves to be morally weak. They felt unable to attack Bork's opponents with the vigor that Bork's opponents attacked Bork.,nat is because his opponents kept using the language of fights and justice and equality, while his supporters were uncomfortable with that language but could not think of anything to defeat it. The anti-Bork forces got away with their implicit rejection of the Constitution because of the success of their appeal to a higher moral standard. The pro-Bork people were unwilling to engage the argument on that level. Indeed, Judge Bork himself maintained that the Constitution has no moral foundation in any "general theory" of "the rights of man.4 His fidelity to the text of the Constitution therefore was viewed as crassly indifferent to the cause of justice. The argument that we should follow the Constitution because that is what the people ratified, as Bork kept saying, did not help because he then seemed to be saying that whatever the people will is just. But might does not make right.
Thus we had the spectacle of liberals pretending to respect but in fact eager to abandon the Constitution for the sake of justice, and conservatives loyal to the Constitution without being able to give a principled reason for being so. This, I think, says eloquently enough why the Constitution is in trouble today.
The Weakness of Conservative Pragmatism
It seems to me that the current state of the debate points in one of two directions. We could follow the logic of the liberals and reject the Constitution cleanly and without apology. It served well enough in its time; but now it is time to junk it and get on with something else. That "something else," of course, may turn out to be less attractive, once it is stripped of its pretended continuity with the past. It may well mean the legitimizing of centralized government by unelected "experts" controlling every detail of our lives from birth to death.
Playing into Liberals' Hands
On the other hand, we could follow the logic of some conservatives and give up the quest for justice altogether, on the ground that any appeal to justice and equality is bound to play into the hands of liberal activists like Brennan. In this view we should oppose liberals like Brennan by arguing pragmatically, absolutely refusing to meet them on the ground of abstract principle.
The conservative inclination may sound reasonable, but, as a wag once asked, does pragmatism work? The majority of the Supreme Court was appointed by Republican Presidents, but nothing seems to change. In recent decisions the Court has affirmed defacto a constitutional requirement for hiring women and blacks who are less qualified than other citizens; has taken the side of the Democratic Congress in a separation of powers case; and has allowed a District Court in Yonkers to threaten elected officials with enormous fines to compel them to build public housing projects, with their attendant crime and violence, in middle-class neighborhoods.
There is a substantial Republican minority in Congress, but they are not always reliable when it comes to supporting presidential vetoes and strong executive actions. Many of them were silent or ready to go along when impeachment talk was in the air in the summer of 1987, before Oliver North's testimony shattered that prospect.
The Reagan Administration had numerous opportunities to fight affirmative action, a policy that among other things requires racial discrimination. But it did not have the heart to do so.
All this happens, I am suggesting, because conservatives are not sure the liberals are wrong on principle. In a contest between human dignity (liberals) and pragmatic constitutional text (conservatives), one has to be inhuman not to be attracted to the liberal side. And that is just what happens.
Let me exaggerate for the sake of clarity. The liberals give us ideals without a constitutional text, and the conservatives give us a constitutional text without ideals. Neither approach will do. The right view, I will argue, is that the text of the Constitution is an embodiment of our deepest ideals of human dignity, and that is why the original intention of the Constitution and its amendments deserves the respect and deference of the Supreme Court, Congress, and the American people.
Returning to the Founders
If pragmatism doesn't work, and considering the tarnished promise of socialism, we have plenty of incentive to look again at the Founders' Constitution. There is good reason to reopen the case that the Constitution, with its amendments, itself embodies the principles of justice. In other words, maybe the Constitution was originally intended to secure the natural rights of mankind.
Now this, in my opinion, is the truth of the matter. Although this natural-rights view of the Constitution is out of favor in many conservative as well as liberal circles, it is the longest enduring constitutional understanding in our tradition. For most of our history it was the mainstream view, the conservative view, of the Constitution. It was shared by such prominent politicians as Washington, Jeffersorn, Madison, John Quincy Adams, Uncoln, and by most post-Civil War Presidents through Coolidge. The Progressive movement, aided by the Great Depression, swept it away, and recent conservatives, with a few notable exceptions, have been reluctant to revive it.
Can Original Intent Be Known?
There is a frequently made but shallow objection to discovering original intent. In the speech referred to earlier, Justice Brennan called it "arrogance cloaked as humility." It is asserted that original intent is unknowable because (1) the Founders disagreed among themselves and (2) their private thoughts, their "intentions," are not in the public record.
Of course the Founders had disagreements. But those disagreements were not over fundamental principles, but rather over how to implement those principles. An examination of the debates surrounding the adoption of the Constitution in 1787 shows that the issue was how best to save the Revolutionary principles of 1776, principles that, in spite of accusations on both sides, most men faithfully adhered to. As to their private intentions, Thomas Sowell says it well:
[The critics of original intent] seem determined to have it mean something that its advocates (from Holmes to Bork) have never meant: the private, subjective beliefs or desires of those who drafted legislation and the Constitution. What those who advocate "judicial restraint" or "original intent" have been seeking, at least as far back as Blackstone, is the cognitive meaning of instructions found in the law.5
Those instructions, to be sure, are guided by an understanding of right and wrong in the minds of those who draft them, and where that understanding is clearly and authoritatively articulated, as it was by the Founders, then it should be consulted.
In principle, it is not hard to find out what the Founders thought they were doing - what the "original intent" of the Constitution was. All you have to do is look at what they said and wrote. Most authoritative are the leading public documents, including constitutions, laws, public debates, and writings (including some sermons) published by the authority of governmental bodies during the founding period. Public statements and writings by the most respected politicians deserve the greatest attention, for these are the men their colleagues and the people turned to as their rulers and spokesmen. Finally, it is worth consulting private writings that were favorably received by the public, such as Thomas Paine's Common Sense.
But in practice it is not so easy. For one thing, this material is widely scattered in collections of documents and of writings by the numerous leading statesmen of the period. It takes time to read it. And each of the several edited short versions of the Founders' work omits important material. So the tendency of the educated public is to fall back on scholarly books on the founding - or even journalistic summaries of those books - to guide them through the thickets.
But here we encounter a greater problem. Scholarship, we are told, is objective and scientific on the model of sciences like chemistry. Yet the scholarship on the founding turns out to be beset with internal disagreements. Making sense of the different lines of interpretation is a job comparable to interpreting the Constitution itself But the main lines of approach are clear. The touchstone is the name of John Locke and the natural rights to life, liberty, and property associated with his name.
Liberal and Conservative Scholarship and the Founding
It has become fashionable in recent years to denigrate the influence of Locke on the American founding. Liberals are inclined to theview that the Founders (at least those of 1776) cared more about the public good than about the individual rights of life, liberty, and property celebrated by Locke - as if the public good was not in large measure defined by the securing of those rights. Liberal scholarship generally argues a position first popularized by historian Charles Beard: the Revolution of 1776, fought on democratic principles, was betrayed by a conservative reaction in 1787, which produced the U. S. Constitution.
But today's liberals are more subtle than Beard. They no longer claim that the Constitution's Framers were motivated by crude economic self-interest. Instead, they criticize the 1787 Framers' concern for property rights, while they praise the "classical republicanism" of 1776, which, in their view, rightly subordinated property rights to the needs of society. "Ideally, republicanism obliterated the individual," asserts historian Gordon Wood in a widely celebrated book on the political thought of the founding (he might have been describing Marxism). Wood and other scholars would like to discover in our founding a political theory that justifies maximum state control of property rights:
The extensive mercantilist regulation of the economy, the numerous attempts in the early years of the war to suppress prices, control wages, and prevent monopolies... was in no way inconsistent with the spirit of '76, but in fact was ideally expressive of what republicanism meant [my emphasis).6
This is a case of reading back into the founding the principles of the modern regulatory state or even socialism.7
Conservative scholarship, on the other hand, tends to present the founding in one of two ways. Traditionalist conservatives (such as Russell Kirk and Forrest McDonald) emphasize the purely British and colonial heritage of the Revolution. They would like to believe that this heritage developed "organically," with little or no benefit from philosophical theories. They have correctly shown that the Founders held that liberty presupposes morality and religion and the rejection of self-indulgence, cowardice, and atheism. But because these scholars fear the liberal politics of egalitarianism, they have been reluctant to embrace the Founders' idealistic dedication to natural rights.
Thus conservative and liberal scholars alike frequently deny that the natural rights of man were the principled basis of the American Revolution and the tradition of constitutionalism that it spawned. They both fear that the Lockean concern for individual liberty stands in the way of the proper concerns of the community. Consequently, they are inclined to look for and emphasize non-Lockean strains in the founding. They imply, although they rarely acknowledge it, that individual liberty - each person's inalienable right to life, liberty, and the pursuit of happiness - is opposed to the common good. They also imply that the American belief in individual liberty, wherever it may have come from, is at the root of many of our current political problems.
The other conservative approach, built on the work of Leo Strauss, correctly insists on the natural rights basis of the Revolution, but then goes on to denounce that basis - or only halfheartedly endorse it - because (in this view) it legitimates self-interest, ultimately self-indulgence, and fails to set proper limits to liberty. (Adherents of this view include Walter Bems, George Will, Allan Bloom, Thomas Pangle. Strauss himself never endorsed it.) Thus these conservatives agree in this respect with the liberals who disparage the Constitution for its preoccupation with property rights. At best they can muster up only "two cheers for capitalism" (Irving Kristol's phrase).
If the Straussians are right about the Founders' principles, we certainly have an incentive to look for non-Lockean elements in the founding. For if America is as "ill founded"8 as George Will and other conservatives and liberals think it is, we may well be compelled to join them in abandoning the principles of the founding and replacing them with some newer and hopefully sounder principles (although 20th century experience with socialism and other despotic alternatives to free government is not encouraging in this regard).
Let us be clear: the current scholarly debate is about the same thing as the current political debate, namely, whether the U.S. Constitution is corrupt from the very start because of its faulty principles.
Natural Rights and the Revolution
It is not hard to show that the political principles of leading Americans during the revolutionary period were those of John Locke. He was the author most often cited in the political writings of these years.9 Locke's views, often even his name, were featured in documents of state legislatures, town meetings, and Congress. Preachers frequently quoted Locke in their sermons on political rights and duties. There were many other books and writers to whom the Founders looked for practical wisdom in politics, above all the Bible. But when it came to first principles, Locke was by far the leading authority.10 Here in brief are Locke's principles, as the Americans understood them:
- All human beings are born equal in the natural state of things,
in the sense that no one has a natural right to govern another.
Equal rights to life, liberty, and property follow.
- In the pre-civil state, these rights are often violated because
of the unchecked passions of bad men. Therefore the most urgent
purpose of government is to secure those rights.
- Since no one has the right to rule another by nature without
that other's consent, government, which limits one's liberty and
property, must be based on the consent of the governed. (The
revolutionary slogan, "No taxation without representation," sums up
this part of the theory.) Consent in founding means government is
established by a contract among the people. Consent in governing
means elected representatives. The alternative to consent is
There is a right to revolution if government violates either of these criteria (protection of individual rights and consent).
To secure these rights, government must rule by law: public rules publicly deliberated on and applied equally.
Liberty is not unlimited, even in the state of nature. This limit is defined by the law of nature, sometimes called the moral law. The civil law must enforce the law of nature in the state of society.
Locke's account of politics combines idealism and realism. It is idealistic because it provides for government of, by, and for the people. It is realistic because it recognizes that human beings are often driven by passions and that government is needed to put limits on the passions.
This theory, of course, was not peculiar to Locke. Other writers respected by Americans had laid out the same argument. Some were influenced by Locke, such as Blackstone, Burlamaqui, and radical English Whigs such as Trenchard and Gordon. Others preceded Locke, such as Pufendorf and Sidney. But Locke had given the argument its clearest and, for Americans, its most persuasive presentation.
One fashion in today's scholarship, already alluded to, is to claim that the Founders rejected Locke in the name of "classical republicanism."11 In this view, the protection of individual rights (especially property rights) conflicts with the promotion of public virtue, which is said to have been the main theme of the 1776 period.
Distinguishing Liberty from License
It is certainly true that the Founders believed that free government and human decency required public virtue. When they spoke of the right to liberty, they did not mean anything like today's "right to privacy." For they always distinguished liberty from license. They thought laws encouraging virtue and suppressing vice were not only compatible with liberty but essential for it. These laws ranged from restrictions on pornography and sodomy to public support of education in morality and religion.
Locke's own ultimate view of man's purpose in life may well have been at odds with the Founders' common-sense view of the matter.12 But whatever Locke may have held, the Founders did not think their concern for public support of morality conflicted in any way with their dedication to the equal rights of mankind, including the right to own and acquire private property. On the contrary, they despised a liberty that looked with indifference upon a life of selfishness, cowardice, self-indulgence, and atheism. For them, there is a dignity in human nature, but it lies in man's capacity to live justly and wisely. Man can live up to the dignity of his nature or fall into degradation. Justice Brennan, on the other hand, thinks human dignity is something that every wanton killer, child molester, and drug dealer possesses by the mere fact of being alive.13
The Founders' distinction between liberty and license, and its embodiment in our institutions, has been ill understood by conservatives for some time. They are half persuaded by those who argue that protection of property rights promotes a selfish and materialistic society. President Eisenhower once recounted a conversation he had with Soviet Marshall Georgi Zhukov in the 1950s. Zhukov told Ike that "you [Americans] appeal to" "everything that is selfish in man." Eisenhower's response: "I was very hard put to it when he insisted that their system appealed to the idealistic, and we completely to the materialistic, and I had a very tough time trying to defend our position."14
Natural Rights and the Constitution: The Founder's
In the enthusiasm of 1776, the Founders did not worry much about the structure of government. There was a general trust that democratic government itself would solve many problems, which were thought to have stemmed from hereditary aristocracy and monarchy. They were tempted to believe that government by consent would always protect individual rights (see Locke's principles above). But this was not to be.
By 1787 the problem was to make democracy work. Like today's ex-liberals who are now neoconservatives, the Founders were mugged by reality. The structure of the national government was so weak that it was ignored by everyone. State governments routinely violated individual rights to liberty and property. Americans had to face the fact that human nature and imperfect institutions provided obstacles to just and competent government, even when government is democratic. This was always acknowledged in principle. But more attention was now paid in practice to the strength of human passions and the characteristic weaknesses of democracy. Yet their real concern with the excesses of democracy did not cause them to renounce their dedication to the proposition that all men are created equal. But that dedication became more sober.
A major error in the first attempts to establish democracy, it was now seen, was in the structure of government. There was no adequate federal authority. There was no proper separation of powers at the national or state level. The legislatures in every state were acting despotically.
No previous political writer had much to say about these practical problems of implementing free government. For this they had to rely on their own experience and judgment. On separation of powers they had Locke and Montesquieu, but even here they were mostly on their own, for these men had not written about wholly popular governments. Nor was there any adequate treatment of government under a written constitution.
First, they gave the national government adequate powers to take care of affairs that were truly national in scope, such as foreign policy and maintaining a free market for commerce. State governments and local communities retained their authority over matters of detail and everyday life, as was appropriate.
Second, the executive and judiciary were made more independent of the legislature. The President was elected indirectly by the people, not by Congress. Judicial functions were not to be dealt with by the legislature. The Constitution was not amendable by the legislature.
Finally, the executive was given additional constitutional powers to defend his office, resist the encroachments of the legislature, and promote a more competent government.
The result was a government limited not only by the "parchment barriers" of a written Constitution but by the self-interest of presidents and judges determined to protect the constitutional rights of their offices against legislative violations.
To this extent the Founders saw the importance of using self-interest on behalf of the common good. But they did not make the mistake - as Kant and later philosophers did - of believing an entirely selfish citizen body and ruling elite would be able to govern themselves democratically. Education was crucial - especially the discipline of strong laws.
In this way the Founders tried to establish a government based on the sovereignty of the people that would do a better job of protecting the rights of the people against the encroachments of private factions and of government itself.
Let us restate the question of today's liberals: why should we respect the original intention of the Constitution? If the Constitution is unjust, let's ignore it as best we can. But the Constitution is not unjust. Its original intention was good. Martin Luther King called the Declaration of Independence and the Constitution "that magnificent promissory note" to blacks and Americans of all ethnic origins, and our history has proved him right.
Of course, at the time of the founding, slavery existed and prejudice existed in private life against people of different ethnic groups. That was a fact of life; but that fact of life stood in conflict with the basic commitment and basic principles that the nation had adopted, and by which the nation was to live with an increasing degree of fidelity for the next two hundred years.
Fruits of the Constitution
TheConstitution is often reproached for its compromises with slavery. In a 1987 speech Supreme Court Justice Thurgood Marshall said he for one didn't see much to celebrate in the Bicentennial of the Constitution because of the stain of slavery upon it. But has Justice Marshall given thought to why blacks were ever liberated in this country? Emancipation did not just drop down out of the sky one day. Lincoln and the Republican party of the 1850s were able to mobilize a national majority against slavery expansion only because of the commitment our Founders had made to the proposition that all men are created equal. And hundreds of thousand of whites died in the Civil War that from 1862 on was a war for emancipation. That war was fought for the sake of, and under the aegis of, the very Constitution of 1787 against which Justice Marshall complains so bitterly. The fruits of that victory were constitutionalized in the 13th, 14th, and 15th amendments. Thus the document was finally brought into conformity with its original principles.
The Founders understood the Constitution's tolerance of slavery as a compromise that had to be made because of existing prejudices and interests in society - a compromise that they believed and foresaw would be corrected in the course of American history after the Union was formed. Their belief turned out to be true. That is the meaning of the Civil War for our nation.
Taking Pride in America
Now when we look at what has happened in the 200 years since the founding, we see that our loyalty to the original intention of the Constitution - our dedication to the idea of equality under the rule of law - has succeeded in creating a country in which there really is equality of opportunity for all American citizens. The promissory note of the Declaration and the Constitution has been realized.
Americans need to recognize once again that they can justly take pride in their country and its traditions, and that they can oppose the liberal rejection of the Constitution in full consciousness that theirs is the cause of justice. Americans with conservative inclinations long have been habituated to think of themselves as a sober drag on the wheels of inevitable liberal progress. They need to be reminded that the conservative position was and remains the revolutionary position, the position on whose basis justice has best been achieved in the modern world, and that liberalism in its current guise no longer stands for freedom.
For what else is the meaning of the Supreme Court's statement that it is constitutional to "trammel" the rights of whites and males, as long as they are not "unnecessarily trammeled"? The Supreme Court, of course, will decide how far it is "necessary" to trammel their rights, which means their "rights," and everyone's "rights" (including minority "rights") are not rights at all, but only favors that the Court may withdraw any time it deems it "necessary." This is neither government by consent of the governed, nor government securing the equal individual rights of all citizens. It is despotism.
1 A fuller account of our institutional crisis is given in my chapter and others in a recent Heritage Foundation/Claremont Institute publication, 7he Imperial Congress: Crisis in the Separation of Powers, edited by Gordon Jones and John Marini (New York: Pharos Press, 1989).
3 This view was explicitly endorsed by Justice William Brennan, the liberals' champion on the Court, in a speech to the Text and Teaching Symposium at Georgetown University, October 12, 1985, in 7he Great Debate: Interpreting Our Written Constitution (Washington: The Federalist Society, 1986), p. 17. Brennan Rejects "any static meaning [the Constitution) may have had in a world that is dead and gone."
8 The expression is from George Will, Statecraft as Soulcraft (New York: Simon and Schuster,1983), p.18. Allan Bloom indicates that he shares Will's view of the founding (although he is deliberately more ambiguous about it) in his Closing o fthe Ametican Mind (NewYork: Simon and Schuster, 1987), pp. 28, 97, and elsewhere. See Thomas G. West, "Allan Bloom and America," Claremont Review of Books, Spring 1988.
10 For a full account, see Thomas G. West, "The Classical Spirit of the Founding," in J. Jackson Barlow, Leonard W. Levy, and Ken Masugi, eds., The American Founding.- Essays on the Formation of the Constitution (New York: Greenwood Press, 1988).