November 29, 1990
When an individual becomes a member of Congress, he takes an oath to protect and defend the Constitution. The oath is administered during a rather impressive ceremony that takes place during the first day of the first session of each new Congress. Families of the members of the House and the Senate typically gather in the two chambers and watch with pride as the members are sworn into office.
I point this out because the oath of office taken by members of Congress implies that they will attempt to understand and implement the Constitution they have sworn to protect and defend. The thrust of my comments today, however, is that members of Congress pay very little attention to the Constitution, have almost no understanding of what that document means, and seldom, if ever, engage in what I might label, constitutionalism.
Constitutionalism may be defined as deliberation over the meaning of the Constitution. It is not debating how to interpret the Constitution; a debate over jurisprudence. That is an important debate that may indeed have very real consequences for constitutional meaning. But it is essentially an academic debate. Rather, constitutionalism is about attempting to understand the Constitution on itsown terms and then determining what its meaning implies for decision makers in Congress.
Constitutionalism may or may not lead to action. Indeed, my sense is that the Constitution, properly understood, will more often than not lead to inaction on the part of the national government. Properly understood, after all, the Constitution is a limiting document. It establishes a national government of limited and enumerated powers and reserves all other powers not delegated to the national government to the states and the citizens. A member of Congress who takes the Constitution seriously might question much of what goes on in the nation's capital.
A Congress composed of individuals who lived up to their oath of office (if the theory behind the Constitution has any merit) would create public policy that responds not merely to the momentary interests of the majority, or of a powerful minority, but to the long term interest of the nation as a whole. Indeed, that is why we have a written constitution: in order to ensure that unique blend of representation and responsibility that is essential to the health and success of a republic. Constitutionalism helps to achieve that larger goal as individuals turn to the document for direction, guidance, some answers, and as a source for the correct questions to be asking.
My thesis is that constitutionalism was once practiced on Capitol Hill but is no more. The decline of constitutionalism in Congress parallels the decline in the quality of representative government in Washington and the increase in the influence of the judiciary in American politics.
The Founders' View
The Framers of the Constitution felt members of Congress had an obligation to interpret the Constitution. This might strike some as surprising. We live in an age in which constitutional interpretation is felt by many to be the sole responsibility of the federal judiciary. Certainly those who created our Constitution and served in public office during the early years of the Republic felt that the courts did indeed exist to give meaning to the laws and the Constitution. Moreover, the doctrine of judicial review - the authority of the Supreme Court to determine the constitutionality of laws passed by Congress, was not invented out of whole cloth by Chief Justice John Marshall, as some have argued, but has intellectual roots that reach back deep into English legal thought and were espoused by such Framers as Alexander Hamilton and James Madison.
But to say the courts exist to give meaning to the laws and the Constitution is not to embrace the idea that only courts can give meaning to the laws and the Constitution. Similarly, while the Framers felt the courts would be the final arbiters of constitutional questions, they did not feel judges would be the sole arbiters of constitutional questions. Courts existed to settle legal and constitutional questions but not to silence debate in the legislative or executive branches over such questions.
To understand the Framers' view of constitutionalism in Congress one has to understand how they viewed representation in the young Republic. Representation is essentially a matter of style and focus. Individuals are elected to the Congress to represent either the citizens of their district or the interests of their state. The focus of their representational task is defined, therefore, by the Constitution. Representation style was similarly defined by the Constitution. Individuals elected to the House of Representatives were to function as delegates. They were, in the words of Madison, to maintain "an intimate sympathy" with the people because of their "immediate dependence" upon the people. Members of the House were elected to press for the interests of their constituents.1
Senators, on the other hand, were considered trustees who had an almost fiduciary responsibility to look beyond the narrow, parochial interests of the district and act to further the interests of the state and of the union. In The Federalist, Madison writes of senatorial trust" that is the hallmark of the institution. The purpose of the Senate is not only to check the House, but to act as a check upon the people themselves so that "passion might not wrest the scepter from reason" and the "cool and deliberate sense of the community" might prevail.2
The Framers' understanding of representation, then, combined a desire to ensure responsiveness to public opinion with a due sense or responsibility. In order to accomplish this, members of the Congress would always have to bear in mind the desires of the voters while also seeking to move beyond merely catering to those desires. Representation in the Republic meant the mixture of responsiveness and deliberation that might yield long term solutions to public problems. It was to yield a brand of representation in which the total was greater than the sum of its parts and was the veryfoundation of a Constitution based upon the difference between popular government and popularity in government.
A serious study of Madison's Notes of the Constitutional Convention, along with The Federalist, the writings of the anti-federalists, and the records of the debates in the several state ratification conventions suggest that for those who were most involved in creating the new government under the new constitution, representation in Congress meant deliberation as well as responding to constituents and that sometimes deliberation might and should entail debate about issues within a constitutional context. Members of the House and the Senate, in other words, were to have an obligation - a responsibility - to take the Constitution seriously and to consider its meaning on its own terms.
A constitutional conversation that took place in the House ofRepresentatives in 1789 illustrates the point nicely. During August of that year the members of the First Congress were debating James Madison's proposals to revise the Constitution to provide for a Bill of Rights. He had introduced his proposals in June. But the crush of business before the Republic had shoved those proposals back on the calendar until they gradually came before the House in late summer. On August 15, 1789, the members were discussing what we now refer to as the First Amendment. Having finished a discussion of the religion clauses of that proposed amendment, they turned to the provision that stated "the freedom of speech and of the press, and the right of the people peacefully to assemble and consult for their common good, and to apply to the Government for redress of grievances, shall not be infringed." Theodore Sedgwick of Massachusetts responded that he found the provision "trifling." Nobody questioned the right of the people to assemble. He feared the House was getting bogged down in minutiae. Several others in attendance agreed, arguing that the Constitution might as well state that a "man should have a right to wear a hat if hepleased."
The question seemed to be about the relevance of the provision. Responding to the arguments that had been presented, Representative Thomas Tucker of South Carolina moved to insert the words "to instruct their representatives" thus giving the right to assemble a purpose. Tucker's motion touched off considerable debate that focused on the idea of representation in Congress. Representative Hartley of Pennsylvania reacted strongly, arguing that instructing members of Congress was unnecessary and unwise. It was unnecessary because, according to Hartley, "it is presumable that the persons elected know the interests and the circumstances of their constituents..." Continuing, Hartley argued that "representation is the principle of our government; the people ought to have confidence in the honor and integrity of those they send forward to transact their business." Tucker's proposal was unwise because "instructions will never be resorted to but for party purposes, when they will generally contain the prejudices and acrimony of the party, rather than the dictates of honest reason and sound policy."
Representative Page of Virginia disagreed, asserting that "instruction and representation in a Republic appear to me to be inseparably connected" and "to doubt the authority of the people to instruct their representatives will give them just cause to be alarmed for their fate." But Representative Clymer responded that instructions might have the implication of binding the Representative to those instructions and that would be "a most dangerous principle, utterly destructive of all ideas of an independent and deliberative body, which are essential requisites in the Legislatures of free Governments..." Roger Sherman agreed:
I think when the people have chosen a representative, it his duty to meet others from different parts of the Union, and consult, and agree with them to such acts as are for the general benefit of the whole community....
What may be the consequence of binding a man to vote in all cases according to the will of others? He is to decide upon a Constitutional point, and on this question his conscience is bound by the obligation of a solemn oath; you now involve him in a serious dilemma. If he votes according to conscience, he decides against his instructions, he commits a breach of the Constitution, by infringing the prerogative of the people, secured to them by this declaration.
Sherman's point turned the debate. Members of the House were, by definition, representatives of their constituents. If they strayed from that they could be hurled from office. But in order to serve the district and the nation, members had to be free enough from the constituents to work in their interest even when the constituents might disagree with the elected representative's understanding of what those interests are. Instructing members would make it all but impossible to get beyond "party" and parochial concerns. And while this was always a concern, it was a particular concern with regard to constitutional questions, primarily because members had a special responsibility to act to uphold that Constitution.3
As we all know, the motion failed and today's First Amendment does not contain language regarding instructing members of Congress. But the debate that took place in 1789 is instructive on several counts. During the brief exchange, a theory of representation emerges that helps one to distinguish between popular government and popularity in government; between popular government and constitutional government. Members of the House and the Senate might indeed find it necessary to move beyond the wishes and desires of their constituents in order to serve them well. And this might be particularly true with regard to constitutional questions which more often than not are removed from popular debate and therefore require the time and the talent for deliberation and contemplation on the part of a member of Congress, along with the ability to distance oneself from parochial concerns. Instructing members of Congress gets in the way of constitutional government because it emphasizes popular choice over the public interest, satisfying public opinion rather than serving the public good.
The First Congress is notable for a number of similar debates that took place that demonstrated how members understood their obligation to interpret the Constitution. `Me extended discussions that occurred concerning the creation of the executive branch illustrate nicely how members tried to define the contours of executive power under the Constitution. Quite literally, they had to define what executive power means. In a similar vein, the debate over the Judiciary Act of 1789 - the act that established the federal court system - entailed extended discussion about the Constitution, the role of the judiciary, the scope of judicial power, and the relationship of the new national court system to the established states' judicial systems.
And the practice of constitutionalism in Congress did not begin and end in New York. For many years members of the House and Senate engaged in constitutional debate and championed competing interpretations of the document. One of the more famous debates transpired during the administration of President Andrew Jackson. Jackson had very definite views of executive power under the Constitution and expressed them with vigor. His assertion that the President possessed absolute authority over the executive branch of the government and, therefore, the power to hire and fire officers of that branch was challenged, however, by the most able orator of the day, Senator Daniel Webster. The Jackson-Webster exchange provides a most impressive illustration the nature of constitutional debate within the political branches.
There was a rich and important tradition of constitutionalism in Congress until relatively recently. It was a tradition that sprang from the earliest years of the Republic, was nurtured by the members' understanding of their responsibilities to the voters and the Constitution, and was fostered by the talents of some of the most able men of public affairs ever to serve in government. But times have changed.
Congress's Abdication of Responsibility
A second and very different constitutional conversation that took place in Washington, D.C. in 1954 might provide some premise with which to determine what happened to constitutionalism in Congress. The conversation took place at Doctors' Hospital between two members of the Supreme Court: Chief Justice Earl Warren and Associate Justice Robert H. Jackson, who was at the hospital recuperating from a serious heart attack that had occurred months earlier. Their conversation centered on the Court's impending decision in the school segregation cases that had preoccupied the attention of the nation for more than a year, collectively referred to as Brown v. Board of Education of Topeka Kansas.4
Ever since joiningthe Court, Chief JusticeWarren had busied himself in an attempt to achieve unanimous support on the Court for overturning the doctrine of separate but equal which had been established by Plessy v. Ferguson.5 Justice Jackson had proven to be somewhat of a thorn in Warren's side, however. Jackson had no doubts about the moral and political problems associated with segregation. But he did have some second thoughts about the Court's authority to do anything about it. For Jackson, the issue was the scope of judicial power as much as the constitutionality of segregated schools.
In several memos written by Jackson since the Court had heard oral arguments in the case the previous year, and in countless conversations with his clerks, the Associate Justice had roamed the judicial and legal mine fields that by then had come to surround the school segregation issue. For Jackson, "decision of these cases would be simple if our personal opinion that school segregation is morally, economically or politically indefensible made it legally so." But the laws of seventeen states and the nation's capital stood in the way, as did social custom and mores in a large part of the nation. Overturning law and custom, and reversing an earlier understanding of the Constitution would require a substantial mandate from the Constitution, and Jackson was not sure it was there.6
Turning to "the original will and purpose of those responsible for adoption of a constitutional document as a basis for its subsequent interpretation," Jackson had reached the conclusion that the framers of the Fourteenth Amendment had not given much thought, if any, to the issue of segregated schools. Indeed, the same Congress that proposed the amendment had established segregated schools in the District of Columbia. Likewise, education practice and custom in the states had not been altered by the Fourteenth Amendment. Jackson could find nothing in judicial precedent for support either. Finally, and begrudgingly, he wrote in the early Spring of 1954, that he simply could not find "in the conventional material of constitutional interpretation any justification for saying" segregated schools violated the Fourteenth Amendment.
Jackson's analysis had not gone unnoticed by Warren, who increased his lobbying to persuade Jackson to side with his colleagues. At one point, Jackson had contemplated writing a separate concurring opinion outlining his belief that the Congress had the authority to end segregation under the Fourteenth Amendment. But gradually the Chief Justice was able to prevail upon his colleague to ensure the Court spoke with a single voice.
What Justice Jackson had been unable to uncover in his extensive legal and political analysis could be found in Warren's reliance upon what might be labeled as the jurisprudence of a "living constitution." Looking to changed circumstances, Jackson, with Warren's guidance, could find authority for the Court to strike down segregated schools in the relationship of the Constitution and the Fourteenth Amendment to the "changes of conditions and public opinion always to be anticipated in a developing society." Jackson would favor overturning Plessy, then, convinced that "present-day conditions require us to strike from our books the doctrine of separate-but-equal facilities..." Warren's visit to Doctors' Hospital ensured his unanimous Court. Two days later, Jackson would travel to the Supreme Court to be present when Brown was handed down. Within a few months, he was dead.
The conversation between Warren and Jackson is lost in time. We do have the memos Jackson had written earlier, detailing how he had decided that he could not in good conscience go with the majority on the Court because, as he put it, to do so would be to move beyond the proper scope of judicial power. Jackson felt at that time that it was the job of the Congress to deal with the segregation issue - as the Fourteenth Amendment made clear - and just because it had failed to act was not justification for the Court to "promulgate law." But in the intervening months, Jackson's concern with the misuse of judicial power was supplanted by his personal aversion to segregation and the pressure to conform with the Court that Earl Warren had applied. Clearly, Jackson was uncomfortable with his position, but recognized the importance of a unanimous Court in such a controversial case.
My purpose in turning to this conversation is not to challenge the Court's decision in Brown, or to second guess it. Rather, it is to employ Jackson's misgivings to illustrate how Congress abdicated its responsibilities in this very difficult area of law and politics and the Court recognized a need to fill the void. With the Brown decision, the Court entered a stage of judicial policy making which has continued, with little interruption, ever since. Most students of politics and law refer to this as judicial activism, and critics of it blame the Court for engaging in policy making rather than interpreting the law. There is obvious truth to that assertion. But Jackson's memo helps us to understand that judicial activism is brought about by Congress abdicating its responsibilities as well as the judiciary usurping congressional authority. To paraphrase Justice Souter, who was asked during his confirmation hearings what the Court should do when Congress fails to act to uphold the Constitution, the Court has acted to "fill the vacuum." That is what happened in 1954, and it has happened frequently ever since. Judicial activism is as much a product of a Congress bereft of constitutionalism as it is the personal policy predilections of the members of the Supreme Court.
Excesses of Democracy
What has happened to constitutional deliberation in Congress? It has been supplanted by the trappings of what the Framers often referred to as "excesses of democracy." Simply put, it does not make very much political sense for a member of Congress to engage in constitutional interpretation. It usually involves time, considerable intellectual energy and talent, and seldom centers upon issues which translate easily into voter concerns. Moreover, in order to grapple with constitutional questions, an individual must possess a political ideology - a set of political principles which help him to define how he views political and constitutional questions - and be willing to employ that ideology when attempting to resolve a constitutional issue. But again, in a political environment in which public opinion polls determine members' actions, it is very difficult for a member of the House or a senator to feel independent enough or secure enough to not only espouse an ideology but to act upon it. In the vernacular of 1789, too many members of Congress act as though they are being instructed by the voters.
The Framers' understanding of representation has been transformed into something more akin to responding to voters whims. As a result, that aspect of representation that involves debate and deliberation of constitutional issues has been delegated by the Congress to the Courts. And as a result of this, we experience a more influential judiciary, a decline in the quality of political discourse in the Congress, and simultaneously, both public satisfaction and dissatisfaction with Congress as an institution: It serves our desires but fails to nourish our needs. We have a Congress that no longer "refines and enlarges" public opinion, it merely caters to it. Perhaps even more telling, we have a Congress which has forgotten how to approach constitutional deliberation.
A third constitutional conversation will serve to illustrate this last point. The popular reaction to the Supreme Court's flag burning decision, Texas v. Johnson,7 reached fever pitch, as you know, and led to demands for an amendment to the Constitution to protect the physical integrity of the flag. In the Congress, several proposals were forwarded, along with a proposed statute aimed at getting around the Court's decision in Johnson without having to amend the Constitution. Hearings took place in both chambers of Congress. Experts on the Constitution, the Court, the First Amendment, and politics generally were paraded before the judiciary committees in both the House: and the Senate. Hours of discussion took place before the proposed statute was passed. Within a year, it too was struck down by the Court. Again there was popular outcry, but the volume had diminished. Again there were calls for a constitutional amendment, but they were not as loud. Today burning an American flag is considered protected speech under the First Amendment.
A serious scrutiny of the debates surrounding the Johnson decision and Congress' reaction to it will reveal that almost no constitutional deliberation over the meaning of the First Amendment took place among the membership. Experts offered their opinions. But in almost every case, the members of the House and the Senate engaged in court-guessing rather than constitutional analysis: The members attempted to determine what the Court might think about this or that proposal rather than attempting to chart their own understanding of the First Amendment. It was as though there was tacit agreement among members of Congress that constitutional questions are the sole responsibility of the Court and members are relegated to trying to guess how the justices will react to whatever action they take.
If this is indeed the case, then Congress has abdicated its most important responsibility under our system of representative republican government - debating the fundamental political issues that confront the society as embraced in the society's fundamental charter.
There remains one area in which Congress has retained its ability to engage in constitutional analysis, and that is the war power. Without passing judgment on the quality of the constitutional analysis in this area that often emanates from Capitol Hill, members of Congress do not refrain from asserting that they possess sole authority under the Constitution to commit this nation to war. Of course, it should be pointed out that Congress engages in this debate for two reasons: The President usually articulates a contrary position, and the courts have refrained, so far, from getting involved. The courts have not allowed the Congress to escape responsibility in this very important area of constitutional government.
Congressional debate over the war power, however, is usually little more than an academic exercise members engage in when the chief executive has ordered the military into action without prior consent from Congress. The invasions of Grenada and Panama, for example, led some members of the House and Senate to call for a debate on whether or not the President had violated the War Powers Act. But assertions of presidential power, and the ability to bring military operations to a quick and successful conclusion, usually have reduced congressional debate to little more than exercises in hand-wringing.
The one notable exception to this, of course, was the recent debate in Congress over United States policy in the Persian Gulf. Although it took Congress almost six months to begin formal deliberations on the war power (Iraq invaded Kuwait in August of 1990, the United States responded immediately by deploying troops, and Congress began hearings on the war power in January 1991), when debate finally commented members in both chambers did attempt to determine the scope of congressional and presidential authority in this area under the Constitution, as well as the wisdom of United States policy in the Gulf.
In 1811, Representative Peter Porter of New York rose to address
his colleagues concerning their obligation to interpret and enforce
the Constitution. Taking issue with those in the House who felt the
Court possessed sole responsibility for determining the meaning of
the Constitution, Porter asserted that "every member has a printed
Constitution on his table before him - a Constitution drawn up with
the greatest care and deliberation..." According to Porter, it was
a constitution, "the injunctions of which, as we in our best
judgments shall understand them and not as they shall be
interpreted to us by others, we are solemnly bound, by our oaths,
to obey.8 His argument was met with
polite applause, but was followed in a few days by a similar
argument mounted in the Senate by Henry Clay of Kentucky, who
argued that his colleagues had an obligation "to make that
Constitution, which we have sworn to support, our invariable
guide."9 Such arguments are no doubt
still made on Capitol Hill and warmly received. And, sadly, usually
Dr. Eugene W. Hickok, Jr. is a Bradley
Resident Scholar at The Heritage Foundation and Associate Professor
of Political Science at Dickinson College, Carlisle,
He spoke at The Heritage Foundation on November 29, 1990.
ISSN 0272-1155. © 1991 by The Heritage Foundation.