Interpreting the Constitution in Modern Day America
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Interpreting the Constitution in Modern Day America

September 13, 2019

♪♪Music♪♪ So here’s the set up. In Marbury vs. Madison the Supreme Court
claimed the power of judicial review, which is to say, take
the text of the constitution, read the words of the
constitution and interpret them as they would a law and if they
found that an act of the legislature, state or national,
as in the case of Marbury, violated the constitution or
exceeded the scope of power was enacted in and outside the scope
of power of the enacting body, then they could invalidate it. Say the statute is
unenforceable, that statutes void, it’s unconstitutional is
what they would say. So that’s a pretty, it’s a
pretty serious power. Right? In a republic and the follow-up
question has and ought to be “well how often do they use
this? And what do they use it for?” And it turns out that, over the
trajectory of our history, the judicial review power has been
used more and more frequently by the court, by the Federal
courts, to invalidate acts of the Federal legislature and the
state legislatures and municipalities and local
governments, etc. In a whole lot of really important areas,
Alexis de Tocqueville felt, a young French guy who came over
with a friend in the uh Jacksonian era to study the
American prison system, got distracted by what he saw in the
experiment in self-governments and ended up writing this
massive, massively interesting book that some of you have read
or read at, called Democracy in America and de Tocqueville saw
the value of this exercise of the judicial review power to the
preservation of our system of government and noted, that at
that early state it appeared that, this is a quote, “there is
virtually no political question in the United States that does
not sooner or later resolve itself into a judicial
question”. I should say that that’s partly
due to the eventual wide spread popular acceptance of the notion
of judicial review. And also due to legislative
laziness. You know members of congress,
this is my own view, but members of congress also have a an
obligation to uphold the constitution as, as does the
President as they all swear an oath of office and so one can
argue they ought to be looking at legislation their considering
and deciding whether it’s constitutional or not in their
judgment before they pass it based on their reading of the
constitution, but lots of times we’ll see members of congress
faced with popular piece of legislation that may or may not
be constitutional thinking, “oh the hell with it, I’ll pass it. I bet my constituents will like
it and let the courts figure out whether it’s constitutional or
not, and they can take the heat”. If they invalidate it, it’s a
win, win, right? And so, that’s human nature. But that’s, that’s part, I
think, what’s resulted in the Judicial Branch getting all of
these. The Judicial Branch, as was
discussed earlier, the federal judiciary, non-elected; you’ve
got tenure for life, really, really hard to get rid of. We’ve only had one Supreme Court
justice impeached, Samuel Chase, and that was an unsuccessful
attempt. So those folks can say anything
they want to, at least in theory. Most major political questions
go to the court. The courts gonna decide whether
their constitutional or not. So that is powerful. What hesitation might we have? We’ve talked about benefits. Their unelected so they can make
these calls but you stop and think about it and this usually
kicks in about a minute after the court issues an opinion with
which we disagree, “hey, who are these people anyway? Why does this group of nine or
six or five or seven or as it’s varied in different times in
history, Why do they get to decide what the constitution
means? Who voted for them? What do they know?” At certain points we’ve had
decisions come out of the court that were so unpopular that they
get widely dismissed in the press. We’ve lived through a number of
them. Um Dred Scott, I’ll mention,
gave rise to the famous quote, the Dred Scott, “the opinion of
Chief Justice Taney was entitled to just as much difference as
the opinion of any non-drunks in a washing bar room”, or
something similar to that. So, so there’s a risk that comes
when the court exercises its judicial review power and
reaches a decision that’s not particularly popular. Now, so what this has inspired,
I believe this concern for the preservation of institutional
respect, uh legitimacy of the uh the sort of judicial
infrastructure, the powerful judicial infrastructure with at
its center piece the power of judicial review, that Chief
Justice John Marshall created. Essential to that is, is a
fairly delicate political balancing act. It could, but it doesn’t simply
issue decisions, a decision or judgment rather. It doesn’t simply say, “you win”
and then go about its business, or, you, now “you win kinda” but
“you sorta win”, so here’s, so here’s what you have to do. So that’s the result. Instead it gives us opinions
along with the judgments. And often more than one opinion. Used to be, interestingly in
the, this is true, this is true for the British system, that
almost every justice would issue his own opinion. They were called Seriatim
Opinions. Jefferson loved this idea. What this meant was, you knew
who won in a different, in a particular case, you had no idea
why they won which kept the judicial branch fairly weak. Uh lower courts had no idea what
rule to follow was because every judge had a different rationale
for the result in the case, so the lower court judges could
start over from scratch. John Marshall said, “We’re not
doing that any more. We’re gonna write one opinion.” He did this, a bit inside, but
by getting everybody to live together and banning spouses
from Washington, so no distractions you’re all in the
same boarding house. There is a fairly healthy and
interesting literature on this. And uh, so, you know so we’re
all gonna agree eventually, and in the major cases, he would
right the major opinions himself. Uh and it would be at one
opinion for the whole court. That was the rule for a long
time in the early nineteenth century and through that method,
the court became much more powerful than it had been. Speaking with one voice. This is why, this decision is
coming down the way it is and this is what everybody has to
do. From now on, all the lower
courts and everybody else who’s reading this. It’s not just the parties who
are affected by this. So, so what does that mean? The long opinion is going to
explain the rationale. Um that’s the way that the court
gives instructions to lower court judgments, lower courts. But at the same time, it’s, it’s
a public document so it’s giving information to us, the mass of
citizens who aren’t lower court judges, lower court federal
judges, who are invested in the system. And when we read it, and the
courts figured this out fairly early, some of us, especially
those who don’t agree with the, the judgment, with the result,
are gonna say, “wait a minute”, and we are back to where I was a
minute ago. “Who are these people? This doesn’t make any sense to
me?” So the court has, over the
years, had to come up with some way, essentially to, you can say
this two different ways. To exercise its judicial review
power responsibly and to sell itself to the citizenry. Being cause it’s an undemocratic
institution, we’re a little suspicious, we’re good
democrats, right? Little “d”. But we’re accepting of this
body, as long as we feel that it’s, it’s behaving responsibly. And what that means is, that
it’s exercising restraint. That it’s distancing the
individuals on the court in a persuasive way from the
substance of the decision. So, “you win”, but not because I
like you, you know or that’s what I want the result to be,
but “you win” because that’s what that’s what I have to
decide, because that’s what the law compels me to decide. Sometimes it’s easy. In non-constitutional cases it’s
much easier because we’ve got lot more detail in the statutory
directives and this sort of thing. Once you get into the
constitution though, as Justin has mentioned, I’ve mentioned a
little while ago, the terminology can be really vague,
suceptitible to multiple meanings. What is equal protection mean? What are privileges and
immunities? What is a republic form of
government? And so where you give that much
play space to the judges, in interpreting and applying the
constitution, they’ve got to come up with some persuasive
rationale for limiting their scope of action. Now, today, uh we’ve got a
number of these, and this is sort of constitutional
jurisprudence or decision making methodologies, so we’ve got a
number of these. I’m gonna talk, in an
introductory fashion, about two of them. Both of which you’ve heard of. Uh, then we’re gonna talk later
in the, the sessions, in greater detail about, some of these,
some of these in particular. The first one I’m gonna talk
about is Originalism or Original Intent, uh jurisprudence. And, and the other one is what
we call the Living Constitution. Uh, this notation that the
document evolves over time. Uh, both of these, uh highly
politically charged approaches to constitutional decision
making. Uh, their, their very
non-technical, there very much in the public domain. If you watch, uh Supreme Court,
uh, confirmation hearings or presidential debates, in
variably the question will come up, “What are you in favor? Are you an Originalist?” Uh, and that appeals to a
certain core of political constituency. “Do you believe in a living
constitution?” and that appeals to another core
political uh constituency. What I want to do, is, is
explain sort of what each of these is, is about. And you’ll have, have a feel for
this already to a certain extent. But then I want to talk about
the problems with each of them. Uh, and what I hope to leave you
with is, is a sense of “Gee. Neither one of these is really
maybe as good as it should be.” And maybe we should be looking
for something else, or maybe, maybe we really need to think
about this, um more than a lot of folks have. So, Originalism. What’s Originalism? What’s the predicate for
originalism? Okay, John Locke, uh English
political philosopher seventeenth century, says,
“Societies formed as a result of an agreement among the citizens
in a particular community”. We all get together, for what
Locke called the “social compact” or the “social
contract”, where we give up some power to a government and the
government gets to exercise that power as long as it’s following
the rules it’s legitimate and we’ll follow it, etc. Many of
the founders of the republic were Locke in’s. This “we the people” notion,
that’s textbook language for the creation of a Locke in social
compact. We the people come together
here’s the government, here’s what we delegate to the national
government, now let’s sit back, and let it, and let it operate. What does that mean when we come
to questions of interpretation of the terms of the deal? Well, what an Originalist will
tell you is that that we ought to essentially view this, this
constitutional compact as, as what it is, a compact or a
contract. And when we interpret contracts
under the common law, the, one of the principle goals is to
give intent to the intent of the parties to the contract. A lot of judges will do that. So you come in with, you know
I’ve got a contract for a guy to mow my lawn and, and the judge
will want to know “what do you think this contract meant? And what do you think it meant?” And if there’s a way to take the
words and match our expectations, then that’s the
result. So, Originalist will say, “What
we’re supposed to do with this is figure out what the parties
to the constitution, (later in time if we are talking about the
amendments, or the original text back in 1787 or 88 or whatever,
thought it meant), and then enforce that understanding.” As a Historian, I will tell you
this is extremely compelling. I love the idea that folks would
have to come to people like me, to interpret the constitution,
cause we don’t know what these people thought it meant. But it’s problematic, as, as
enticing as it might be to, to be personally have to confess
this. It’s problematic because, first
of all, we aren’t really sure who the parties were. If it’s a lawn moving service we
know because we signed it. But who are the parties to the
constitution? The delegates to the
Philadelphia convention? Why? They produced a draft that then
had to get approved by then state ratifying conventions. The state ratifying conventions? Why? Because not all of them had the
power to make it effective. Nine states had to sign off. So is it the ninth, New
Hampshire ratifying convention? I don’t know, but the document
says, “We the People”, so is it everybody? And who’s the people? White males? Uh everybody? Where are we supposed to go to
figure, figure that question out and that’s not an easy question
to answer. And once we do figure that
question out, we’ve got the question of ascertaining just
what the intent of that group was. And I’ll tell you that isn’t
easy. We could agree uh in this
circle, in this room uh on language. Big language and there would be
as many different reasons for adopting that language and
understandings of what that language meant as there are
people in the room. SO is it my intent, is it some
composite? And this is especially
exaggerated, this problem in the content of the constitution, if
we’re looking to the framers because they didn’t keep
records. All we’ve got is Madison’s notes
that came out decades later, so we don’t really know. We only know what Madison said
they debated. So what do we go to? Correspondence? The Federalist Papers? And this is what judges who
apply this will commonly do. The Federalist Papers are
actually advocacy pieces for the constitution that appeared in
newspapers in New York during the New York Ratification
Convention Debates. Why do, do we care what they
said? I mean they’re well written,
real interesting, but why should they have any particular legal
power in interpreting what “we the people” intended this
document to mean? Um, these are just some
suggestions of the problems of applying Originalism. And I think, I think it, it
should be a part of the Originalist exercise to
acknowledge these problems and, and to try and, and figure out a
way to deal with them, if you’re, if you’re committed to
that notion. Now, a few brief words about,
um, the Living Constitution. All right, this is a solution to
the problem of Originalism. Two potential predicates. One is, okay it’s a contract,
but the contract parties have changed. SO I have my lawn mowing deal
and it survives the contract through my kids and your kids,
you’re the lawn mower, and two hundred years later, there’s
people we can’t even imagine who are part of this deal. Why do we care what you and I
think it meant? It really should matter just
what they think it means in the future. “We the People” have expanded,
we have new parties so let’s look at modern interpretations
or beliefs about the values that are entwined the text in the
constitution. The supporting argument for that
is, the framers used really big words susceptible of multiple
interpretations. They must have intended that we
do that, because they would realize, they’re not stupid,
that there’s no way for us to figure out what they thought
these words meant. Due Process? Equal Representation? No, children, grandchildren, you
guys wrestle with these from one generation to the next, which
actually is consument with what, what Justin’s suggested
Jefferson view was, about rewriting the constitution for
every uh, for every uh, generation. But this isn’t problem free
either, of course, because you say, okay, modern generation I’m
all for that, well how do you figure that out? How do we know what the modern
generation believes is cruel punishment? I don’t know. Again, the problem is, if we’re
looking at our understanding, everybody’s got a slightly
different view on that. Is it a majority view? Well, that doesn’t seem right. Justice Skelium, among others, I
think correctly said that, “his job as a justice is to tell the
majority to take a hike”. He’s protecting the rights of
the document and the minorities. The majority always wins. That’s just legislation. Right? The court’s there for another
purpose which is protecting something different. So, there’s problems with this
approach too. It recognizes changed
circumstances. It recognizes the words are
susceptible to multiple interpretation but it’s not
really clear that it gives us any concrete means that would be
satisfying to everybody or even the majority, of interpreting
the constitution in such a way that we’re satisfied the judges
are restrained in the exercise of the judicial review power and
not simply coming up with a decision “they” think is right
and then explaining it by references to other things. Which, by the way, is what
opponents of Originalist decisions will say. SO, to finish on this, as I
said, we’ll both be talking about this a little bit more, um
later. What I want to leave you with is
not a feeling, you know, one’s right and the other’s wrong,
it’s that they’re both really, really complicated. And before we start to embrace
one, before we even worse , start pitching one to everybody
else, I think, it’s, its, only responsible to sit down and
reflect on the difficulties and, and acknowledge the validity of
the other position. Uh, and that’s how a democracy
is supposed to work anyway. In my view. Thank You. (Applause) (Music) Freedom 101
is made possible by generous support from Woody Young and the
University of Oklahoma Alumni Association Freedom 101 is a
program of the Institute for the American Constitutional Heritage
at the University of Oklahoma. For more videos and podcasts
visit (Music)

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