How To Interpret the Constitution (and How Not To)

The best book about the constitution in two hundred years Akhil Amar’s America’s Constitution: A Biography is the second best book ever written about the U.S. Constitution. The best, of course, is The Federalist—but this may be unfair, as it requires counting a coauthored serial work (by Alexander Hamilton, John Jay, and James Madison) that first appeared as a series of newspaper essays, later collected into a single volume. Still, The Federalist, considered as a whole, counts as the most important single exposition of the U.S. Constitution, masterfully, lucidly, and colorfully written by a marvelous composite political and constitutional theorist (“Publius”); definitive, or nearly so, in its treatment of its subject (though not without its doubtful points); unsullied by trendiness or time-bound matters of little significance; and, justifiably, of enduring influence on all subsequent understanding, interpretation, and application of the Constitution. But America’s Constitution comes in an amazingly, almost disturbingly, close second. Many of the same things can be said of America’s Constitution as can be said of The Federalist. America’s Constitution is an absolutely spectacular, magnificent work of scholarship. It is encyclopedic in its knowledge, dazzling in its insights, definitive (or nearly so) in its treatment of topic after topic, lucid and comprehensive without being ponderous, pretentious, or tedious in the slightest. It is, other than The Federalist, the best book on the U.S. Constitution ever written, bar none, bound to become a standard reference for constitutional scholars for decades to come. It beats out for second place on the all-time constitutional hit list such distinguished rivals as Joseph Story’s three-volume Commentaries on the Constitution of the United States (1891) (#3) (comprehensive and brilliant, but often tendentious); Alexis de Toqueville’s Democracy in America (Vol. I) (1838) (#4) (not as comprehensive in its discussion of the Constitution, but unfailingly sound); and James Kent’s four-volume Commentaries on American Law (1826-1830) (#5) (excellent but lengthy and imperfect).

An admission of bias, which may lead some to discount my praise a few notches: Akhil Amar is an old friend of mine. We were accidental roommates at Yale Law School during our second year of law school, a little over twenty years ago. (His scheduled roommate didn’t show up; I was transferring in and needed a room.) We talked and argued much that year and the next (Amar is a liberal Democrat; I am a conservative Republican) and have remained in touch since then.

Part of what makes America’s Constitution: A Biography distinctive is its faithfulness to the Constitution’s text. The narrative is organized by the text—by the document, not by cases. The book is about the meaning of the Constitution’s words, not about the Supreme Court or its decisions (except, from time to time, as cases help illustrate an insight into textual meaning). The first appendix is the text itself—an annotated Constitution, with margin note page number references to Amar’s discussion of the language. Surprisingly, one can think of few books about the U.S. Constitution that focus on the document itself, other than treatises—and not all treatises even do this.3 Most books about the Constitution are not about the Constitution, but about judicial doctrine, institutional practice, or specific constitutional issues. Thus, part of what makes it relatively easy to rank Amar’s book so high on the all-time list of books about the Constitution is that there are so few of them. Amar’s book is treatise-like in its organization, breadth, and comprehensiveness, but immensely superior in terms of readability and accessibility: Imagine a treatise that reads like a great historical narrative—or, as Amar’s subtitle not inaccurately advertises, “a biography.” The combination of excellent textual exegesis and good historical storytelling make this volume singular.

Putting the two terrible Ninth Amendment paragraphs to one side, America’s Constitution: A Biography, considered as a whole, cannot fairly be taken as an argument for the modern “living constitution” argument that the words of the Constitution are for succeeding generations (of judges, usually) to infuse with the meanings they choose.

Amar’s interpretive methodology is one of original-meaning textualism, of a generous but still rigorous type. His approach places him, oddly, in common cause with judicial and legal conservatives, not freewheeling liberals. Although Amar is a political liberal, he does not let his politics drive his textual interpretation. “Liberals” can learn a lesson from this. They can learn the further lesson that original-meaning textualism is no mere cover for conservative political preferences, that it can yield surprisingly liberal political results on occasion, and that the methodology cannot fairly be reduced to a caricature.

Wouldn’t it be better to teach “constitutional law” by teaching about the text of the Constitution, rather than focusing single-and-narrow-mindedly on Supreme Court doctrine in cases that, with alarming and increasing frequency, have precious little to do with the document itself? Wouldn’t it be better to study America’s Constitution: A Biography than any of the several carbon-copy casebooks that go by some variation of the name Cases and Materials on Constitutional Law?

It depends (I suppose) on what one is trying to teach and learn. If one is concerned only with Supreme Court doctrine, then one could do without Amar (and for that matter without the Constitution itself, for the most part). But surely that view—the dominant view in law schools today—is a defect with our present teaching canon of constitutional law. One can certainly respect the value of teaching important Supreme Court decisions explicating the broad themes of the Constitution and specific provisions thereof, and of studying cases that have shifted the way “constitutional law” has developed away from the document and toward changing doctrine. A course in constitutional law that ignored these developments would be deficient in important ways. But it is certainly a far greater sin for a course in constitutional law to ignore the document itself.

That is the problem with most constitutional law courses in American law schools today, and with most (if not all) casebooks used in such courses. They choose pretty much the same cases (and omit the same hugely important cases, like Dred Scott). They tend to focus only on cases—and almost exclusively recent U.S. Supreme Court decisions—as the source of constitutional law, ignoring how often, and with such great consequence, the Constitution is interpreted and applied by Congress, the executive branch, lower federal courts, and all branches of state government. They largely ignore history: The reader can find endless pages of note cases discussing the twists and turns of the Supreme Court’s most recent three-part, two-tiered doctrinal test over the course of the last twenty-odd years, but almost no history of the formation of the Constitution and historical treatment of its principles in the first 150 years of our nation’s history. And most glaringly of all, most modern constitutional law casebooks largely ignore the Constitution itself—the document that is ostensibly the subject of study and the source of “constitutional law.”

I offer a modest proposal: Throw out the casebooks altogether and teach the constitutional law course as a Great Books and Great Cases on the Constitution course. Assign The Federalist and Akhil Amar’s America’s Constitution: A Biography. Then, teach, in detail, only the fifteen or twenty most significant constitutional decisions of the Supreme Court and of the political branches, unedited, as case studies touching on most (but not all) of the more important subject matter, doctrinal, interpretive, and history-impacting developments in American constitutional law over the course of 200-plus years. But deliberately make no attempt to cover every case or teensy-weensy ripple of modern doctrine, recognizing that those cases are often here today and gone tomorrow. Emphasize how to think about constitutional issues rather than the latest judicial thinking about those issues, for that will be what is of enduring value to law students from a law school course in constitutional law.

Pro-life folk on this forum may be able to recall something about a former Democrat Governor Pennsylvania. Robert P. Casey briefly mentioned what he was taught in law school:[1]

But, in between 1986 and 1990 campaigns, I came face to face for the first time with a conflict between my personal and public position on abortion, and what I regarded as the duty imposed by my oath of office to "support, obey, and defend" the Constitution of the United States. As a lawyer, I was trained to believe that the Constitution means what the United States Supreme Court says it means.

Governor Casey wasn’t the only person deceived in law school. A law professor admitted that Harvard didn’t have a copy of the Constitution on hand, when he was a student there:[2]

How many of you received your Constitution when you came in tonight? Well, you are going to need one! We are going to read it and that is a radical thing! When I was a student at Harvard I took Constitutional Law class and we never read the Constitution. We only read the opinions of the Supreme Court about the Constitution. Tonight as we sketch out a blueprint to for state action to recover constitutional liberty and law for America, we are actually going to look at the document and read what it says.

But all this is common knowledge, right? It’s been a matter of public record for at least a decade:[3]

Mr. Chairman, as a nonlawyer, I count it a high privilege to serve as a Member of this Subcommittee. However, as a student of the United States Constitution, I would not be truthful if I said that I have always understood as perceived by this nonlawyer to be a disconnect between the plain wording and construction of the Constitution and the opinions handed down by the Federal judiciary as, quote, ''constitutional,'' end quote.

But this perceived disconnect was explained to me with such clarity by, and rightfully so, a lawyer when I read the testimony of Dr. Leo Graglia, before the House of Representatives Judiciary Committee's Subcommittee on Courts and Intellectual Property, of May 15, 1997. Dr. Graglia, who is the A. Dalton Cross Professor of Law at the University of Texas law school, profoundly observed that, quote, ''the first and most important thing to know about constitutional law is that it has virtually nothing to do with the Constitution,'' end quote. At that point, the scales fell from my eyes, and I realized that I cannot confuse what is taught in our Nation's law schools and what is expounded by so-called constitutional scholars on the 24-hour news talk shows with the work of folks like Madison, Hamilton, Jay, and Washington, and others at Philadelphia in 1787, or for that matter the first Congress in 1789 or the 39th Congress in 1866.

Jay Leno wasn’t joking when he stated, "They keep talking about drafting a Constitution for Iraq. Why don't we just give them ours? It was written by a lot of really smart guys, it's worked for over 200 years, and [heck], we're not using it anymore."[4]

Dr. Michael S. Greve is the John G. Searle Scholar at American Enterprise Institute. He wasn’t joking, when he wrote this several years ago: [5]

Beneath the Supreme Court's many astounding decisions in its 2002-2003 term, and the shifting judicial coalitions that produced those results, runs a unifying basso continuo: Constitutional law, in the sense of judicial decisions that are guided--at least in aspiration--by the text, structure, and logic of the written Constitution, is dead. It has been replaced, often as a matter of explicit doctrine, with subjective judicial impressions of popular sentiment or political utility.

In the new age of postmodern constitutional law, one authority is as good as another. And so the Federalist Outlook bids farewell to constitutional argument….

How did it happen? A historian may have the answer:[6]

A Pulitzer Prize-winning historian and author is warning that widespread ignorance of American history among students and teachers at high schools and colleges is a major threat to the nation's security.

David McCullough sounded that alarm on Thursday in an appearance before the Senate Committee on Health, Education, Labor and Pensions. He said "we are raising a generation of people who are historically illiterate" and ignorant of the basic philosophical foundations of America's constitutional free society.

According to McCullough, who is a past president of the Society of American Historians, American citizens cannot function in a society if they do not know who they are and from where they came. He said only three colleges in the United States require a course on the Constitution in order to graduate -- and those are the three major military academies (the U.S. Military Academy at West Point, the Naval Academy at Annapolis, and the Air Force Academy in Colorado Springs).

Boumedine v. Bush might force some folk to start examining Article III and executive review. But people have been so accustom to letting the U.S. Supreme Court dictate so much that they may have a permanent preference for the oracles emanating from those black-robed terrorists. “My court, right or wrong!” A recurring argument against the dissolution of communism in Eastern Europe was that a people long accustomed to tyranny couldn’t cope with freedom.

[1] http://prolife.liberals.com/articles/casey93.html Dred Scott, Again By Robert, P. Casey, Governor Pennsylvania. In his first Inaugural Address, Abraham Lincoln, in referring to the Dred Scott case, expressed the view that the other officers of the government could not be obligated to accept any new laws created by the Court unless they, too, were persuaded by the force of the Court's reasoning. Any other position would mean, in his view, that "the policies of the government upon vital questions, affecting the whole people [could] be irrevocably fixed by decisions of the Supreme Court, the instant they are made, in ordinary litigation between two parties, in personal actions." If that were to occur, said Lincoln, "the people will have ceased to be their own rulers, having to that extent practically resigned the government into the hands of that eminent tribunal." After much thought and reflection since 1987, I must confess that I am more and more persuaded that Lincoln's view should be the standard for pro-life elected officials in 1993 and beyond.

[2] http://www.ccomcor.org/stateinterposition.htm Dr. Herbert W. Titus, J.D., Founder and Director of The Forecast Foundation, Speech at New Hampshire Center for Constitutional Studies Conference, September 2000. STATE INTERPOSITION http://www.lawandfreedom.com/site/aboutus/hwt.html Mr. Titus holds the J.D. degree (cum laude) from Harvard and the B.S. degree in Political Science from the University of Oregon from which he graduated Phi Beta Kappa. He is an active member of the bar of Virginia and an inactive member of the bar of Oregon. He is admitted to practice before the United States Supreme Court, the United States District Court for the Eastern District of Virginia, the United States Court of Claims, and the United States Courts of Appeals for the Sixth, Tenth, District of Columbia and Federal Circuits. His constitutional practice has taken him into federal district courts in Alabama, Arizona, North Carolina, Oklahoma, Texas, and the District of Columbia and the state courts of Texas and North Dakota.

[3] http://commdocs.house.gov/committees/judiciary/hju94458.000/hju94458_0.HTM#16 Mr. HOSTETTLER.

[4] http://www.govtrack.us/congress/record.xpd?id=109-h20060919-65 The United States House of Representative, Sep 19, 2006, Section 65. Now, we are doing a great many things in this Congress that neither I nor anyone else can find a sound basis for in the Constitution, and this is pretty widely recognized. As evidence of that, I have, and I think this was a joke from Jay Leno, that is one of the places that it was heard.

[5] http://www.aei.org/publications/filter.,pubID.18112/pub_detail.asp The Term the Constitution Died,

By Michael S. Greve , Posted: Friday, July 25, 2003.

[6] http://headlines.agapepress.org/archive/4/112003f.asp

most modern constitutional law casebooks largely ignore the Constitution itself—the document that is ostensibly the subject of study and the source of “constitutional law.”

there are some people who are writing on the subject who do go into the Constitution with the intent to read it, understand it, and respect it

. . . as I know that you for one do.
The question is, on which topics does Justice Kennedy read the Constitution, and on which does he not do so? How coherent is he? It seems that we are always on the ragged edge of having a majority which consistently does so - and likewise of having a majority which consistently does not do so. But with Roberts for Rhenquist we held our own and with Alito for O'Connor the Constitution picked up half a vote.
My college studies were in engineering, not law, and the only law course I have had was entitled "Cases on Contracts." The instructor of which asserted that engineers typically were capable of understanding law. Law, perhaps - but are "constitutional law casebooks [which] largely ignore the Constitution itself" actually law? Not by my understanding of the word. Judicial lawlessness, more like.
But, in effect, I have been studying the First Amendment for many years. Ever since the Carter Administration, the time frame in which I read Reed Irvine's "Accuracy In Media" ("AIM") report for a couple of years, and came out convinced that "the media" were in fact "biased." But I dropped my subscription after that - I was convinced, and further examples proving the same thing that I already agreed with quickly became "a twice-told tale." The issue for me since then has not been "whether" but why. I have not, as some are wont to do, resorted readily and comfortably into a whine about the First Amendment protections of those with whom I have disagreed. I respect the Constitution and its authors far too much for that. I have been determined that the First Amendment was fine as is - provided that we understand its principles, and that we understand the facts that we are bringing to it.
It seems to me that we have, memory of living man not to the contrary, been led to misunderstand the facts of "the press" in our milieu. First, "the press" does not refer specifically to journalism. Book printers, after all, are under First Amendment protection as well. So, right there, we know that journalism is cooking the books when it calls itself "the press." It seems to me that the most satisfactory generalization of "the press" is to say that those who have a press spend money for the press and the ink and paper - and are free to attempt to propagate their opinions in that way. Furthermore, the freedom of religion clauses exclude the possibility of government defining truth or objectivity for the press. I understand "freedom of the press" to be the freedom of the people (individually or in voluntary association) to spend their own money in any medium, whether or not ink and paper are involved to promote the ideas they want others to accept.
Not only is journalism not the sum of "the press," journalism as we have known it since the Civil War era scarcely even existed in the founding era when the First Amendment was written and ratified. Because although there were of course "newspapers" in the founding era, the printers thereof did not in general have a systematic source of "news" to which the general public was, in principle, not privy. That awaited the telegraph and the 1848 founding of the Associated Press. Consequently the "newspapers" of the founding era were not in the business of selling "news" as the extremely perishable commodity which we associate with journalism. And not being in that business, newspapers typically were weeklies rather than dailies - and some had no fixed deadline and just went to press when the printer was good and ready. Newspapers typically were intimately associated in the reader's mind with what we would now call the "editorial page." Hamilton sponsored a paper to attack Jefferson - and to defend against the attacks of the paper Jefferson sponsored for the reciprocal purpose. Newspapers were independent of each other, and openly associated with particular political perspectives/parties.
In short "newspapers" of the founding era were more like our modern biweekly political magazines than like The New York Times of today. The newspapers (and broadcast journalists) of today are linked, even made dependent on each other, through the medium of the Associated Press. Being in the business of selling news, much of which originates with reporters associated with other newspapers, the newspaper as we have known it all our lives has been a promoter of "journalism" much more than it is of its own stated "editorial" policy. And the fundamental of journalism - that today's news is important and yesterday's news is "yesterday's news" - is inherently radical. If paying attention to the news is important, and if today's news is always more dramatic than yesterday's news, that implies that the people in charge of things must be letting things get out of control. Journalism is always "the critic," not Teddy Roosevelt's "man who is actually in the arena."
But it is not true that that makes journalism independent of politics. To the contrary, politicians can position themselves as critics, too - and, in doing so, align themselves with journalism and establish themselves in symbiosis with journalism. In fact, certain politicians do it all the time. In so doing they function somewhat like journalists, but they never take on that title - that would be bad form, bad PR. Journalists have far more subtle ways of discussing the alignment of politicians. Journalists apply positive labels to politicians who operate in symbiosis with themselves. Labels such as "progressive" and "liberal." Such politicians can, without changing their political philosophy at all, get hired as journalists - and, if so, other journalists accord them the label "objective" as a matter of course. The etymology of the word "liberal" is a case study in media bias. According to William Safire,
In the original sense the word described those of the emerging middle classes in France and Great Britain who wanted to throw off the rules the dominant aristocracy had made to cement its own control. During the 1920s the meaning of the word changed to describe those who believed a certain amount of governmental action was necessary to protect the people's "real" freedoms as opposed to their purely legal - and not necessarily existent - freedoms.
This philosophical about-face led former New York governor Thomas Dewey to say, after using the original definition, "Two hundred years later, the transmutation of the word, as the alchemist would say, has become one of the wonders of our time."
According to the preface Hayek wrote for the 1956 edition of The Road to Serfdom:
The fact that this book was originally written with only the British public in mind does not appear to have seriously affected its intelligibility for the American reader. But there is one point of phraseology which I ought to explain here to forestall any misunderstanding. I use throughout the term "liberal" in the original nineteenth-century sense in which it is still current in Britain. In current American usage it often means very nearly the opposite of this. It has been part of the camouflage of leftist movements in this country, helped by the muddleheadedness of many who really believe in liberty, that "liberal" has come to mean the advocacy of almost every kind of government control. I am still puzzled why those in the United States who truly believe in liberty should not only have allowed the left to appropriate this almost indispensable term but should even have assisted by beginning to use it themselves as a term of opprobrium.
Hayek (b. 1899) actually learned English in America in 1923-24 (which skill enabled him, an Austrian, to become a professor in England before WWII), and yet he did not note the transformation of the word "liberal" which was an accomplished fact by the Roosevelt Administration.
The Right to Know

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