Friend: ‘You have given us a good Constitution.’
Gouverneur Morris: ‘That depends on how it is construed.’
Last year was the year of the bicentennial of the US Constitution. Many celebrations were planned and held, not only in Philadelphia, where the framers had met from May to September in 1787, but in many American cities, large and small. The point of these ceremonial events was not only to recall a moment in the nation’s past but also to educate the public about the meaning and value of the Constitution. None of these celebrations, however, served the latter purpose so well as two wholly unanticipated events: the Iran-Contra hearings and the Senate Judiciary Committee hearings on President Reagan’s nomination of Judge Robert Bork to the Supreme Court. In both cases national telecasts offered Americans a civic education. They now have a far greater understanding of the Constitution than they could possibly have gained from a dozen or more Bicentennial celebrations.
Judge Bork had a definite opinion about Constitutional interpretation and judicial review. He stressed the necessity, as he put it, ‘to establish the proposition that the Framers’ intentions with respect to Freedoms are the sole legitimate premise from which constitutional analysis may proceed.’ In 1982 Bork objected to use of the equal protection clause of the 14th Amendment ‘to protect groups that were historically not intended to be protected by that clause’, and he criticised the Supreme Court’s efforts to extend the application of the clause to women, arguing that the clause was originally intended only to apply to racial discrimination. Apart from its narrow-mindedness, this interpretative ploy is faced with a special set of difficulties. Moves to uncover the authors’ original intentions are frequently frustrated, not because of any lack of ingenuity on our part, but because the text contains so little trace of the concrete proposals the authors had in mind in the first place. More to the point, the Framers may have chosen language which in its simplicity and generality leaves the interpretation of key terms and phrases open because they did not wish their substantive intentions to settle subsequent efforts to interpret the meaning of the text. As Ronald Dworkin has argued, if they had truly wanted us to be guided by what they specifically had in mind by ‘justice’, ‘cruel and unusual’, ‘right’ and ‘wrong’, they would not have used such general language, but offered more evidence of their own conceptions: not in great detail necessarily, but they would have done more than name the concepts themselves. This feature of the Constitution’s language also makes it compelling to regard the Supreme Court as, in Woodrow Wilson’s phrase, ‘a kind of Constitutional Assembly in continuous session’.
If we think of the Constitution as a work of fiction and of its central concepts, equality, justice, freedom of speech, as the characters, the authors’ relation to the text may not have been so different from that of an author like Jane Austen who, in John Bayley’s words, ‘set her characters going to see what they might do’, or Pushkin, who in the midst of composing Eugene Onegin wrote to a friend: ‘My Tatiana has gone off and got married. I never would have expected it of her.’ No doubt the drafters of the 14th Amendment would have been as surprised to learn that the Court, many years later, found separate-but-equal education to be in violation of the equal protection clause as they would have been by some of the recent affirmative action cases: but the wording of the Constitution and of the Amendments strongly implies that the Framers, like Pushkin, would have been open to the unexpected.