Announcer: From the nation's capital, The American
Enterprise Institute for Public Policy Research
presents "Public Policy Forums," a series
of programs featuring the nation's top authorities
presenting their differing views on the vital
issues which confront us.
Prof. Goldwin: Our subject, how to interpret
the Constitution.
I am Robert Goldwin, Director of Constitutional
Studies of the American Enterprise Institute,
and I will serve as moderator.
And to help us understand this issue and think
it through for ourselves, we have with us
a distinguished and expert panel of judges
and scholars.
To my far right is Laurence Tribe, the Ralph
Tyler Professor of Constitutional Law at Harvard
Law School.
Professor Tribe is the author of many books
and articles including "Constitutional Choices,"
"God Save This Honorable Court," and the widely
used textbook, "American Constitutional Law."
On my immediate right is Circuit Judge Abner
J. Mikva who serves on the United States Court
of Appeals for the District of Columbia.
Prior to his service on the bench, Judge Mikva
was elected five times to the U.S. House of
Representatives as a Democratic Congressman
from Illinois.
On my immediate left is Circuit Judge J. Clifford
Wallace who serves on the United States Court
of Appeals for the Ninth Circuit.
Judge Wallace was previously a United States
District Judge for the Southern District of
California.
Finally to my far left is Walter Berns, the
John M. Olin University Professor at Georgetown
University and an Adjunct Scholar at the American
Enterprise Institute.
A political scientist, Professor Berns also
is the author of many books and articles,
including "In Defense of Liberal Democracy"
and soon to be published "Constituting America."
Recently, the nation has had an extremely
unusual public exchange of views on the issue
of how to interpret the Constitution, with
the Attorney General of the United States
on one side of the argument and a sitting
Justice of the Supreme Court on the other.
Speaking before the American Bar Association,
Attorney General Edwin Meese argued that the
only legitimate way for courts to interpret
the Constitution is to be guided by the original
intention of those who wrote and ratified
the document.
"Judges who depart from that standard of interpretation,"
he warned, "Substitute their own personal
whim for the will of the American people."
"When that happens," he said, "The idea of
democracy has suffered and the permanence
of the Constitution has been weakened.
A constitution that is viewed as only what
the judges say it is, is no longer a constitution
in the true sense."
Associate Justice William Brennan soon after
expressed a sharply different view of this
jurisprudence of original intention.
In a speech at Georgetown University, he argued
that it is arrogant to pretend that, from
our vantage, we can gauge accurately the intent
of the Framers.
"Typically, all that can be gleaned is that
the Framers themselves did not agree and hid
their difference in cloaks of generality.
Those who would restrict claims of right to
the values of 1789 specifically articulated
in the Constitution turn a blind eye to social
progress and eschew adaptation of overarching
principles to changes of social circumstances."
These two statements racket the problem of
how to read and apply the Constitution when
we need its guidance in making laws, executing
the laws, or deciding legal controversies.
Mr. Meese and Justice Brennan point out clearly
and forcefully the difficulties and the dangers.
On one side, if we disregard the intention
of the authors, it may lead to disregard for
the text, the words and provisions of the
Constitution and what they were intended to
mean.
What then, other than the personal preferences
of the judges, will be the law?
As Mr. Meese would ask, "If the Constitution
is only what the judges say it is, is there
a Constitution?"
On the other hand, Justice Brennan points
to difficulties with the attempt to find the
original intent of the Framers because they
disagreed on much in the Constitution while
it was being written and subsequently.
And even if the original intention can be
known, he asks whether we can allow ourselves
to be held back by the views of a time long
dead and gone.
Must we not read the Constitution in a way
that permits social progress in accord with
the times?
According to these two opposing views, if
we follow the lead of the Attorney General,
we have a sense of constitutional stability
but the danger that an 18th-century document
is used to prevent 20th-century social progress.
And if we follow Justice Brennan's lead, social
and political change is facilitated, but we
run the risk of lawmaking by the courts, constitutional
amendment not by the amending process but
by judges.
Now, with the problem thus before us, gentlemen,
I put the same question to each of you and
ask, what is your answer?
How should we interpret the Constitution?
Judge Mikva?
Judge Mikva: At the risk of trying to meld
the unmeldable, neither Justice Brennan nor
Attorney General Meese said what the other
said they said.
Justice Brennan never said that the Constitution
is what the judges say it is, and Attorney
General Meese doesn't really wanna spell every
S like an F and insist specifically that the
Constitution can only mean what it says and
what was done in 1789.
I think the paragraphs that you've quoted
are the polarizations of this constant dilemma
that we've had since the republic started.
Obviously, the Constitution has meanings.
It is intended as limitations.
It used to be taught in law school when I
was there as a course in Constitutional Limitations,
and clearly, it is intended to limit not only
what Congress can do but, in turn, what the
judges can interpose in it.
Take, for example, the issue of voting, something
I know a little bit about.
As late as the 1860s, when the Fourteenth
Amendment was adopted, there were a lot of
limitations on who could vote in this country.
Women couldn't vote, people who didn't own
property couldn't vote, slaves couldn't vote.
And even when the Fourteenth Amendment was
adopted and slaves could vote specifically
in the Constitution, there were still these
other limitations.
But by the time the 1950s came around, we
had removed by constitutional amendment and
otherwise, the limitations on property holdings,
the limitations on women voting.
I don't think it was unreasonable for the
court in Baker versus Carr to say that if
sex and race and property are not relevant
limitations on the right to vote, then, clearly,
geography should not be a limitation on the
right to vote.
And I think that today, even the more conservative
scholars would acknowledge that Baker versus
Carr was not a revolutionary break from constitutional
law.
So, I would say that you have to read what
both the Attorney General and Justice Brennan
say and remember both of them when we're trying
to decide these awesome cases.
Prof. Goldwin: Judge Wallace, what's your
answer?
How should we interpret the Constitution?
Judge Wallace: Well, I suppose the basic question
is, "How do we provide for social change?"
The focus is always on the courts for some
reason, and perhaps during this next hour,
we'll be able the ventilate why those reasons
are.
But the Constitution set up a means of governing
a people and it didn't allow just the courts
that responsibility.
Indeed, it didn't go with the main responsibility.
And we have a tendency to look at the courts,
I sometimes think, in a vacuum, without recognizing
that the Framers, in their wisdom, had an
overall process for governing the people.
The idea as I understand it was that the people,
through their elected representatives, would
provide the voice for social change.
I think if you believe in this basic democratic
process, it governs how you feel about the
courts and what their role is in interpreting
the Constitution, and then with certain individual
rights that are protected by the Constitution,
certain processes.
Aside from those areas, that the courts would
allow the people's representatives, the elected
representatives, to make their decision about
social change even though the court sitting
in its position may think politically or sociologically
it's a wrong decision.
The courts, in essence, in this role are anti-democratic.
They can overrule the majority.
And when there are lifetime judges exercising
this very important power, it seems to me
that they need to be wary of these anti-democratic
forays and be careful about allowing the legislature
and the executive to carry out their responsible
positions under the Constitution.
So, if there is something to restraint and
it means that, I tend to think restraint more
as respect for the other branches, and I would
align myself, as far as my basic philosophy
is concerned, in that area.
Prof. Goldwin: Professor Tribe?
Prof. Tribe: It's obviously a very large question
to which we're asked to give a quite brief
answer.
It seems to me that in answer to the broad
question, "How should we interpret the Constitution?"
it's important to begin with the fact that
it is a living legal document.
It is a legal document designed to endure
and to constitute a society, a political society,
but it is a legal document.
Reading it is radically different from the
process of writing one of your own.
There are many things I would like to have
in the ideal Constitution.
Occasionally, I have helped other countries
write them that I can't find in our Constitution.
But on the other hand, trying to read the
Constitution in accord with the specific brainwaves
and mind states of those at the time they
drafted it who were the authors of the document,
would I think, quite paradoxically, be incompatible
with the broad, original intent of the Framers,
which was to launch into history a document
that would endure and that would evolve.
When they wanted to be very narrow and precise
and specific, they knew how.
They talked about a requirement that the president
be 35, not be sufficiently mature.
On the other hand, in other parts of the Constitution,
they spoke more capaciously.
They talked about cruel and unusual punishments,
about the privileges of national citizenship,
about due process of law, about equal protection.
It seems to me therefore that our task is
to read and understand the text in light of
its context and in light of its structure,
of course focusing on the intent of the document
as a whole, but not in a process that resembles
the psychoanalysis of the private subjective
states of mind of the authors in a process
that rather identifies intent as a general,
objective, public fact.
From that point of view, it seems to me that
we're dealing with a document that, when it
speaks in generalities, should be respected
for that choice.
Prof. Goldwin: Professor Berns?
Prof. Berns: Well, for reasons having to do
with Republican principles which are stated
for our purposes in the Declaration of Independence,
it seems to me quite obvious that when it
comes to interpreting the Constitution, we
are bound by the intent of the Framers.
Now, the intent of the Framers is, in that
text, one doesn't attempt to psychoanalyze
the Framers or read their autobiographies,
one has to read the text of the Constitution.
And it seems to me that that text is a lot
clearer than is sometimes suggested by those
who say it's filled with generalities and
we are of necessity-free to roam as we please.
For example, in that particular speech at
Georgetown, that was Justice Brennan, that
you quoted from him, the latter part of that
speech is given over to a discussion of the
death penalty.
He's opposed to the death penalty.
He not only is opposed to the death penalty
but he's firmly persuaded that it's unconstitutional.
Now, he comes to that conclusion not because
he cannot read the Constitution.
He can read the Constitution at least as well
as I can read the Constitution, and when he
reads the Constitution, he sees five particular
references, specific references in the text
of the Constitution indicating that capital
punishment is absolutely constitutional.
There is a reference in the Fifth Article
of the Amendment permitting capital trials.
If they are preceded by a presentment or an
indictment of grand jury, a person life may
be put in jeopardy once but not twice for
the same offense.
A person's life may be deprived with due process
of law but not without due process of law.
The Fourteenth Amendment repeats that particular
provision, and then of course, in Article
II, Section 2, I think, the president is empowered
to issue reprieves.
Five particular specific references in the
text of the Constitution making it absolutely
clear that there's nothing unconstitutional
about the death penalty.
Justice Brennan nevertheless, having talked
about the magnificent generalities of the
text of the Constitution, comes to the conclusion
that the death penalty's unconstitutional.
Question, by what right does he do this?
Prof. Tribe: If I could interject, I'm not,
at this point, going to try to defend the
conclusion that the death penalty is unconstitutional.
I find that problematic, but I find your reading
of the text very difficult.
That is, what all of those provisions, it
seems to me, indicate is that insofar as death
is used, it must be used in accord with various
safeguards.
That presumes that perhaps death will be allowed,
perhaps it won't.
The Cruel and Unusual Punishment Clause makes
that an open question.
For example, when you referred to not twice
being put in jeopardy of life, it actually
doesn't just say life.
It says, "Life or limb."
And I suppose that means that we could hack
off people's arms, but it doesn't say you
can hack people's arms off.
It leaves that question for interpretation
of the Cruel and Unusual Punishment Clause,
and I daresay that all members of any court
I can imagine would now say that lopping off
the arms is a cruel and unusual punishment.
Prof. Berns: Tribe, if you were on the court
and you had a capital punishment case, as
they have every year now, would your conclusion
be that it's unconstitutional?
Prof. Tribe: I think probably not.
I would be delighted by a Constitution that
barred capital punishment, but I'm inclined
to say that it is not yet cruel and unusual.
But it seems to me the fact that I differ
with Justice Brennan on some points and with
Chief Justice Rehnquist on others is not to
the point.
The question is, and I think I agree with
you, we must read the text to discern intent,
but how are we to go about reading the text?
Are we to read it with all of the negative
implications that are conceivable or are we
to read it in a way that is consistent with
the idea of a document capable of growth?
Prof. Berns: Obviously, we would not be here
discussing this issue if it were simple.
And one would have to be a fool to argue that
it is simple, but I would like to put the
question to the two judges on the panel.
To what extent are your difficulties derived
from Fourteenth Amendment cases which provide
the bulk of the Constitutional litigation
now, I will suppose?
Judge Wallace: What clauses do you have in
mind?
Prof. Berns: Well, I mean, due process, equal
protection, those two clauses.
See, the original text of the Constitution,
I think, is not so difficult to interpret.
The difficulty comes with the Fourteenth Amendment
which seemingly is stated in these generalities.
Judge Wallace: Well, there's no question about
the large amount of work that we do that involves
the Fourteenth Amendment.
In flying back to Washington today for this,
I was reading briefs for next week's calendar
and I had two cases that involved it.
And it seems that, left unbridled, lawyers
with their fertile minds can always find a
due process or equal protection argument for
almost any issue that comes up before the
courts.
And to some extent, they have a certain amount
of logic to them.
If I were sitting back and trying to judge
what kind of a government that I would like
to have if I were that benign dictator, I
think very often I could subscribe to that.
But there's a certain amount of judicial humility
that you have to have in recognizing that
that is not your right and that there certain
limitations that you have.
But it almost is treated by some as an open-ended
invitation to bring almost every complaint
before the courts and make it a constitutional
problem.
I remember the first time that I sat on a
case in which it was suggested that there
was a constitutional problem because the principle
directed certain people to have a shorter
haircut.
And there I was deciding this great constitutional
question.
I wondered if that's really what I had in
mind when I became an Article III judge.
Prof. Tribe: Well, it seems to me...
I'm sorry.
Judge Wallace: Go ahead, go ahead.
Prof. Tribe: It seems to me that it's too
easy to make it look like it's all the majestic
generalities of the Fourteenth Amendment.
I think the most lively debate in recent years
on the meaning of original intent has been
conducted within the Supreme Court over the
meaning of the religion clauses right in the
First Amendment.
And in one rather famous case from Alabama,
in which the Alabama Legislature specified
a moment of silence for prayer or meditation,
specifically using the word "prayer," the
court divided over whether the Establishment
Clause of the First Amendment, n that case,
it was being applied to the states through
the Fourteenth Amendment, but the real division
was on the meaning of the Establishment Clause,
whether the establishment clause should be
construed to prevent the government from deliberately
endorsing religion or whether it should be
read much more narrowly simply to prevent
the government from discriminating among religions
or setting up an official state church.
Now, Justice O'Connor, writing in concurrence
with the majority, said that she thought that
the Establishment Clause should be understood
in terms of the general purpose of the Framers
to avoid government endorsement of religion.
Justice Rehnquist, dissenting, took the view
that because the wall of separation was not
directly in the mind of the Framers, he points
out Jefferson was in Paris at the time, that
for that reason, it's wrong to read the establishment
clause broadly.
Now, it seems to me that even without getting
the words like "due process" and "equal protection,"
one has to choose between those two approaches.
The fact, as Justice O'Connor pointed out,
that there were virtually no public schools
when the First Amendment was written, so that
the issue of prayer in the public schools
certainly didn't occur to the Framers, might
lead one, if one has a very narrow view of
original intention, to say that official prayer
in the public schools is just fine.
If instead, one says the Framers knew that
the document would outlast the particular
social conditions that gave it birth, and
one has to look beneath the surface to what
Justice Rehnquist in another case called "the
tacit postulates of the Constitution's provisions,"
then I think one would agree with Justice
O'Connor.
And I think the problem does not occur only
in Fourteenth Amendment jurisprudence.
It occurs throughout the Constitution.
Judge Wallace: I think that's probably right,
Professor Tribe, but it's really how you approach
the problem.
I think it will largely determine the outcome.
For example, in the case from Nebraska where
they had the paid minister giving prayer,
Chief Justice Burger, in his opinion, went
back through history and what was going on
at the time of the writing of the Constitution
and, based upon that history, made an application
today.
That is, he took the position, it seems to
me in that case, that you do look at the Framers'
intent not only by what they did at the time
of the adoption of the Constitution, but what
was going on at that particular time.
And certainly, that case indicates that there
was a more careful looking to what happened
in the past sort of the Framers' intent than
there had been perhaps in other cases.
Judge Mikva: I was going to answer Professor
Berns' question by saying that at least from
what I see both within my circuit and in the
other circuits, that we probably get more
litigation and virtually all of the criminal
litigation, the use of the Fourth Amendment
rather than the Fourteenth.
And there, the words "unreasonable searches
and seizures," when a warrant is necessary,
and what are the particular places to be searched.
And the courts have struggled with these phrases,
and they aren't perhaps quite as majestic
as some of the other.
Prof. Berns: Of necessity, the courts will
struggle with those...
Judge Mikva: And the Congress has struggled,
I think.
Prof. Berns: No one argues about that.
Judge Mikva: No, and I'm saying that there's
an interplay there.
Prof. Goldwin: If I could go back a moment,
when Professor Berns spoke first of most of
the difficulties in interpreting coming from
the Fourteenth Amendment.
And then, Professor Tribe, you said, well,
that wasn't so in, for instance, the First
Amendment.
And you, Judge Mikva, had spoken of the complications
that come from the Fourth Amendment and unreasonable
search and seizure.
But still, aren't they related to the Fourteenth
Amendment and that big change that occurred
in the way that the Constitution is read and
the difficulties in interpreting it now when
the court decided that the Fourteenth Amendment
makes the First Amendment and Fourth Amendment
applicable to the states?
Whereas it's clearly written, and was always
understood to apply only to the Federal Government.
And it's now the complication of having to
interpret the meaning of the Establishment
Clause, for instance, that there shall not
be an establishment of religion.
Now, having to figure out what that means
as applied to the states, whereas previously
it was always understood to apply only to
the Federal Government.
It seems to me that makes it much more difficult
to interpret the Constitution.
Prof. Tribe: I think it increases the volume
of cases in which the issues will arise, but
I really think that it is misleading to suppose
that the problem is seriously accentuated
in a qualitative way by the Fourteenth Amendment.
If I might just go back to, Judge Wallace,
your example of the Nebraska chaplain case,
the case in which the state legislature, using
public funds, hires a chaplain to introduce
the legislative session with a prayer.
Now, in that case, Chief Justice Burger, for
the majority, focuses, as you say, on the
history.
He says, "At the time the First Amendment
was written, prayers of this kind were common.
And therefore, it follows, perhaps not inexorably
but presumptively, that the Constitution doesn't
condemn them."
And I take it, Judge Wallace, that you are
saying that that approach is congenial to
you?
Judge Wallace: No, I was pointing out that
that approach is one that the Supreme Court
has taken.
Prof. Tribe: From time to time.
But if it took that approach very often, look
what would happen.
If it took that approach in the Fourteenth
Amendment, what would follow?
It would follow that because segregated public
schools were a common practice at the time
the Fourteenth Amendment was written and ratified
and were not thought to be unconstitutional,
that it was somehow too radical for the court
in Brown v. Board of Education to have undone
that.
Judge Wallace: You know, it's interesting,
Professor Tribe, that every I've been into
one of these discussions where people adhere
to the living constitution theory, Brown versus
Board of Education is the case that's always
looked to, the example.
Judge Mikva: I didn't cite Brown versus Board...
Judge Wallace: You will.
Judge Mikva: I said Baker versus Carr.
Judge Wallace: You will.
Judge: Mikva: Was I talking about Baker versus
Carr?
Judge Wallace: But when you think about it,
though, for a moment, if you take a step back,
about the living Constitution idea, who's
gonna decide what the current living Constitution
requires?
That is, we aren't gonna use the game plan
that the Founders had.
We're gonna say, "That's two centuries old.
These folks were fine then, but there's a
living Constitution.
We have today's problems.
We're going to now have this Constitution
change."
Who's gonna make that decision?
Well, the decision's gonna be made by nine
people who sit in Washington D.C., the Supreme
Court.
The assumption is, with a living Constitution,
that this is beneficial for us, for the citizens,
is that they'll make the right decision.
That always, when they make this constitutional
live to change, that the right decision will
come out.
Well, how can we guarantee that?
It seems to me that if the Founders took such
careful pains to say the Constitution can
only be amended by the Constitutional Process
of Amendment, that it's difficult for me to
accept that sociological surveys now can amend
the Constitution in its living part.
Judge Mikva: As I listen to you talk, I realize
that you point out exactly how difficult these
choices are because we tend to try to resolve
them by hurling slogans at each other.
And I didn't hear Professor Tribe use the
term "living Constitution."
I don't know whether he likes it or not.
I don't particularly like it because that
does suggest...at least the connotations to
me suggest that that it's no restraint at
all, it just goes from judge to judge.
Judge Wallace: He reminded us that we have
to remember that it's a living legal document.
Judge Mikva: Legal document he said.
Now, legal document is...
Judge Wallace: Is different from a Constitution.
Judge Mikva: No, no.
It's different from the notion that you could
just pick and choose and say, "I like this,
I don't like that.
Therefore I'm gonna go with this and I go
with that.
And here's a new one that nobody thought of,
I'm gonna put that in," which the connotations
come to me from the words "living Constitution."
But the fact of the matter is that all of
these represent very hard choices, and you
suggest that there's a judge machine which
you put in the facts and you put in the Constitutional
provision and out comes the decision.
And you know better than that.
You know that these are struggles.
I happen to agree both with Brown versus Board
and the Chief Justice on the First Amendment
case, the chaplain case, in South Dakota.
And I think the reason, as I struggled through
the prose of that opinion, they were long
opinions as I recall, was that it wasn't only
that that was the history of the meaning of
that clause because there was a chaplain praying
over the Congress that adopted that amendment.
But the fact of the matter is that even today,
you walk into the House of Representatives
or the Senate of the United States and there
is a chaplain praying for the souls of those
members, and those prayers are needed.
And there's a chaplain.
There's a paid Marshal saying, "God, save
the United States in this honorable court,"
every day when we start to sit and when you
start to sit.
Let me just finish, and...
Prof. Berns: It seems to me that you exaggerate...
Judge Mikva: Can I just make the point?
And I'm sure you can find out where I exaggerated.
The point I make is that what has changed
about segregation of schools between 1865
and 1963 or whenever Brown versus Board...
Prof. Tribe: '54.
Judge Mikva: ...'54 was tremendous and was
a topographical change in our culture, in
our institutions.
What changed in voting habits between 1865
and 1960 was tremendous.
There hasn't been that kind of sea change
in the way we treat religion in our political
institutions.
I think both decisions are defensive.
Prof. Goldwin: Let me pose this question just
by quoting one sentence from Justice Brennan.
"Judicial power resides," he says, "In the
power to give meaning to the Constitution."
Now, another way of saying something like
it would be, "Judicial power resides in the
power to ascertain the meaning of the Constitution."
Is there a fundamental difference of approach
in saying, "Give meaning to the Constitution"
or in saying, "Ascertain the meaning of the
Constitution?"
Judge Mikva: Is this from his Georgetown speech?
Prof. Goldwin: I think so, yes.
Judge Mikva: See, another line...
Prof. Berns: Of course there's the fundamental
difference in that.
I mean, the implication of the statement,
of course, is that, "The Constitution means
absolutely nothing until I, William J. Brennan
Jr., say what it means."
Judge Mikva: But the problem, Professor Berns,
is that if you read the whole speech, that
clearly is not the context in which that line
was used.
He very clearly he said, "I realize that we
are not final because we are infallible."
Prof. Berns: That's Jackson.
Judge Mikva: Well, he quoted Jackson, and
he quoted it in a long paragraph in which
he made it clear that he was aware that these
are awesome decisions and that this is an
anti-democratic or non-democratic institution
that's making these decisions.
Prof. Tribe: It seems to me that there is
a difference between ascertaining meaning
and pouring meaning in as though it were an
empty vessel.
I couldn't defend the latter, but I honestly
don't believe that Justice Brennan or anyone
on the court thinks he's engaged in the latter
or genuinely is.
Prof. Goldwin: All right, well, let me give
you one other sentence from Justice Brennan
which is a little different.
"The ultimate question must be what do the
words of the text mean in our time?"
Now, that means you have to look at the words,
right?
But do you see a significant difference in
that formulation?
Prof. Berns: Yeah, well let me say something
that I wanted to say a moment ago, and it's
relevant here, too.
I wanted to say to Judge Mikva that I think
he exaggerates the extent to which the Constitution
was out of date.
And Justice Brennan uses a phrase, "For a
time that's dead and gone," I think, in that
particular speech.
Abner, in your initial presentation, you made
some reference to the extent to which voting
has changed and the Constitution had to be
changed and so forth and so on.
If I'm right in this, I think not a word in
the Constitution had to be changed to allow
women to vote, to allow blacks to vote, to
allow women to hold office, to allow women
to serve on your court, to allow women to
serve on the Supreme Court of the United States
or as Vice President or President of the United
States.
Not a word had to be changed.
Judge Mikva: Well, that gets back to what
you call constitutional and unconstitutional.
Section 4 of Article I specifically says that
times, places, and manners of holding elections
for senators and representatives shall be
prescribed in each state by the legislature
thereof.
And the legislature thereof in all of those
states had rules against non-property owners,
women, age, and the Constitution changed all
of that by saying, "No one shall be denied
the right to vote."
So, technically, you are correct.
We didn't change the words of Section 4, Article
I.
Prof. Berns: The point is important, though,
Ab, because...
Judge Mikva: But when we passed the Fourteenth
Amendment, we didn't change the words of the
article which says that slaves would be sent
back to the state from whence they came.
Prof. Berns: It didn't used the word "slaves,"
again.
I can get off on that one.
I'm simply making the point that the Constitution
was not written as an 18th-century document
to survive for a few decades into the 19th.
Judge Mikva: On that we are in total agreement.
I couldn't agree more.
Prof. Berns: And it had to be changed very
little to make it possible for us to live
very happily and uniquely among all of the
countries of the world in the 20th century.
Judge Mikva: It is a tribute that we can agree
upon that, during these 200 years, we have
only 26 times had to go back and amend the
Constitution.
10 of them were at the original founding of
the Constitution.
Prof. Berns: And very few of those...
Prof Goldwin: And two of them canceled each
other.
Judge Mikva: And two of them canceled each
other.
Prof. Goldwin: But I have to interrupt at
this moment of strange, unique agreement between
Professor Berns and Judge Mikva.
We've at least begun the exploration of this
question, how to interpret the Constitution,
and I think it's time for us to move on now
to the question-and-answer session because
we have a knowledgeable audience eager to
ask questions.
May I have the first question, please?
Yes, sir?
Fred: I'm Fred Quinn.
I'm the International Coordinator for the
Bicentennial of the Constitution with the
U.S. Information Agency, and I'd like to ask
our panelists what advice you have for constitution
writers in Africa, in Europe, in Latin America,
and in Asia who are struggling with the questions
of writing or revising constitutions?
Judge Mikva: I have no reason to go first
except that I just made a speech on this to
the proposed constitution writers in Brazil.
I hope...and this is a hope that I'm not very
confident will be fulfilled.
I hope that they take the non-specificity
of our Constitution as their model.
I worry deeply that they are putting in everything
including the kitchen sink in trying to guarantee
all kinds of economic rights, the right to
a job, and the right to a home, and the right
to food.
And while I'm all for those rights, they can't
be guaranteed in many of those countries,
and the Constitution is gonna become a dead
letter before the ink is even dry in the document.
And I would wish they would incorporate some
of those majestic generalities that we are
arguing about because they will have a document
that will survive.
Prof. Tribe: Sometimes easier said than done,
though.
When I helped the Marshall Islands write a
constitution, I started exactly with Judge
Mikva's preference.
I wanted majestic generality.
But they pointed out that they lived in far-flung
islands, didn't trust each other to legislate
off, and wanted to pin it all down.
So they ended up with an 85-page document
which guaranteed, among other things, protection
against newsroom searches.
Very detailed.
I think we have to recognize when we help
other countries write constitutions that we
cannot necessarily export our capacity to
be brief.
Judge Mikva: I think...
Prof. Berns: To that, I would...
Judge Mikva: Excuse me.
Go ahead, Walter.
Prof. Berns: I would add one other thing,
Mr. Quinn.
I was in Brazil last year, too, talking about
the Constitution, and ran into the same thing
that Judge Mikva was talking about, and often
the same sort of advice.
I would add one other thing, however, I think
it's important for these countries to realize
that they cannot, in fact, are not likely,
at least to achieve constitutional governance
by relying on judicial review alone.
That's an important thing.
And I find the disposition among jurists from
around the world to look to the Constitution
of the United States and its happy, bicentennial
existence and attribute that to the fact that
rights have been secured by the Supreme Court,
when in fact, of course, the first time the
Supreme Court enforced a First Amendment right
against the Congress of the United States
was in 1965, and the first time it enforced
a religious provision against the Congress
of the United States was in 1971.
We tend to forget that sort of thing.
As Madison said in "Federalist 51", we have
civil and religious rights in this country
not for reasons with respect to the Federal
Government.
He states a different proposition altogether.
But with respect to the Federal Government,
it has to do with the structure of that Constitution.
We could not simply rely on judges.
That, I think, is an important piece of advice
to give to people around the world.
Judge Wallace: Mr. Quinn, I'd only add that
in my experience in dealing with 13 countries
in Asia, where I'm working with judiciaries
there on behalf of The Asia Foundation, my
experience has been that they have to learn
more than just the words.
Our document tells how we, as a people, are
constituted, and it survived because of something
more than a document and the words.
Other countries have tried copying identically
what we've said and have failed.
And if I have any message for those that are
struggling with the Constitution, it's to
look at the basic freedoms and the basic thrust
of what you're trying to accomplish for a
people.
That, perhaps, is more important than the
words that are spelled out.
Prof. Berns: May I add one other thing, Mr.
Quinn?
And this I think has to be said in Brazil,
too.
We get smug about the brevity of the Federal
Constitution and its glittering generalities
and so forth.
We must always remember that when that Constitution
was written, there were 13 states that had
written constitutions that went into great
detail with respect to a whole body of material
that...well, under a Federal system, that
was possible.
And that is one reason why our Constitution
was so brief.
Prof. Goldwin: As I understand these answers,
we should advise other countries to have a
Federal Constitution and a short one, and
then they'll have all of the troubles interpreting
their constitution that we have.
Judge Mikva: We've been doing that.
Prof. Goldwin: Can we have the second question,
please?
Alfred: My name is Alfred Mullen.
I'm an Attorney with the Department of Justice...
Prof. Goldwin: Can you stand, please, for
us?
Alfred: Oh, sorry.
I'm an Attorney with the Department of Justice
and I've had to endure Judge Mikva's questions
many times.
And, you know, the chance to return the favor,
I think, may never recur again, so I thought
I would jump in.
Judge Mikva, you and Professor Tribe have
responded to these questions largely by referring
to generalities in the Constitution and referring
to those terms, to the fact that they do need
interpretation and construction.
But that doesn't seem to me a full answer
because the generalities themselves do have
limits.
They're fixed subject areas in which, you
know, the Constitution intends to have the
court work.
And let me pose as the counter, say, to Brown
versus Board of Education another example,
the abortion decisions.
As far as I can see, there's not even a magnificent
generality within which the Court can pin
its decision.
The Court talks about penumbras, about shadows,
about privacy rights, although the word never
does occur in the Constitution, and I wonder
if that doesn't show a contempt, for the majority
of the Court, at any rate, for any limitation
whatsoever?
Judge Mikva: Well, if the question's directed
to me, let me say that there are several phrases,
to be specific, in the Constitution which
talk about inferior courts.
And I am a judge on one of those inferior
courts, and whatever freedom all of you have
to criticize the decision of the Supreme Court
of the United States specifically, as an inferior
judge on a subordinate court, when the Supreme
Court hands down the decision that covers
the subject matter, it is the law of the land
as far as I'm concerned, and I accept it and
try to apply it in future cases.
There are generalities involved, though, in
the general abortion area.
We are talking about this question of due
process of the law.
It's under the general doctrine of due process.
I assume that part of your concern is the
fact that the court particularly inscribed
a right to privacy.
And that is perfectly correct, but the Constitution
does not mention the right to privacy.
Well, if I were one of the bosses instead
of one of the inferiors, maybe I would use
a different parsing out of that situation
than was done in Roe versus Wade.
And maybe I would have waited because I believe
a lot in the topography in which a Supreme
Court decision comes down.
And Justice Brennan talked about that when
he talked about the legitimacy of the decision.
Maybe it would've been better to have waited
for the Court to have stayed its hand, but,
again, that's a debate that the academicians
here can argue about.
Judge Wallace and I remember our position.
Prof. Goldwin: Is that your primary concern,
that the timing was wrong?
Judge Mikva: Well, no.
Primary concern?
Again, I don't wanna parse out whatever disagreements
I may have about the way that decision came
down, but I think that a lot can be said about
the legitimacy of a case in terms of its time.
Prof. Berns: I don't think there was any quarrel
about the timing.
I think Professor Goldwin, when he asked that
question, had in mind whether there might
not be an additional reason, and perhaps even
a more important reason why, in our judgment,
the Court was wrong to do what it did or to
decide at all Roe v. Wade.
When the court does that sort of thing in
the first place, and let me start with my
conclusion, it gets into politics, but it
creates a right.
In this particular case, a right for privacy
which it then defines.
To speak of a right is to describe an area
exempt from political power.
That's what a right means.
The political processes may not govern.
They may not enter.
This is an area that is exempt from the politics.
Now, before one does that sort of thing, especially
before one talks about a fundamental right,
one ought to be doggone certain that there's
some agreement that it is a fundamental right.
We, at the beginning of this country, instituted
a government under the prescriptions of the
Declaration of Independence in order to secure
certain rights.
We agreed about those rights.
But if the Declaration of Independence had
said, for example, "We hold these truths to
be self-evident, that all men are created
equal, that they are endowed by their Creator
with certain unalienable Rights, that among
these are Life, Liberty, and Sodomy," for
example, I don't think we could've had a United
States of America.
Because I don't think we could've constituted
a government on the basis of those rights,
whether the Supreme Court of the United States
describe them as a fundamental right or not.
Now, that's the problem of this.
Now, Mr. Tribe was counsel in that particular
case, so he's gonna have something to say
about it, I'm sure.
Prof. Tribe: Yes, I think you're right.
It seems to me...
Prof. Berns: Don't feel that you have to.
Prof. Tribe: No, I wanted to anyway, but now
you've given me all the more incentive.
It seems to me that it misstates the question
to ask whether the catalog of fundamental
rights includes sodomy, abortion, and the
like.
I think the relevant right is the right to
live under a system of limited government
in which, when government intrudes into the
most personal spheres of life, a court will
demand of the government a more particularized
justification than some states have sometimes
given.
Now, that's a principle which I think is ingrained
tacitly in the entire Constitution, and certainly
in the Bill of Rights and in the Ninth Amendment.
Without that principle, the court's decisions
protecting people's rights to decide whether
to have children, how to bring them up, decisions
in the 1920s about the right to send your
children to a private school, all of those
decisions would be wiped away.
It seems to me that what is excruciatingly
difficult about the abortion case is not that
the word "liberty," which after all is in
the Fourteenth Amendment, is not capacious
enough to encompass a woman's control over
her own reproductive capacity.
What makes the case excruciatingly and tragically
difficult is the compelling character of the
countervailing interest in protecting the
life of the fetus.
Judge Wallace: Doesn't it make a strange situation,
though, when Justice Douglas talked about
this penumbra of rights and you could see
the shadow coming out, not knowing where it
is, where it ends.
Prof. Tribe: The shadow knows.
Judge Wallace: The shadow knows and Cato.
You're showing your age, by the way.
But it seems to me that whether it's right...or
I agree with Ab.
As an inferior court judge, you take what
comes down from the Supreme Court.
But I think it can at least be observed that
the court, when it uses the penumbra approach
of finding all of these rights which aren't
spelled in but somehow just sort of emanate,
that that theory creates an ambiguity.
And then, after they've created the ambiguity,
then they define the ambiguity, and then develop
rights out of the ambiguity.
Now, whether it's right or wrong, I just suggest
to you that that isn't really the same thing
as finding a right to spell it out in the
Constitution.
Prof. Goldwin: Gentlemen, I think we have
to go onto the next question.
Prof. Berns: We're not finished with this
one by any means.
Judge Mikva: We'll get back to it.
Jim: Jim Unger, the Director of the National
Forensics Institute here in Washington D.C.
At some risk, I'd like to return to what I
think for this panel was the original document,
and that was the title of the panel, "How
to interpret the Constitution."
My suspicion is the original Framers of that
had special emphasis on the word "how," and
I was wondering if each member of the panel
possibly succinctly could tell us what they
saw as the legitimate resources, the legitimate
areas one could turn to in interpreting the
Constitution.
Obviously, we have the text, but are there
other sources as well that each member of
the panel thinks are legitimate sources of
constitutional interpretation?
In answering the question how to interpret
the Constitution, what would those sources
be?
Prof. Goldwin: Professor Berns?
Prof. Berns: Reference has been made to Baker
v. Carr a couple of times.
I'll refer to one of its progeny, Gray v.
Sanders and then Reynolds v. Sims where the
statement was repeated.
These cases have to do with legislative reapportionment,
and Reynolds and Sims specifically has to
do with the question of whether the rule of
one man, one equally weighted vote applies
to the second house of state legislatures.
That's the question.
How does one interpret the Constitution of
the United States to answer that particular
question, a question coming to the court in
1965, give or take a couple of years.
Well, Justice Douglas in Gray v. Sanders saw
fit to refer to the course of American political
thought in a sense extending from the Declaration
of Independence through Lincoln's "Gettysburg
Address," and came to a certain conclusion
which I think that history does not sustain.
Had he, for example, looked at the records,
for example, the Federalist papers about representation,
the records of the Federal Convention on the
question of representation, and the necessity
to impose some republican limits on the diseases
of republican government.
Had he, for example, looked at Thomas Jefferson,
after all, the principal author of the Declaration
of Independence.
Had he, looked at Jefferson's notes on the
State of Virginia with respect to this question
of representation, he would've found in Query
No. 13, "The purpose of establishing different
houses of legislation is to introduce the
influence of different interests or different
principles."
And I can go on.
I would conclude that if one looks to the
text, one looks to those documents that amplify
the text, that indicate what the text might
have meant to the men who wrote it, such as
Jefferson's writings, The Federalist Papers,
and so forth, one can see that the court was
simply wrong in Reynolds v. Sims.
Simply wrong.
Judge Wallace: Well, let me respond, as one
of those that's been struggling for the last
16 years, to talk about how we go about deciding
these constitutional questions.
In my judgment, every person should start
with the text itself.
I don't think that any judge could or would
justifiably start without going to the text
itself.
The text itself does not cover every possible
answer.
There are some great overarching principles
that are discussed within the Constitution.
And so then, a person has to look at the text
and, to my judgment, those norms which are
clearly expressed from the Constitution.
Now, I wouldn't go so far as, in my judgment,
in the penumbra area.
But then and again, there are some things
that you can gain from the Constitution.
For example, the structure of the Constitution
sets up very clearly a way of protection.
One is Federalism.
It divided the power between the states on
one side and the Federal Government as a separation
of power.
There was a second separation of powers within
the Federal Government between the three branches.
It seems to me that those structures tell
you a lot about how you're going to approach
a given interpretation of the Constitution.
Those structures identify where the role of
the Court is and where the role of the Congress
as the elected representatives of the people
will be.
Now, after you leave those, a lot of people
believe, and I happen to be one of them, that
you should look to the Framers' intent.
Then, that can be secured through the debates
and through the debates on adoption, and I
don't think those are dead at all because
they happen to be 200 years old.
These are the people who looked at these basic
principles and said, "These principles will
govern."
And they didn't say these principles will
govern with a sunset clause of 20 years.
They said, "These principles will govern."
They had in mind that those principles as
interpreted would last through the history
of the Republic, and my judgment is that that's
fair.
Now, when you get through with that, you don't
just plug in and automatically an answer comes
out.
Of course, there's discretion that we apply.
Of course, there is.
But there's a difference, I suggest to you,
if you start with these basic norms of the
Constitution to make that decision than if
you decide what's good for society today by
your light of what you think society should
be doing.
That's my answer to your question.
Prof. Tribe: I certainly agree with that,
but look at the sentence.
I think it's crucial.
The Framers decided these principles shall
govern.
It was principles, it was not laundry lists
of examples.
And then we debate what the underlying principles
are.
Do they include a general principle of limited
government?
And I believe they do.
Do they include the general principles of
checks and balances?
And I believe they do.
It seems to me that those principles are alive
and well, but they're alive and well because
we understand them at a level of generality
that is as relevant today as it was earlier
precisely because we do not reduce them to
a rather trivial set of frozen illustrations
in history.
Prof. Berns: Do those principles...or does
the principle of the separation of powers
embodied in the Constitution include the principle
that the two houses can be based on a separate,
different principle of representation?
Prof. Tribe: Certainly that the two houses
of Congress can, but that was because of the
great compromise that created the Senate.
It's not at all clear that a similar principle
is applicable to state legislatures and local.
That's where the debate is on Reynolds.
Prof. Berns: I will drop this subject by merely
saying I see nothing in the Constitution of
the United States that prohibits the states
from following that particular sage advice
of the Founders with respect to the Federal
principle.
Prof. Goldwin: Do we have another question?
Yes, please.
Louis: Louis Fisher, Library of Congress.
On the question of how to interpret the Constitution,
you spent, I think, all of your time on how
judges go about that task.
You've talked, Professor Tribe, about method
and technique difficulties.
Judge Wallace talked about the anxiety of
having nine justices do this.
But certainly it's true that Congress and
the President have important roles, and I'm
talking not just in the initial interpretation
which the Supreme Court would recognize.
But are we talking about a much more dynamic
process of a dialog among all three branches
and the duty to interpret the Constitution
is not just placed on the Supreme Court or
on the Judiciary?
Do we have a much more vigorous dialog among
all three branches and also with the states?
Prof. Berns: I would respond to that as quickly
as possible, Mr. Fisher.
One of the things that disturbs me about what
has happened in recent years, the increasing
importance of the Court and the Court entering
areas where, in my judgment, it ought not
to enter and so forth.
One of the consequences of that, it seems
to me, has been a tendency on the part of
officials of other branches of the Government
to think that interpreting the Constitution
is none of their business.
The most egregious example of this was the
second go-around of the so-called Equal Rights
Amendment when 65 senators sponsored the rebirth,
the resurrection of that amendment.
And its chief sponsor was then-Senator Paul
Tsongas from the State of Massachusetts who
made the mistake of testifying before the
Senate Judiciary Committee on that and was
asked time and time again, "What does this
mean?" and answered time and time again he
didn't know, it was up to the courts to say.
Now, this is someone who's proposing to amend
the Constitution of the United States.
This is the chief sponsor of a proposed constitutional
amendment who thinks it's his job not to know
what the language means.
Now, that's constitutional irresponsibility.
Prof. Tribe: Well, I've seen plenty of examples
of constitutional irresponsibility.
I wouldn't have used that one because Senator
Tsongas of Massachusetts I think was trying
to say that, as with the Equal Protection
Clause, when one recognizes a very broad principle,
one is not going to know in advance and detail
what all of its applications will be.
But I do agree with the general thrust of
Professor Berns' point and that is, as Professor
Fisher's question suggests, we ought not to
treat constitutional interpretation as simply
a puzzle about judicial review.
The Constitution addresses all three branches
of the Government, and we need a constitutional
theory adequate to all three.
Prof. Berns: The fact of the matter is, you
know Mr. Fisher, the quickest way to empty
out either chamber of the Congress is to get
up and say, "I'd like to discuss the constitutionality
of this bill."
And immediately everyone says, "Well, that's
for the courts," and goes back to their office.
I find that very distressing as someone who
believes in the primacy of the First Branch.
It dismayed me mildly then and still dismays
me that my former colleagues just don't think
it's part of their responsibility to worry
about the constitutionality of an issue.
Maybe a part of it is that there are less
lawyers that get elected each year to the
Congress than before.
And for some reason, with the present company
excepted, a lot of non-lawyers think it's
not their responsibility to worry about the
Constitution.
Well, I happen to think it is.
Prof. Goldwin: Well, it's my responsibility
to announce to us that this concludes another
Public Policy Forum presented by the American
Enterprise Institute for Public Policy Research.
On behalf of AEI, our thanks to our distinguished
panelists, Professor Laurence Tribe, Judge
Abner Mikva, Judge Clifford Wallace, and Professor
Walter Berns.
Announcer: It is the aim of AEI to clarify issues
of the day by presenting many viewpoints in
the hope that by doing so, those who wish
to learn about the decision-making process
will benefit from such a free exchange of
informed and enlightened opinion.
This Public Policy Forum series is created
and supplied to this station as a public service
by the American Enterprise Institute, Washington
D.C. AEI is a non-profit, non-partisan, publicly
supported research and education organization.
