For years we have been subjected to claims that the Supreme Court should always discern the “original intent” of the framers. The absurdity of the idea has been pointed out many times but to little effect, largely because no intellectually defensible alternative principles for constitutional jurisprudence have been advanced.
Making Our Democracy Work: A Judge’s View by Justice Stephen Breyer provides a case in point. The book is an effective nuts-and-bolts discussion of the process through which the Supreme Court has reached its decisions. It is an excellent piece for educating the public on the court’s role in American government. However, although in various ways he acknowledges the role of “underlying values,” he provides no elucidation of what those values might be. He provides no alternative to the intentions of the Framers.
Intentions are important. Unfortunately, the Constitution simply is not a meaningful guide to some undeviating quantity known as “the Founders’ intentions.” The problem is that two conflicting intentions stand at the core of the Constitution. On the one hand, human equality was the intellectual bedrock of the available political philosophy; on the other hand, most of the framers feared the masses and were determined to retain political power in the hands of “the better sort.”
The egalitarian side of the equation is easy to miss on a casual reading. The Constitution makes no reference to human equality. It accepts slavery, the right of one man to reduce another to the status of a horse or a carriage. It also does nothing to mitigate the traditional subjugation of women to men.
Nevertheless, the Constitution is stringently egalitarian when it comes to the human core of the new government: the only stated requirements for representatives, senators, and presidents are age, citizenship, and residency, with the additional stipulation that the president must be “a natural born citizen.” This added requirement for the presidency stands out because it is the only one based on birth. No hereditary political hierarchy of the kind universal in Europe was created. Further, no conditions of social or economic standing—such as education or property ownership—were imposed. Any (white male) citizen of the United States was eligible for the highest offices in the land.
These requirements for elective government office were the American political revolution. They were the principle that “all men are created equal” put into action.
The gentlemen at Philadelphia dared go where no men had gone before, but they kept their fingers crossed. Fears of too much democracy were deeply felt and frequently voiced at the Constitutional Convention. Those fears shaped the Constitution in a number of ways: the creation of a bicameral legislature with an “upper” house modeled on England’s House of Lords; the provisions for the election of Senators by state legislatures rather than direct election by the people; the oddity of the Electoral College for the selection of Presidents and Vice Presidents.
Contradictions are, of course, the very stuff of life. In the words of Walt Whitman,
Do I contradict myself? Very well then, I contradict myself. (I am large, I contain multitudes.)
Nevertheless, there are difficulties inherent in relying on a contradictory source—the “original intentions” of the Framers—as an anchor for Constitutional jurisprudence.
Also, it is fair to note that the Framers’ intentions included an intention that their intentions should not bind future generations: they included within their scheme a provision for amending the document, a detail that suggests they were loathe to claim eternal perfection.
If we query the amendments added to the Constitution, it appears that subsequent history has put its thumb on the scale in favor of the egalitarian faith: of the 17 amendments added after the Bill of Rights, 5 can be classed as “housekeeping,” 2 involve the aberration of Prohibition, and 10 correct the most grievous anti-egalitarian features of the Constitution of 1787: they abolish slavery, guarantee the vote to former slaves and women, provide for the direct election of senators, lower the voting age to 18, and so on.
This egalitarian trend of Constitutional amendments suggests that a better source of “underlying values” than “original intent” would be the Declaration of Independence. It brilliantly condenses the key assumptions of the political philosophy dominant in political discourse during the Revolution. Those assumptions are the “self-evident truths:”
- that all men are created equal,
- that they are endowed by their Creator with certain unalienable rights,
- that among these are life, liberty and the pursuit of happiness.
- That to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed.
- That whenever any form of government becomes destructive to these ends, it is the right of the people to alter or to abolish it, and to institute new government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their safety and happiness.
Here is a set of ideas that can freshen up our national discourse! If questions were asked and answered in relation to the Declaration rather than the Constitution, vital questions could be explored. What, for example, does it mean for our government to “secure” my right to life? If we’re all equal, why should a United States Senator have guaranteed access to better medical care—greater security of life—than I do? Might Congressional medical benefits be unconstitutional?
If we are born with equal political power, is a campaign finance system that enables the wealthy to buy political power for themselves unconstitutional? If a government must derive its powers from the governed in order to be just, does not a system that blurs the distinction between a bribe and a campaign contribution obstruct justice for all? Where in the philosophy of the Declaration do we find that corporations were endowed by their creators with the rights of human beings?
These are questions that the Constitution itself cannot deal with, but we must somehow deal with them. Empathy and other personal characteristics of Supreme Court justices cannot see us through. The restoration of the philosophy of the Declaration to prominence in public discourse and judicial thought would do much to get America back “on the right track.”