Interpreting the U.S. Constitution #2
The focus: Originalism and textualism versus pragmatism and living Constitutionalism
Substack told me the original post was too long to distribute, so I carved it up into two parts. And we’ll pick up exactly where we left off, with the post-Civil War era.
Justice Holmes’ statutory take and its modern variants
Oliver Wendell Holmes Jr. was a civil war veteran and a Harvard Law professor when he was appointed to the Massachusetts Supreme Court in 1882 at age 40; twenty years later, he was appointed to the U.S. Supreme Court, where he served for 30 years. Before becoming a judge, Holmes was already famous for his 1881 work The Common Law. In 1899, he wrote an essay for the Harvard Law Review entitled “The Theory of Legal Interpretation”. Although this essay was not specifically directed at constitutional interpretation but rather all interpretive questions, Holmes wrote this about a general theory of legal interpretation and construction:
It is not true in practice (and I know of no reason why theory should disagree with the facts) [that] a given word or even a given collection of words has one meaning and no other. A word generally has several meanings, even in the dictionary. You have to consider the sentence in which it stands to decide which of those meanings it bears in the particular case, and very likely [you] will see that it there has a shade of significance more refined than any given in the word book. . . .
[W]e do not inquire what the legislature meant; we ask only what the statute means. In this country, at least, for constitutional reasons, if for no other, if the same legislature that passed it should declare at a later date a statute to have a meaning which in the opinion of the court the words did not bear, I suppose that the declaratory act would have no effect upon intervening transactions unless in a place and case where retrospective legislation was allowed.
Textualism and Originalism
Much later, the theories of statutory interpretation expressed in these excerpts from Justice Holmes gave rise two slightly different methods of Constitutional interpretation. One method became known as “textualism”, and it focused on the plain meaning of the words used, if it could be determined. The problem with this view is that, as Holmes also noted, words and phrases rarely have one meaning and no other, and that meaning changes over time, both as a matter of language evolution and as a matter of intent by proponents for alternate views (as we saw in the inability of future SCOTUS justice Ketanji Brown Jackson to define a woman during her Senate hearings).
As a result, these principles also gave rise to the “original public meaning” theory of originalism, acknowledging (as Justice Holmes did) that there is not just one objective meaning to the text of the Constitution but also agreeing that there was an objectively identifiable public meaning given to the text at the time it was adopted, and the task of judges applying this theory is to determine that original public meaning and apply it. This is subtly different from the “original intent” test that had been advocated by some judges (including the aforementioned Robert Bork), because the actual intent of the legislative body was both harder to determine and mattered less than the language that was used and how that language was interpreted by the public at the time the provision was ratified. [After all, a public movement to repeal or override a statute only arises from the meaning that the public believes the statute has.} As Justice Holmes said, “[W]e do not inquire what the legislature meant; we ask only what the statute means.”
The basic logic underlying the “original public meaning” school of originalism is that it is consistent with the democratic principles underlying the Constitution, including that a law has a fixed meaning until it is formally amended or repealed. Of course, just as it can be difficult to determine what a passage of text means, it can also be very difficult to determine what the original public meaning of a provision was, and there are some cases, such as the Second Amendment, where the legislative body may deliberately have chosen ambiguity by its choice of wording (simultaneously implying both that the right to bear arms is an individual right and a collective right). The current consensus belief about the Second Amendment is that both an individual and a collective right, not just one or the other, are encompassed in that amendment, but, because of the ambiguity inherent in the wording, this is still a subject of debate.
Another problem with “original public meaning”, though, is that the legislature at the time may have applied discriminatory variations in meaning to some terms. One example: it may have been the original intent of the Founders that voting was a privilege granted by the state legislatures (and such privilege could be withdrawn at the legislature’s pleasure) instead of a fundamental right held by every similarly-situated citizen, regardless of race or sex. Another example: the Supreme Court of the 1890s clearly held that “separate but equal” was permissible; state legislatures could make laws that divided citizens’ access to facilities by methods not provided in or supported under the Constitution. Both of these provisions are untenable under the text of the 14th Amendment, which applied all federal rights against the states as well, even if the “original public meaning” of these provisions would have supported their survival. Therefore, an approach of purely one or the other between textualism and “original public meaning” originalism is problematic, because both need to be utilized to comply with the Constitution’s mandates.
The “living Constitution” take and its modern variants
Interestingly, though, Justice Holmes did not necessarily apply his theories of statutory interpretation to the Constitution during his work on the Supreme Court. Justice Holmes believed that judges, whether consciously or unconsciously, interpreted the laws consistently with their own values, which reflected the current society of which they were a part. Accordingly, Justice Holmes rejected the then-prevailing theory of “legal formalism”, which basically held that the law reflected a formal logic to which there was only one correct answer, arguing instead for “legal realism”, meaning that judges generally started with the result they wanted and then backfilled the logic that would lead to that result.
In fact, Holmes’ best expressions of his opinion about the nature of the Constitution are often found in his Supreme Court opinions. For example, in one 1914 case (Gompers v. U.S.), Justice Holmes noted:
But the provisions of the Constitution are not mathematical formulas having their essence in their form; they are organic, living institutions transplanted from English soil. Their significance is vital, not formal; it is to be gathered not simply by taking the words and a dictionary, but by considering their origin and the line of their growth.
Justice Holmes did not invent this doctrine; rhetoric about a “living Constitution” was common during Justice Holmes’ time on the court. Yet Justice Holmes could also be found arguing against too broad of a re-interpretation of Constitutional language. For example, in Weems v. United States (1910), Holmes joined the dissent in a 4-2 opinion holding that the Eighth Amendment’s prohibition against “cruel and unusual punishment” required punishments that were, in the words of the dissent, “sufficiently impelled by motives of reformation of the criminal”.
But the biggest deviation from Justice Holmes’ rules of statutory construction came into being after Holmes’ retirement in 1932 at two months short of age 91, making him still the oldest justice ever (as of 2022). Shortly before he stepped down, the Great Depression settled in, with an unprecedented set of demands being placed upon a reeling America. The entire global economy went into meltdown, with catastrophic impacts on much of Europe and North America. Were the rules prescribed in the Constitution still useful in dealing with the crisis? Much of America believed that the answer was “no”, including incoming President Franklin Roosevelt.
The influence of the Great Depression and Wickard v. Filburn
In response, the Supreme Court fully adopted the idea of a “living Constitution” and junked many of the legal doctrines that had been part of American life, while vastly expanding the power of the federal government, especially administrative agencies, which were permitted both to legislate (using regulations passed under delegations from Congress) and to adjudicate their own disputes. The video at this link illustrates the growth of federal regulations from 1950 (13 volumes in the Code of Federal Regulations) to 1970 (73 volumes) to 1990 (over 170 volumes) to 2013 (235 volumes), and the growth continues.
The case that best illustrates the growth in federal regulatory authority is a 1942 SCOTUS case known as Wickard v. Filburn, which goes back to the Commerce Clause authority discussed earlier in Gibbons v. Ogden. Wickard was an Ohio farmer who grew wheat to feed to the cattle on his own farm. Under the Agricultural Adjustment Act of 1938, the Secretary of Agriculture was permitted to impose a financial penalty for exceeding a “marketing quota” on farmers who grew too much wheat, which was designed to prevent wheat overproduction and boost the market price of wheat. The penalty “d[id] not depend upon whether any part of the wheat, either within or without the quota, is sold or intended to be sold.” And such a penalty was imposed on Wickard, based on a report of federal agriculture agents that he had grown more wheat than permitted, even though he had used all of his wheat to feed to his own animals.
Wickard’s defense was that the Constitution permitted Congress to have oversight only over commerce “among the several states”, or “interstate” commerce, and his wheat never entered interstate commerce. The Agricultural Adjustment Act regulated the “production and consumption of wheat”, but the Commerce Clause did not give the federal government any control over production or consumption, only commerce. In 1914, the Supreme Court had held that the federal power under the Commerce Clause extended to
matters having such a close and substantial relation to interstate traffic that the control is essential or appropriate to the security of that traffic, to the efficiency of the interstate service, and to the maintenance of conditions under which interstate commerce may be conducted upon fair terms and without molestation or hindrance.
Accordingly, a three-judge panel of the federal district court held that the Agricultural Adjustment Act of 1938 was unconstitutional because it applied to situations that were purely production and had nothing to do with commerce, such as the one here. However, by the time the case was heard by SCOTUS, President Roosevelt had appointed eight of the nine justices. And SCOTUS reversed, ruling in favor of the government and claiming that an “Act of Congress is not to be refused application by the courts as arbitrary and capricious and forbidden by the Due Process Clause merely because it is deemed in a particular case to work an inequitable result.” Beyond that, the Court denied that the wheat raised for home consumption was not involved in interstate commerce, even if just peripherally:
But if we assume that [the wheat] is never marketed, it supplies a need of the man who grew it which would otherwise be reflected by purchases in the open market. Home-grown wheat in this sense competes with wheat in commerce. The stimulation of commerce is a use of the regulatory function quite as definitely as prohibitions or restrictions thereon.
This opinion was authored by Justice Robert Jackson, a longtime Roosevelt ally who was a politician first and foremost — and (similar to Justice Marshall) had spent over a month serving as both an associate justice and U.S. Attorney General (July 11-August 25, 1941). Unlike Marshall, he had no hesitancy in ruling in favor of his political positions.
William Brennan’s lengthy defense of “pragmatism”
The idea that the clauses of the Constitution were this malleable was at the center of the “living Constitution” movement, which dominated American law until the end of the 20th century. At first, in cases such as Wickard v. Fillburn, it was applied in order to increase the power of the federal government far beyond that contemplated by the Founders, in a matter that was more along the lines of a raw power grab. However, it soon became clear to some left-leaning lawyers that the doctrine could be used to refashion American society by advancing causes that did not have popular support.
The primary exponent of this position was Justice William J. Brennan Jr., a Democrat and Catholic who had been appointed to the Supreme Court by President Dwight Eisenhower. Justice Brennan became particularly close to Chief Justice Earl Warren, a Republican who had been governor of California, and the two of them led a solid majority on the Court that survived until the late 1980s, despite Chief Justice Warren’s retirement in 1968. [Full disclosure: Chief Justice Warren’s daughter and grandchildren were family friends, and one of my daughters is named after one of his granddaughters. As you’ll read, that has no influence on my commentary below.]
Justice Brennan was famous (or, to his enemies, infamous) for telling his law clerks on their first day of service that there was one word which represented far and away the most important concept on the Supreme Court. What was it? Justice, fairness, dignity? No: “five” (the number of votes required for a Court majority).
In a 1985 speech to a symposium at Georgetown University, Justice Brennan laid out his theory of the law in detail, while also attempting to rebut the originalist-textualist arguments then beginning to be made against his free-ranging interpretations. Because of the centrality of Justice Brennan’s interpretations to the entire debate, the remainder of this piece will be devoted to that presentation of his principles, along with my comments about and disagreements with that presentation.
Justice Brennan begins by attacking originalism and textualism, largely through the use of a straw man (the “most doctrinaire incarnation”) and pejorative language (“arrogance cloaked as humility”, “facile historicism”):
Because judicial power resides in the authority to give meaning to the Constitution, the debate is really a debate about how to read the text, about constraints on what is legitimate interpretation.
There are those who find legitimacy in fidelity to what they call "the intentions of the Framers." In its most doctrinaire incarnation, this view demands that Justices discern exactly what the Framers thought about the question under consideration and simply follow that intention in resolving the case before them. It is a view that feigns self-effacing deference to the specific judgments of those who forged our original social compact. But in truth it is little more than arrogance cloaked as humility. It is arrogant to pretend that from our vantage we can gauge accurately the intent of the Framers on application of principle to specific, contemporary questions. All too often, sources of potential enlightment such as records of the ratification debates provide sparse or ambiguous evidence of the original intention. Typically, all that can be gleaned is that the Framers themselves did not agree about the application or meaning of particular constitutional provisions, and hid their differences in cloaks of generality. Indeed, it is far from clear whose intention is relevant—that of the drafters, the congressional disputants, or the ratifiers in the states?—or even whether the idea of an original intention is a coherent way of thinking about a jointly drafted document drawing its authority from a general assent of the states. And apart from the problematic nature of the sources, our distance of two centuries cannot but work as a prism refracting all we perceive. One cannot help but speculate that the chorus of lamentations calling for interpretation faithful to “original intention”—and proposing nullification of interpretations that fail this quick litmus test—must inevitably come from persons who have no familiarity with the historical record.
We have already discussed this issue, which is indeed a real issue, as well as the way that this is addressed in modern uses of these doctrines. However, Justice Brennan is determined to make this issue into sufficient grounds for delegitimizing the entire originalist/textualist movement.
Perhaps most importantly, while proponents of this facile historicism justify it as a depoliticization of the judiciary, the political underpinnings of such a choice should not escape notice. A position that upholds constitutional claims only if they were within the specific contemplation of the Framers in effect establishes a presumption of resolving textual ambiguities against the claim of constitutional right. It is far from clear what justifies such a presumption against claims of right. Nothing intrinsic in the nature of interpretation—if there is such a thing as the "nature" of interpretation—commands such a passive approach to ambiguity. This is a choice no less political than any other; it expresses antipathy to claims of the minority rights against the majority. 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 circumstance.
This paragraph contains the root of one of the multitude of problems with Justice Brennan’s “living Constitutionalism”. Justice Brennan assumes that originalist and textualist arguments would be used to limit the powers of the federal government to the powers laid out for it; in fact, that limitation of federal powers was intentional, intended by the Founders to protect minority rights from the power of a majority. However, Justice Brennan has refashioned that original concept into turning the federal government into an advocate of “social progress” — a goal with no place in the Constitution or in any of the founding documents of America. Instead of equality under the laws, Justice Brennan has laid down a foundation for some claims being (in the Orwellian term) “more equal than others”, because they are consistent with “social progress”. Talk about “arrogance cloaked as humility”!
By placing this argument first, Justice Brennan then is able to pivot back to making a relatively honest defense of the Supreme Court’s role in protecting the rights of the minority from the restrictive power of a popular majority, which thus allows him to present the extreme judicial activism inherent in pragmatism and cases such as Wickard v. Filburn as defenses of that tradition instead of its polar opposite:
Another, perhaps more sophisticated, response to the potential power of judicial interpretation stresses democratic theory: because ours is a government of the people's elected representatives, substantive value choices should by and large be left to them. This view emphasizes not the transcendent historical authority of the framers but the predominant contemporary authority of the elected branches of government. Yet it has similar consequences for the nature of proper judicial interpretation. Faith in the majoritarian process counsels restraint. Even under more expansive formulations of this approach, judicial review is appropriate only to the extent of ensuring that our democratic process functions smoothly. Thus, for example, we would protect freedom of speech merely to ensure that the people are heard by their representatives, rather than as a separate, substantive value. When, by contrast, society tosses up to the Supreme Court a dispute that would require invalidation of a legislature's substantive policy choice, the Court generally would stay its hand because the Constitution was meant as a plan of government and not as an embodiment of fundamental substantive values.
The view that all matters of substantive policy should be resolved through the majoritarian process has appeal under some circumstances, but I think it ultimately will not do. Unabashed enshrinement of majority will would permit the imposition of a social caste system or wholesale confiscation of property so long as a majority of the authorized legislative body, fairly elected, approved. Our Constitution could not abide such a situation. It is the very purpose of a Constitution-and particularly of the Bill of Rights-to declare certain values transcendent, beyond the reach of temporary political majorities. The majoritarian process cannot be expected to rectify claims of minority right that arise as a response to the outcomes of that very majoritarian process. As James Madison put it:
”The prescriptions in favor of liberty ought to be leveled against that quarter where the greatest danger lies, namely, that which possesses the highest prerogative of power. But this is not found in either the Executive or Legislative departments of Government, but in the body of the people, operating by the majority against the minority.”
Faith in democracy is one thing, blind faith quite another. Those who drafted our Constitution understood the difference. One cannot read the text without admitting that it embodies substantive value choices; it places certain values beyond the power of any legislature. Obvious are the separation of powers; the privilege of the Writ of Habeas Corpus; prohibition of Bills of Attainder and ex post facto laws; prohibition of cruel and unusual punishments; the requirement of just compensation for official taking of property; the prohibition of laws tending to establish religion or enjoining the free exercise of religion; and, since the Civil War, the banishment of slavery and official race discrimination. With respect to at least such principles, we simply have not constituted ourselves as strict utilitarians. While the Constitution may be amended, such amendments require an immense effort by the People as a whole.
The only part of this discussion with which originalists/textualists would disagree is Justice Brennan’s disguised advocacy in his last sentence for amending the Constitution through the judicial process because “[Constitutional] amendments require an immense effort by the People as a whole”. The Constitution was amended five times in twenty years (1951-71), which indicates that such an “immense effort” was both achievable and viewed as achievable — at least before Justice Brennan’s SCOTUS majority rendered it unnecessary, as primarily illustrated by cases such as 1973’s Roe v. Wade and Doe v. Bolton.
Next, Justice Brennan’s speech pivots to the main body of “living Constitutionalism” — the value choices attributed by the true believers in this activist theory, such as Justices Brennan and Jackson, to the Founders. To a large extent, that choice conflates the Constitution with the Declaration of Independence, as seen in Justice Brennan’s description:
To remain faithful to the content of the Constitution, therefore, an approach to interpreting the text must account for the existence of these substantive value choices, and must accept the ambiguity inherent in the effort to apply them to modern circumstances. The Framers discerned fundamental principles through struggles against particular malefactions of the Crown; the struggle shapes the particular contours of the articulated principles. But our acceptance of the fundamental principles has not and should not bind us to those precise, at times anachronistic, contours. Successive generations of Americans have continued to respect these fundamental choices and adopt them as their own guide to evaluating quite different historical practices. Each generation has the choice to overrule or add to the fundamental principles enunciated by the Framers; the Constitution can be amended or it can be ignored. Yet with respect to its fundamental principles, the text has suffered neither fate. Thus, if I may borrow the words of an esteemed predecessor, Justice Robert Jackson, the burden of judicial interpretation is to translate "the majestic generalities of the Bill of Rights, conceived as part of the pattern of liberal government in the eighteenth century, into concrete restraints on officials dealing with the problems of the twentieth century." Board of Education v. Barnette.
The problem with this presentation is that, unlike the Declaration of Independence, which can be viewed as a “mission statement” for the nascent country, there is no such declaration of “fundamental principles” in the Constitution or the Bill of Rights. So how does one determine them? Isn’t it the height of arrogance to claim that we can gauge accurately the principles of the Framers from their laws? Or is it more the height of arrogance to further claim that the Constitution can be ignored by subsequent generations without first being amended?
The Constitution is not a statement of principles. Some of the principles can be inferred from the amendments that were adopted, but even those amendments can be viewed in multiple fashions. But it represents a set of rules, not principles. However, a judicial imperialist such as Justice Brennan has no doubts about his ability to precisely discern these unstated principles.
One thing to remember is that Justice Brennan is making this lengthy defense of his approach to Constitutional interpretation right at the moment that the 50-year hegemony of his methodology, dating back to the 1930s, was being seriously challenged by new Chief Justice William Rehnquist and Professor Bork, among others. The next year, President Ronald Reagan would nominate Antonin Scalia, a leading advocate of originalism and textualism, to SCOTUS, and today seven of the nine justices (Roberts, Thomas, Alito, Kagan, Gorsuch, Kavanaugh, and Barrett, lacking only Breyer and Sotomayor) profess to follow that method of interpretation. However, as discussed in the lead, the doctrine of living Constitutionalism or pragmatism continues to thrive as the unchallenged preference among the academic left and farther left.
Now in Justice Brennan’s presentation comes the core concept: the claim that the Constitution does not have a fixed meaning but rather must be given a meaning appropriate to our current time, a meaning with a “transformative purpose”. In making this argument, Justice Brennan cites to Weems, the 1910 SCOTUS case noted above to which even Justice Holmes objected.
We current Justices read the Constitution in the only way that we can: as Twentieth Century Americans. We look to the history of the time of framing and to the intervening history of interpretation. But the ultimate question must be, what do the words of the text mean in our time. For the genius of the Constitution rests not in any static meaning it might have had in a world that is dead and gone, but in the adaptability of its great principles to cope with current problems and current needs. What the constitutional fundamentals meant to the wisdom of other times cannot be their measure to the vision of our time. Similarly, what those fundamentals mean for us, our descendants will learn, cannot be the measure to the vision of their time. This realization is not, I assure you, a novel one of my own creation. Permit me to quote from one of the opinions of our Court, Weems v. United States, written nearly a century ago:
”Time works changes, brings into existence new conditions and purposes. Therefore, a principle to be vital must be capable of wider application than the mischief which gave it birth. This is peculiarly true of constitutions. They are not ephemeral enactments, designed to meet passing occasions. They are, to use the words of Chief Justice John Marshall, ‘designed to approach immortality as nearly as human institutions can approach it.’ The future is their care and provision or events of good and bad tendencies of which no prophesy can be made. In the application of a constitution, therefore, our contemplation cannot be only of what has been, but of what may be.”
Interpretation must account for the transformative purpose of the text. Our Constitution was not intended to preserve a preexisting society but to make a new one, to put in place new principles that the prior political community had not sufficiently recognized. Thus, for example, when we interpret the Civil War Amendments to the charter—abolishing slavery, guaranteeing blacks equality under law, and guaranteeing blacks the right to vote—we must remember that those who put them in place had no desire to enshrine the status quo. Their goal was to make over their world, to eliminate all vestige of slave caste.
Although Justice Brennan is correct about the purpose of the “Civil War Amendments”, his conclusion that the text of those amendments needs to be read or interpreted differently than that text would have been at the time of their passage is an unsupported assertion. To be sure, the fact that the Supreme Court majority of the late 19th century did not read or interpret the amendments as written, as we saw in The Slaughter-House Cases, does not mean that their writing or wording was inadequate—after all, four of the nine justices understood them correctly and dissented—but merely means that, as Justice Holmes and the legal realists had previously noted, judges tend to interpret the laws consistently with their own values, and the values of the majority of Supreme Court justices at the time did not match the values of the overwhelming majority in Congress and the overwhelming majority of American states that were reflected in those amendments. That gap, caused by justices applying their own values instead of the values as written, accounted in large part for the century-long shame of Jim Crow.
Interestingly, by the time of Plessy v. Ferguson, over twenty-three years after The Slaughter-House Cases, SCOTUS had moved further away from the principles of the 14th Amendment, as Plessy was decided by a 7-1 majority. Clearly, ignoring the law as written and coming up with principles to justify the deviation (such as “separate but equal”) led to disaster. So what is Justice Brennan’s answer to that problem? Interpreting the Constitution as written? Heck, no. Instead, he wants America to trust his values instead!
Finally, Justice Brennan turns to his animating judicial principle — changing the Constitution into a mission statement on “the dignity of man”, and issuing rulings consistent with his interpretation of how best to achieve that objective. I note that Justice Brennan may have been the only person in America who believed that a vastly stronger and more omnipresent central government was somehow an expression of “libertarian dignity”.
Having discussed at some length how I, as a Supreme Court Justice, interact with this text, I think it time to turn to the fruits of this discourse. For the Constitution is a sublime oration on the dignity of man, a bold commitment by a people to the ideal of libertarian dignity protected through law. Some reflection is perhaps required before this can be seen.
The Constitution on its face is, in large measure, a structuring text, a blueprint for government. And when the text is not prescribing the form of government it is limiting the powers of that government. The original document, before addition of any of the amendments, does not speak primarily of the rights of man, but of the abilities and disabilities of government. When one reflects upon the text's preoccupation with the scope of government as well as its shape, however, one comes to understand that what this text is about is the relationship of the individual and the state. The text marks the metes and bounds of official authority and individual autonomy. When one studies the boundary that the text marks out, one gets a sense of the vision of the individual embodied in the Constitution.
As augmented by the Bill of Rights and the Civil War Amendments, this text is a sparkling vision of the supremacy of the human dignity of every individual. This vision is reflected in the very choice of democratic self-governance: the supreme value of a democracy is the presumed worth of each individual. And this vision manifests itself most dramatically in the specific prohibitions of the Bill of Rights, a term which I henceforth will apply to describe not only the original first eight amendments, but the Civil War amendments as well. It is a vision that has guided us as a people throughout our history, although the precise rules by which we have protected fundamental human dignity have been transformed over time in response to both transformations of social condition and evolution of our concepts of human dignity.
In reality, the “pragmatism” exhibited by Justice Jackson, Justice Brennan, and their ilk remade the Supreme Court of their era into the American equivalent of the Guardian Council of the Islamic Republic of Iran, an unelected group with complete power over the country that required a theological devotion to its view of Islamic values. And I think that his view of SCOTUS jurisprudence as a quasi-religious exercise comes closest to explaining the extreme reaction that the potential reversal of Roe v. Wade has generated, because perceived heretics from the True Faith always generate such reactions.
But how to put a focus on human dignity into practice while supporting a huge expansion in the powers of the federal government (including administrative agencies) from those provided in the Constitution? Well, in Justice Brennan’s view, the continued growth of government that he and his allies have championed is simultaneously the change in circumstances that leads to the need for his “living Constitution”. Note, however, that Justice Brennan conceptually seems to view contracts as a modern invention, notwithstanding the fact that Article 1, Section 10 of the Constitution (adopted in 1788) provides that no state shall pass any law impairing the obligations of contracts. And further note that Justice Brennan has a distinctly negative view of U.S. economic mobility (as he argues that “hundreds of thousands of Americans live [their] entire lives without any real prospect of” owning real estate):
Until the end of the nineteenth century, freedom and dignity in our country found meaningful protection in the institution of real property. In a society still largely agricultural, a piece of land provided men not just with sustenance but with the means of economic independence, a necessary precondition of political independence and expression. Not surprisingly, property relationships formed the heart of litigation and of legal practice, and lawyers and judges tended to think stable property relationships the highest aim of the law.
But the days when common law property relationships dominated litigation and legal practice are past. To a growing extent economic existence now depends on less certain relationships with government—licenses, employment, contracts, subsidies, unemployment benefits, tax exemptions, welfare and the like. Government participation in the economic existence of individuals is pervasive and deep. Administrative matters and other dealings with government are at the epicenter of the exploding law. We turn to government and to the law for controls which would never have been expected or tolerated before this century, when a man's answer to economic oppression or difficulty was to move two hundred miles west. Now hundreds of thousands of Americans live entire lives without any real prospect of the dignity and autonomy that ownership of real property could confer. Protection of the human dignity of such citizens requires a much modified view of the proper relationship of individual and state.
In general, problems of the relationship of the citizen with government have multiplied and thus have engendered some of the most important constitutional issues of the day. As government acts ever more deeply upon those areas of our lives once marked “private,” there is an even greater need to see that individual rights are not curtailed or cheapened in the interest of what may temporarily appear to be the “public good.” And as government continues in its role of provider for so many of our disadvantaged citizens, there is an even greater need to ensure that government act with integrity and consistency in its dealings with these citizens. To put this another way, the possibilities for collision between government activity and individual rights will increase as the power and authority of government itself expands, and this growth, in turn, heightens the need for constant vigilance at the collision points. If our free society is to endure, those who govern must recognize human dignity and accept the enforcement of constitutional limitations on their power conceived by the Framers to be necessary to preserve that dignity and the air of freedom which is our proudest heritage. Such recognition will not come from a technical understanding of the organs of government, or the new forms of wealth they administer. It requires something different, something deeper—a personal confrontation with the well-springs of our society. Solutions of constitutional questions from that perspective have become the great challenge of the modern era. All the talk in the last half-decade about shrinking the government does not alter this reality or the challenge it imposes. The modern activist state is a concomitant of the complexity of modern society; it is inevitably with us. We must meet the challenge rather than wish it were not before us.
The challenge is essentially, of course, one to the capacity of our constitutional structure to foster and protect the freedom, the dignity, and the rights of all persons within our borders, which it is the great design of the Constitution to secure.
Of course, as Justice Brennan does not acknowledge, judicial overreach also has legislative consequences. Despite the efforts of progressives to blame the failure of the proposed Equal Rights Amendment on conservative activists such as Phyllis Schlafly, the judicial interpretation of “full equality for women” was actually what torpedoed it. The amendment passed Congress and was submitted to the states in 1972 with a seven-year ratification deadline, and was adopted by 28 states of the needed 38 states within a few months. However, people across the country soon noticed that the Court’s interpretation of the Civil Rights Act of 1964, which outlawed discrimination based on race, color, religion, sex, and national origin, and especially the Education Amendments of 1972, which prohibited sex-based discrimination in any school or other education program that received funding from the federal government, provided a statutory basis for full equality, with the exception of such matters as eligibility for the military draft. Only seven more states of the ten required ratified the proposed amendment over the next nine-plus years (Congress passed legislation to extend the deadline for ratification by three years, so the ratification deadline actually didn’t expire until 1982), and the proposed amendment joined a few other proposed amendments on the scrapheap of history. And the only Constitutional amendment passed since 1971 was one on Congressional pay introduced as part of the Bill of Rights in 1789 without a time limit, which was finally approved by three-fourths of the states in 1992.
After a brief digression on applying Constitutional rights to the states, consistent with the 14th Amendment, Justice Brennan returns to his main theme for the final time: the Constitution must be interpreted in ways consistent with his constantly-evolving definition of human dignity.
Of course the constitutional vision of human dignity has, in this past quarter century, infused far more than our decisions about the criminal process. Recognition of the principle of "one person, one vote" as a constitutional one redeems the promise of self-governance by affirming the essential dignity of every citizen in the right to equal participation in the democratic process. Recognition of so-called "new property" rights in those receiving government entitlements affirms the essential dignity of the least fortunate among us by demanding that government treat with decency, integrity and consistency those dependent on its benefits for their very survival. After all, a legislative majority initially decides to create governmental entitlements; the Constitution's Due Process Clause merely provides protection for entitlements thought necessary by society as a whole. Such due process rights prohibit government from imposing the devil's bargain of bartering away human dignity in exchange for human sustenance. Likewise, recognition of full equality for women--equal protection of the laws—ensures that gender has no bearing on claims to human dignity.
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I do not mean to suggest that we have in the last quarter century achieved a comprehensive definition of the constitutional ideal of human dignity. We are still striving toward that goal, and doubtless it will be an eternal quest. For if the interaction of this Justice and the constitutional text over the years confirms any single proposition, it is that the demands of human dignity will never cease to evolve.
So, if you support Justice Brennan’s vision of the Supreme Court as an all-powerful Guardian Council, you’re also probably OK with his vision of “pragmatism” as a method of Constitutional interpretation. On the other hand, if you want to enforce the actual Constitution, instead of an elite “star chamber” interpretation of it as an “oration on the dignity of man”, you’re more likely an originalist/textualist. The choice is yours . . . at least until you get cancelled by the left or the farther left as an enemy of human dignity . . . or perhaps simply as “un-mutual”.
Be seeing you.