Orginally Published in 65 Fordham L. Rev. 1703 (1997).
Copyright 1998 by Jack M. Balkin. All Rights Reserved.
Agreements with Hell and Other Objects of Our Faith
You might think that at a conference devoted to constitutional fidelity, the first question to address is whether the Constitution deserves our fidelity. Therefore, there is some irony in the fact that the question is raised in a panel at the very end as we are all getting ready to go home.
Yet I think that this placement is symbolically appropriate. Fidelity to the Constitution is something that most constitutional lawyers - and indeed most citizens - take for granted as an important political value. Of course one wants to be faithful to the Constitution. What judge, lawyer or law professor wants to be thought of as unfaithful to the Constitution? Who wants to be known as a constitutional adulterer? It reminds me of Jordan Steiker’s comment when a student asked him whether he believed in a living Constitution: “Yeah, like I’m going to be in favor of a dead one!”(1)
I was tempted, in fact, to entitle this Article “In Praise of Constitutional Adultery.” But that is not my real goal. I am not here to bury constitutional fidelity, much less to praise it. As I shall argue in more detail momentarily, it’s not really possible to be against fidelity if one is seriously interested in interpreting the U.S. Constitution. Fidelity is the whole point of the enterprise. What we can ask ourselves is what this enterprise does to us. Fidelity, I shall argue, is not simply a property of an interpretation. Fidelity is a feature of a self who disciplines herself to think and argue in a certain way. Fidelity is the result of entering into a particular practice of language and thought and allowing one’s self to be shaped by this practice. Fidelity is an interpretive attitude that produces psychological pressures on us and affects us for good or for ill.
If we think of fidelity as a property of a good interpretation, there can be no question whether fidelity is a good thing or a bad thing. Only when we understand fidelity in psychological and sociological terms - only when we see it as a practice of socialization and a discipline of thought that does something to us and to our society - can we ask the question whether the Constitution deserves our fidelity.
The practice of constitutional fidelity creates social and psychological pressures on us because the Constitution exists in a political system that is certainly not completely just and may in fact be very unjust. Recognizing that the Constitution we are faithful to might be an evil Constitution would create enormous cognitive dissonance, because we face enormous pressures for fealty to the Constitution both as a national symbol and as the basis of our legal system.
The social and psychological pressures that arise from the practice of fidelity create three basic kinds of ideological effects. The first is that we will tend to see the Constitution as standing for whatever we believe is just, whether it does or not, and whether it ever will be so. In this way the “true” Constitution can be separated from any evils of the existing political system. This is a matter of conforming the Constitution to our ideas of justice, and so we might call it interpretive conformation.
The second possible effect is that we will accept what we think the Constitution requires as being just, or at least not too unjust. In this case we conform our beliefs about justice to our sense of what the Constitution means, and not the other way around. We might call this interpretive cooptation. It allows us to pledge faith to the Constitution because we decide that things are not really so bad after all.
Finally, the practice of constitutional fidelity can affect us in a third way. Immersing ourselves in this practice makes it seem natural for us to talk and think about justice in terms of the concepts and categories of our constitutional tradition. In this way, the practice of constitutional interpretation can actually skew and limit our understandings about justice, because not all claims are equally easy to state in the language of that tradition.
I. The Problem of Constitutional Evil
Within our legal culture the idea of fidelity to the Constitution is seen as pretty much an unquestioned good. Each member of the bar takes an oath to uphold the Constitution, and any federal judicial nominee who professed no interest in fidelity to the Constitution would soon find him or herself with no political support and no job. I also suspect that we would find similar sentiments among the general public, who do not have judges’ obligations of role morality, and who may go through their entire lives without having to swear an oath to uphold the Constitution.(2)
Lawyers also do not see the question of fidelity as on the table for debate; no one who practices law claims to be uninterested in being faithful to the Constitution. Rather, they are concerned about how to be faithful. People talk and make arguments in terms of what is faithful to the spirit or the letter or the history or the traditions of the Constitution, even if other people believe that they are not being faithful. Moreover, one gains a decisive rhetorical advantage against one’s opponents if one can show that they are not being faithful to the Constitution; faced with such an accusation, they must respond by showing why they are being faithful after all. For the same reason, constitutional theorists take great pains to demonstrate the fidelity of their favored constitutional doctrines and their favored methods of constitutional interpretation. It is not enough that a theory or a doctrinal innovation is a really good idea; enormous efforts must be expended to show that it is also a faithful interpretation of the Constitution.
It is not accidental that fidelity is seen as a basic and unquestioned norm, not only at conferences like this one devoted to constitutional fidelity, but in all constitutional law and virtually all discussions of constitutional theory. Fidelity is not a virtue but a precondition. It’s not just a good thing, but the point of the practice of constitutional interpretation. To claim to interpret the Constitution is already to claim to be faithful to it. Conversely, insisting that one does not care about fidelity does not simply put one at a severe disadvantage in convincing others to one’s point of view; it takes one outside of the language game of constitutional interpretation. It is to announce that one is doing something else - whether political theory, economics or sociology - but most assuredly not constitutional law. When we say that fidelity is not important to us, we are no longer interpreting the Constitution, we are criticizing it.(3)
If fidelity is an inherent norm in the practice of constitutional interpretation, what could possibly be wrong with it? I think there are two basic objections one could make to the idea of constitutional fidelity. The first is that it is impossible and the second is that it is undesirable. Often claims of impossibility presuppose a controversial notion of what fidelity is. So someone who thinks that fidelity means only fidelity to the Framers’ intentions could argue that fidelity is impossible because with respect to many important questions these intentions cannot be known for certain. One way to respond to such objections is to question their assumptions about the nature of fidelity. We could reply that fidelity requires more than just adherence to text or intentions. That, of course, is the burden of most of the other papers in the present symposium. They all hope to explore the ways in which one can be faithful to the Constitution.(4)
My major concern, however, is with the second question - whether fidelity is undesirable. This is the problem of constitutional evil.(5) The problem of constitutional evil is the possibility that the Constitution is responsible, directly or indirectly, for serious injustices.(6) The argument from constitutional evil against constitutional fidelity is that the Constitution does not deserve our fidelity because the Constitution is either unjust or permits and gives legal sanction to serious injustices. When we engage in the practice of constitutional fidelity, the argument goes, we further and help legitimate those injustices. Fidelity should be offered only to those practices and institutions that are just; it should not be extended to those that are wicked. This criticism of constitutional fidelity is really a criticism of the social practice of constitutional interpretation. It argues that it is a practice that sucks us into something deeply unjust and directs our energies to its perpetuation.
Now of course, it is possible to argue that only certain parts of the Constitution are wicked, and that we only have to be faithful to the ones we admire. However, this seems a fair-weather sort of fidelity. It’s like saying “Well, I’ll only be faithful to the Constitution as long as it’s convenient to me or as long as it doesn’t upset my political scruples.” When phrased in this way, it seems clear that being a little bit unfaithful is like being a little bit pregnant. If one is to exercise the virtue of constitutional fidelity, it must be to the entire document, not just a part. Of course, in practice it’s quite possible that judges and lawyers exercise selective fidelity to the Constitution. They do so by conveniently overlooking or disregarding parts of the Constitution that they find unpalatable.(7)
But for the purposes of this Article, I want to be forthright about what constitutional fidelity requires of us. And the question of constitutional evil arises in just this case: If the Constitution, or parts of it, permits or even requires great evils, why does it deserve our fidelity?
This is not a hypothetical question. Even today there are features of our Constitution that sanction great injustices. Of course, if we began to list them, we would no doubt end up disagreeing about what they were. Some would point to the ability of legislatures to throttle economic liberty with regulations, others would point to the ineffectual protection of minority rights, still others would decry the Constitution’s grant of a right to slaughter the unborn, and still others would point to its protection of the power of money to corrupt the political process. I do not wish to enter into the details of these debates here. Rather, I want to talk about the general consequences of fidelity to an unjust Constitution, whatever the parameters of its perfidy. That is because, as I shall describe later, most citizens have an emotional stake in the basic justice of our Constitutional institutions, even if they disagree about marginal elements.(8)
Thus it is often difficult for many Americans to confront the problem of pervasive constitutional evil directly. It is far easier to pick an example from our constitutional past that most people today would agree was a profound example of constitutional evil: the constitutional protection of slavery.
One of the great debates of the first half of the nineteenth century was the extent to which the Constitution protected the institution of slavery. Although the Constitution made oblique references to slavery at several places, the protection of slavery was very much built into its structure. First, the South was permitted to count slaves as three-fifths of a person for purposes of bolstering its representation in the House of Representatives and the Electoral College. Thus, slavery was not only condoned, it was used to buttress the political power of the slave-holding states. At several points in the antebellum era key legislation affecting the rights of slave-holders was passed or defeated only because of the South’s additional votes.(9) Second, one of the two unamendable constitutional provisions according to Article V was Article I’s requirement that the slave trade could not be abolished in this country before 1808.(10) Third, the Fugitive Slave Clause protected the rights of slave owners in slave states by guaranteeing that free states would act to return slaves to their “lawful” owners.(11) In Prigg v. Pennsylvania,(12) the Supreme Court, in an opinion by Justice Story, held that the Fugitive Slave Clause was self-executing, and authorized slave holders to use self-help to recapture escaped slaves even in free states. The Court also upheld the Fugitive Slave Act of 1793, which authorized federal judges to return escaped slaves to their masters. Finally, in Scott v. Sandford,(13)Chief Justice Taney, relying on his view of the original understandings of the Constitution, held that blacks, even free blacks, were not citizens for purposes of the diversity clause of Article III.(14) The history of slavery in the United States and the constitutional responses to that institution raise the issue of constitutional evil in its most profound form. It was for this reason that William Lloyd Garrison, one of the leading white abolitionists, described the Constitution as “a covenant with death, and an agreement with hell.”(15)
Nevertheless, cases like Dred Scott and Prigg complicate the question of constitutional evil, for they are admittedly doctrinal glosses on the Constitution. Indeed, what does it mean to say that the Constitution itself is evil? Perhaps this is merely an objection that people have used and interpreted the Constitution in the past to justify serious evils and disguise or legitimate great injustices. Perhaps people speaking in the name of the Constitution, or even clothed with the authority of interpreting the Constitution (like judges), have used the symbolic and legal power of the Constitution to justify an unjust status quo or to move the country in an even more unjust direction. But this does not mean that the Constitution itself is evil or unworthy of our fidelity. It simply means that bad interpretations of the Constitution, which are themselves unfaithful to its spirit, are evil or unjust. The Constitution itself (i.e., the best interpretation of it) could still be deserving of our respect and fidelity. One might point out that some members of an extremist militia think that the Constitution permits or even requires that all Jews and blacks be expelled from the United States, but this does not make the Constitution evil; it merely shows that these militia groups have the wrong interpretation of it. Similarly, Justice Taney’s infamous opinion in Dred Scott, which held that blacks were not citizens for purposes of the diversity clause, was not an example of constitutional evil but of an evil and wrong interpretation of the Constitution, even if that interpretation was, for a time, incorporated into the positive law of the United States. In short, just because people have used the Constitution for bad ends in the past does not mean that the Constitution itself is evil or undeserving of our fidelity.
This response solves the problem of constitutional evil by differentiating an ideal Constitution from past interpretations of the Constitution and past actions done in the name of the Constitution. It tries to separate the true Constitution or the best interpretation of the Constitution from its various historical interpretations and manifestations. It hopes to separate the Constitution from parts of the constitutional tradition and even from positive constitutional law. We might call this project Ideal Constitutionalism.(16)
Ideal Constitutionalism is an example of what I call interpretive conformation. It solves the problem of fidelity to an unjust Constitution by conforming the object of interpretation to our sense of what is just. This practice is an exaggeration of a perfectly normal feature of interpretation, and so it is hard to tell where interpretation ends and conformation begins. When we interpret a text, we must try to understand how the text makes sense; we must try to see the true and good things in it. Otherwise we cannot be sure that the falsity, evil and incoherence we find in the text is due to the text itself or our inability to understand it fully. We might think of ideal constitutionalism as an overextension of this charitable attitude. Nevertheless, it is a charity that begins at home, for it conforms the meaning of the Constitution to our own sense of what is fair and just.
The most extreme example of this tendency is Frederick Douglass, the leading black abolitionist before the Civil War. Douglas rejected the conventional view that the Constitution sanctioned slavery. He argued that the antebellum Constitution made slavery unconstitutional.(17) It is difficult to know what to make of Douglass’s bold claim: One simultaneously wants to admire its audacity and cleverness and note its importance as a piece of progressive political rhetoric at the same time that one wants to dismiss it legally as off the wall.(18) Eventually Douglass was proved right - the Constitution now does prohibit slavery. But it took a Civil War and an explicit constitutional amendment to do it.
Over the years, students of the Constitution have attempted something very much like Frederick Douglass - although usually to a much lesser degree and without the moral authority and social influence that Douglass possessed. They have tried to offer theories of interpretation that produce a “Shadow Constitution” that remedies the positive law of the Constitution of its existing defects. This Constitution is likely never to see the light of day, but that does not stop constitutional theorists, who believe either that the mere force of argument will change the meaning of the Constitution or that the political forces of the future will somehow vindicate them. Sometimes these gambits are modest attempts at reform. Sometimes they border on self-parody.(19)
At the same time, a small cottage industry has grown up among constitutional theorists concerning how cases like Dred Scott or Prigg should have been decided.(20) These cases continually trouble constitutional scholars because they lay bare the connection between constitutional theory and the problem of constitutional evil. People use cases like Dred Scott and Prigg as litmus tests for the worth of their theories and as means of attacking competing theories. Thus, they say that Dred Scott and Prigg were wrongly decided because they used the wrong theory of constitutional interpretation, whether that be original intention, formalism or substantive due process.(21)
Some say the problem with the decisions is their judicial activism, others insist that these cases show the folly of judicial restraint. These alternative theories of constitutional interpretation are refuted precisely because they lead to unjust results; they can be rejected precisely because they force the issue of fidelity to constitutional evil.
The assumption implicit in all of these arguments is that when one has the right interpretative theory of the Constitution, the result is usually morally appropriate. Such a view is based on the conceit that the ideal Constitution, using the right methods of interpretation, might somehow skirt the problem of constitutional evil. In this way, one can be faithful to the Constitution rightly interpreted, rather than the positive law of the Constitution, and the problem of constitutional evil does not arise.
Unfortunately, this gambit cannot be completely successful. We cannot divorce previous interpretations of the Constitution from the best reading of that document for two reasons:
First, the Constitution is not merely a document; it is also an institution and a cultural and political tradition. Indeed, we might say that the document has legal and political significance because it is embedded in an ongoing set of institutions and an ongoing cultural and political tradition. These institutions and this tradition have assimilated and built upon the constitutional interpretations of the past, both noble and ignoble, good and evil. For this reason it is hard to formulate many constitutional questions, let alone answer them, except against the background of existing institutions, cultural understandings and doctrinal structures. Previous doctrinal glosses make it possible for us to think about certain constitutional problems as constitutional problems. These doctrinal glosses and the history of past interpretations of the Constitution create the conceptual apparatus that is the common language for raising and recognizing constitutional problems.
For example, we understand the Equal Protection Clause in the way that we do because of the way it was previously interpreted and the doctrinal glosses given to it. Our concepts of “heightened scrutiny,” or “discrete and insular minorities” come from this constitutional tradition, not from the text of the document or the intentions of its Framers.(22) And these doctrinal glosses are not always so easily removed. The Constitution is like a building whose later additions respond to the design limitations placed upon it by the work of earlier architects. It is like a painting that has been repeatedly touched up by later artists with a paint that mixes with the old colors. Doctrinal glosses, like paint, tend to become stuck to the Constitution and can be removed only with great difficulty. Hence, if we ask the question of whether homosexuals are protected from discrimination, for example, we conceptualize the question and answer it in terms of categories derived from these doctrinal glosses. We ask whether sexual orientation is a suspect classification, or whether homosexuals are exercising a fundamental right. And these glosses have their limitations; indeed, they may actually tend to subvert what is just or hide injustices from our view. In such a way the discourse of equality has been used not only to further egalitarian norms but to perpetuate and preserve racial hierarchy.(23)
Thus, when we interpret the Constitution, we are always faced with the question of what the best interpretation of the Constitution is given the past we have already had, the institutions we have already grown up in, the wars we have already fought. We must understand the Constitution in terms of the history of its authoritative readings, decisions around which expectations have been created and institutions have grown. We live in a world created by the products of previous constitutional good and constitutional evil. This tradition weighs on us, even if we do not feel its weight. It is our constitutional patrimony, or to invoke Philip Bobbitt’s phrase, our Constitutional Fate.(24)
Second, even if we equate the Constitution not with its doctrinal glosses but with a set of abstract ideas, like liberty, equality or due process, we must face the fact that these ideas are historically embedded abstractions. An historically embedded abstraction is an idea that people have identified with their own practices and used to justify them, even though it is always possible to say that they have fallen short of their own ideals. Thus, the Constitution offers us a complex of abstract ideas like due process or equal protection in the same way that concepts like liberalism or democracy or Christianity offer us abstract ideas. The problem is that one cannot fully divorce what people have made of these abstract ideas from the meanings of these ideas, even though we recognize at the same time that they have not always lived up to them. In the world of ideas as in the world of persons, one tends to be known by the company one keeps. The proof of the worth of liberalism, for example, must lie in part in the actual experience of states that claim to be liberal; the proof of the actual wisdom of democracy must be understood in terms of the actual experience of democratic nations, and so on. Theorists sometimes resist this idea. They want to claim that liberal states and democracies are merely imperfect reflections of these ideas, and that liberalism and democracy cannot therefore be held accountable for their failings. This leads to a sort of illicit intellectual bookkeeping: all of the beneficial features of liberal democracies get attributed to their being liberal and democratic, while all of their failures are assigned to their illiberal or antidemocratic aspects.
I believe this approach is mistaken. I think we have to understand liberalism as not simply a set of abstract principles, but as a set of historically emergent ideas that people have used to justify certain political practices, including some particularly unjust political practices. All injustices, even the grossest ones, are usually defended by some set of historically developed ideas, whether they be democracy, civilization, manifest destiny or Christian salvation. Human beings just seem to be designed to use such abstractions to defend their actions. We can laugh at or see through their pretensions, but this does not mean that these historically emergent ideals cannot be held complicit in these injustices. Rather, we judge the moral worth of such abstractions in large part by the ways they have been used in the past by people who claimed to be following them.
To put the matter another way, we must come to terms with the fact that political ideas and ideals have an ideological content and function - that ideas are not just ideals for emulation and attainment but also the means by which injustices like caste, status hierarchy, violence, aggression and oppression are justified by those who perpetuate them, both to themselves and to those who must suffer the consequences. Thus, in judging the benefits and detriments of an historically embedded abstract idea like democracy or liberalism, we must necessarily take into account its ideological uses and effects, and these can only be understood through the ways the idea has actually been wielded in existing historical institutions. We cannot judge the idea wholly on its historical implementations (for that leaves no room for its ability to effect beneficial improvement), but neither can we disregard them.
This fact is much easier to see with ideas that have existed in the distant past, or those in which we do not have a personal stake. It is much easier for us to identify the doctrine of the Divine Right of Kings with the foibles of the historical monarchies it was used to justify, but that is because we have no particular stake in legitimating monarchies or debating the intricacies of their governing ideologies. I suspect that many people on the right will laugh skeptically at the claim that socialism and communism cannot be adequately judged by the experience of socialist and communist regimes because socialist and communist ideas have never been adequately implemented. What better way, they will say, to know what the practical meaning of socialism or communism is than to look at the historical experience of these countries? Some secular people on the left who are appalled by certain doctrines of Catholic Church regarding women’s rights will no doubt have a similar judgment about Catholicism. Despite George Bernard Shaw’s famous quip that the only problem with Christianity is that it had never been tried, they will insist that they have at least some evidence by now of what Catholicism means in practice.
People use historically embedded ideals to justify past and current practices. Within a tradition people refer to that tradition’s ideals and symbols to give moral and political authority to what they want to do. The more hallowed the term - like liberty or democracy - the greater its ability to lend practices some undeserved measure of legitimacy and authority. We cannot close our eyes to this fact. This point is even stronger in the case of an ongoing political institution like the Constitution when the Constitution itself is held up as a venerated symbol of all that is good about America. The strengths and weaknesses of the Constitution necessarily are bound up with the actual injustices of our current society which claims to be governed by it. We must recognize and come to terms with the fact that the Constitution, and hence fidelity to the Constitution, has an important ideological component and ideological function. We are not doomed to be slavish dupes of this ideological function. We can and must be critical about it. But we can only be critical about it if we pay attention to it, if we recognize that the practice of fidelity to the Constitution cannot be fully separated from what the Constitution has been used to justify or permit in the past and what it is currently used to justify or permit. Claiming that ideological uses of the Constitution to legitimate injustice are irrelevant to what it means to be faithful to the Constitution is hiding one’s head in the sand. We cannot simply dismiss the argument that the Constitution does not deserve our respect because there is an ideal Constitution that does deserve it. That is because even though we can imagine ideal Constitutions, we are not in control of what the Constitution means. Even though individuals can have influence over the meaning of the Constitution, not all individuals have equal influence. The meaning of the Constitution is determined in large part by the social institutions and actors who create social meanings, including the judges who create doctrinal glosses. If you doubt this fact, look at how law professors still scurry like rodents to digest the table scraps of Supreme Court precedents handed to them by judges whom they may no longer respect and may even openly despise. Even law professors’ criticisms of these doctrinal glosses betray the power of these glosses in shaping the terms of the debate over the meaning of the Constitution.
The burden of my remarks so far is to head off the response to the problem of constitutional evil that identifies the Constitution with a Shadow Constitution that has never existed. One then can pledge faith to this Shadow Constitution and avoid the problem of constitutional evil. I hope I have shown that this is too easy a solution. Nevertheless, I do not wish to reject completely the practice of idealizing the Constitution (or certain parts of the Constitution) and holding this ideal up as the “real” Constitution or the “true spirit” of the Constitution. On the contrary, this idealization is an important way that constitutional change occurs under the name of faithful interpretation. It is to some degree what debates about faithful interpretation are all about. We continually invoke principles and ideals that we see emanating from the Constitution but imperfectly realized (in our view) in the body of existing doctrinal glosses and historical traditions. We attempt to persuade others that we are adverting to the true spirit of the Constitution even as our opponents claim that we are being faithless. This process is the process of constitutional interpretation; it is what constitutional fidelity involves. Through this process fidelity is manufactured. I use this expression without disrespect or cynicism. Fidelity is activity, process, coming into being. To be faithful involves the continuation of a tradition, which is then read back into the tradition retroactively as having always been a part of it. And to some extent the continuation always was part of the tradition, for it was one of the possible lines of continuation. But it is only partly true, for the continuation of any tradition must necessarily kill off other possible lines of development, and relegate them to the margins or brand them as heretical.(25) That is the sense in which tradition is also extradition.(26)
Following tradition is also a form of leading, of moving outward into the present under the banner of the past, of making the new out of the materials of the old.
Because faithfulness is the continuation of a tradition, it always involves variation as well as conformity. The conceit of tradition is its disguise of change under the name of continuity, its mask of permanence hiding the work of transfiguration. The problem of fidelity is precisely the problem presented by living and working within such a tradition. It is how to reconcile our sense of the ideals emanating from the Constitution with our Constitutional Fate: the history of glosses and glosses on glosses, the embedded practices and understandings, the injustices and evils that form our ambivalent inheritance. This predicament - how to reconcile the ideals we see in the Constitution with the evils we cannot close our eyes to - is the predicament of fidelity. It is the happy but deluded person who sees only these ideals but not the evils; it is the cynic who sees only the evils but not the ideals; it is the wise person who sees both and feels the tug that both exert on the spirit. She alone understands the true price of fidelity.
The Constitution cannot be a perfect document. It was fashioned by imperfect people in imperfect times and entrusted to future generations for its interpretation; and the people and the times have gotten no more perfect since. Although we should be suspicious of a theory of constitutional interpretation that sanctions great evils, we should be equally suspicious of any theory of constitutional interpretation that always avoids their possibility.
One might think that this is a criticism of an aspirational theory of constitutional interpretation - a theory that sees the Constitution as containing elements that aspire to a more just society.(27) It is not. Indeed, my own views of constitutional interpretation are largely aspirational. Even under an aspirational view of the Constitution, one must still face the problem of constitutional evil. Indeed, I would argue that an aspirational approach must accept the problem of constitutional evil most clearly and forthrightly.(28)
The best version of an aspirational account, I think, is one that recognizes that the Constitution is an imperfect document fashioned as a result of political compromise and limited vision, but that it nevertheless contains features and concepts that urge us to make our own institutions more just. The most obvious candidates for these concepts are the most abstract ones: hence the general phrases of “due process” and “equal protection” seem to possess an aspirational character. Yet we can read less general phrases aspirationally as well. The First Amendment states merely that Congress shall make no law abridging the freedom of speech; yet I think the best interpretation of this clause is as a general protection of freedom of expression, political activity and conscience, deeply tied to emancipatory processes of self-governance. This example shows that it is sometimes reasonable to give a limited text a more general and aspirational character. I think a similar point could be made about the Privileges and Immunities Clauses, the Republican Government Clause, the Title of Nobility Clauses, and the Bill of Attainder Clauses, although I recognize that this has not happened in the doctrinal tradition.(29)
Even though it is possible to read certain portions of the Constitution aspirationally, there are large parts of the text that resist such an interpretation. I do not merely mean the structural guarantees and provisions that set up the general housekeeping of the Republic. There are any number of clauses in the Constitution that seem to reflect the concerns of an earlier age. They exist even in the hallowed Bill of Rights.
We tend to forget that the original Bill of Rights was originally twelve articles, not ten. The other two proposed amendments are important because they give us a greater sense of the Bill’s structure. They are by no means foreign to the spirit of the Bill of Rights but help us to see more clearly what that Bill was. The second of the original twelve articles concerned compensation for Senators and Representatives; it was eventually enacted as the Twenty-Seventh Amendment.(30) The first article of amendment ensured an upper limit on the size of Congressional districts as the population grew.(31) Thus, our First Amendment was really the Third.
These provisions reveal more clearly that the Bill of Rights was and is not merely a charter of abstract liberties. It contains structural guarantees of federalism like those in the Tenth Amendment. It refers to specific procedural mechanisms - like the grand jury and the warrant - that are peculiar to the traditions of Great Britain and need not form a part of a just society. Indeed, many people think that some of these guarantees - the basic structure of an adversarial system in criminal cases and the requirement of trial by jury in all federal civil cases over twenty dollars - hamper the pursuit of justice.
Finally, we come to the Second and Third Amendments. Most people think that the Third Amendment is of limited relevance because it seems to address only the question of quartering troops in people’s homes. Thus, Ronald Dworkin gives it as a prime example of a clause that cannot be aspirational, because it is too specific in its origins.(32) I am not sure about that; I do not see how its level of specificity is that much different from the First Amendment or the Titles of Nobility Clauses. Yet I need not press that point here. The Third Amendment presents few problems for aspirationalists because at worst it seems innocuous and unlikely to do much mischief.(33) The Second Amendment, on the other hand, presents greater difficulties, especially for present day liberals who support gun control. Hence, as Sanford Levinson has argued, the Second Amendment is an embarrassment, which is largely ignored in contemporary constitutional law casebooks and theoretical discussions.(34) When it cannot be ignored, it is domesticated to the fullest extent possible. This may be fidelity to the Constitution, but I doubt it.
This is not to say that there cannot be aspirationalist interpretations of the Second Amendment. I am most intrigued by the possibility that the Second Amendment is actually designed to guarantee every American the right to serve in the Armed Forces and thus gain the rights of full citizenship that traditionally have attached to the assumption of this responsibility.(35)
Under this interpretation, a blanket exclusion of gays from the military would violate the Second Amendment because by denying them the opportunity to serve their country, it also denies them their right to establish themselves as full and equal citizens. Nevertheless, this egalitarian and aspirationalist interpretation is tied to a view of the world in which bearing arms and inflicting violence on others is part of one’s duty as a citizen. It is unclear that this interpretation can fully separate itself from the more violent aspects of American civic republicanism. It too cannot free itself from the problem of constitutional evil.
Clauses like the Second Amendment repeatedly poke holes in our pretensions to Grand Constitutional Theory. They show us what we should have already known, that no theory of constitutional interpretation can make the Constitution perfect, or can postpone or avoid the possibility that the Constitution does not require that we be good and that our institutions be just. Our theories of the Constitution are makeshift attempts, reflecting the concerns of our era, but dressed up as timeless claims about interpretation. Roe(36) and Brown(37) have produced their own idiosyncratic problematics, as Lochner(38) did in an earlier era, and with different results. The constitutional theories we offer are usually inspired by and designed to solve the doctrinal problems of our present age; they are usually embarrassed when we apply them to constitutional provisions not currently in view or transfer them to the constitutional questions of a different era. Imagine a legal process interpretation of the Fugitive Slave Clause, for example, or a fundamental rights approach to the Second Amendment. Conversely, as the constitutional approaches of the past are repeated in the present, their political valence changes, producing awkward and embarrassing results for the constitutional theorist. This ideological drift is not accidental. It is the result both of the imperfect nature of the intellectual tools we use to interpret the Constitution as well as the imperfect nature of the document we interpret.(39)
How, then is this realization consistent with an aspirationalist vision of the Constitution? Not only is it consistent with it, it is the aspirationalist vision. In the aspirationalist view, we, our institutions and our Constitution, always exist in a “fallen condition.” We begin as sinners, and we hope for redemption. Our Constitution, which offers the hope of redemption, is no less imperfect than we are, even for all of its grand promises. We, too, are imperfect, and we too make promises. Our Constitution is like ourselves, imperfect, a collection of moral and political compromises, yet with the urge and the ambition to become better than it is now. To be an aspirationalist is not to view the Constitution as a perfect thing but as an imperfect thing begging us to take its promises seriously. The point of aspirationalism is not to overlook the Constitution’s faults but to recognize them honestly and accept them as the premise upon which aspiration must build. The aspirationalist vision is one of redemption. There can be no redemption without the recognition of sin.
Thus, even at the moment when we want to read the Constitution as aspiring to great justice, we must soberly reflect on its evils, both potential and realized. Indeed, I tend to think that theories of the Constitution that do not recognize the presence of constitutional evil, that tend to make everything come out happily in the end, are not truly aspirational. Nor do I think that they show fidelity. I think they are apologetic and self-deluding. When we have faith in others in downtrodden circumstances - a drug addict, a criminal or an alcoholic - we do not simply pretend that they are something they are not: physically and spiritually healthy. We must understand them for what they are now, and see the possibilities of what they could be. This is what it means to have faith in them: to recognize the promise within, a promise that hopes to burst forth from the misery of their condition and the darkness of their souls. When we pretend that everything is all right with them, we engage in happy talk. This happy talk comes not from faith but fear of facing reality. True faith involves being willing to see evil flourishing while still hoping for the eventual growth of the good.
* Lafayette S. Foster Professor, Yale Law School. I am grateful to Bruce Ackerman, Akhil Amar, Sotirios Barber, Chris Eisgruber, Bob Gordon, Mark Graber, Michael Klarman, Sanford Levinson, Catharine MacKinnon, Dorothy Roberts, Reva Siegel and William Treanor for their comments.
3. Indeed, even when we criticize the Constitution, we are in some sense offering what we believe to be a faithful interpretation of it. We are saying that this is what the Constitution really means and we find it wanting for reasons of social justice or some other desideratum.
4. A more interesting version of the claim of impossibility would be a claim that the Constitution is incoherent. We cannot be faithful to the Constitution, the argument goes, because the Constitution is an internally contradictory document. One might argue that the Constitution’s calls for democracy and equality cannot be squared with its more concrete commitments, for example, to equal suffrage of states in the Senate. Or one could argue that the Constitution employs multiple and conflicting visions of liberty, equality and democracy that are invoked inconsistently and opportunistically. Hence, we are only fooling ourselves in thinking that the Constitution can be made coherent and as a result we will simply import our own views about politics into our interpretations, which may or may not be a good thing but it certainly will not be a practice of fidelity. Yet once again, one can respond to this claim by arguing that it misunderstands the nature of fidelity. Fidelity requires that we try to see the object of understanding as possessing some degree of coherence. Otherwise we cannot tell whether our discovery of incoherence in it is due to the features of the object or our own lack of understanding of it. At least if our goal is the rational reconstruction of doctrine, we must try our best to make the Constitution coherent in our interpretations before we pronounce it incoherent. Of course we might have other purposes in studying the Constitution, and hence our interpretive attitude toward it might properly be very different. See J.M. Balkin, Understanding Legal Understanding: The Legal Subject and the Problem of Legal Coherence, 103 Yale L.J. 105, 128-31 (1993).
6. The Constitution can be responsible for injustices because it permits them (e.g., slavery and police abuse), or because it prohibits government from engaging in reforms necessary to ameliorate them (e.g., the use of the Tenth Amendment to prohibit child labor laws).
8. Dorothy Roberts has pointed out that the felt need to have faith in the Constitution depends very much on one’s position in society. Dorothy E. Roberts, The Meaning of Blacks’ Fidelity to the Constitution, 65 Fordham L. Rev. 1761 (1997). The cognitive pressures on different groups may be different: It may be more difficult to imagine one’s self as complicit in and faithful to a fundamentally unjust system than to imagine one’s self as the victim of such a system. Many members of oppressed groups who have watched the Constitution’s promises of social equality repeatedly go unfulfilled may feel no strong psychological need to pledge faith in the Constitution. They may have less difficulty accepting the possibility that the American system of government is fundamentally flawed and unjust. I am indebted to Professor Roberts for these and many other insights in her fine paper.
15. The phrase comes from a resolution Garrison introduced before the Massachusetts Anti-Slavery Society in 1843: “That the compact which exists between the North and South is ‘a covenant with death, and an agreement with hell’ - involving both parties in atrocious criminality; and should be immediately annulled.” Walter M. Merrill, Against Wind and Tide: A Biography of Wm. Lloyd Garrison 205 (1963).
16. Similarly, Mark Graber calls “Perfect Constitutionalism” the position that “the Constitution requires that our society conform to the best principles of human governance.” Mark A. Graber, Our (Im)Perfect Constitution, 51 Rev. Pol. 86, 86 (1989). The phrase (and the title) are taken from Henry P. Monaghan’s famous critique, Our Perfect Constitution, 56 N.Y.U. L. Rev. 353, 358 (1981).
17. See Frederick Douglass, The Constitution of the United States: Is It Pro-Slavery or Anti-Slavery?, 2 Life and Writings of Frederick Douglass 467-80 (P. Foner, ed., 1950), reprinted in Paul Brest & Sanford Levinson, Processes of Constitutional Decisionmaking 207-11 (3d ed. 1992).
18. Few American lawyers at the time questioned the legality of slavery; indeed the Constitution’s protection of slavery was for many the most powerful indictment of existing American legal and political institutions. The legal consensus that slavery was protected by the Constitution produced thorny questions about compensation for former slave-holders and led to the felt need for a Thirteenth Amendment to the Constitution rather than subsequent judicial construction.
The best interpretation of Douglass’s remarks is that they are part of a tradition of oppressed groups attempting to hold the Nation responsible for its failed promises. See infra note 28; Roberts, supra note 8, at 1766-69. Douglass was a public personality, one of the most prominent opponents of slavery of his time and a leading figure in a significant social movement. Thus, his aspirational rhetoric was part of a conscious strategy to influence social attitudes. In this sense, however, his social position was quite different from that of most contemporary law professors and his political influence was significantly greater.
19. On the recurring problem of telling the difference between serious constitutional argument and parody, see Jordan Steiker et al., Taking Text and Structure Really Seriously: Constitutional Interpretation and the Crisis of Presidential Eligibility, 74 Tex. L. Rev. 237 (1995).
20. See Christopher L. Eisgruber, Dred Again: Originalism’s Forgotten Past, 10 Const. Commentary 37, 62-63 (1993); Ronald Dworkin, The Law of the Slave Catchers, Times Literary Supp., Dec. 5, 1975, at 1437.
21. For example, Robert Bork and Orrin Hatch, among others, have argued that the problem with Taney’s opinion in Dred Scott was its use of substantive due process, the theory underlying Roe v. Wade, 410 U.S. 113 (1973). See Robert H. Bork, The Tempting of America: The Political Seduction of the Law 28-34 (1990); Transcript to Confirmation Hearings of Justice Ruth Bader Ginsburg, Fed. News Serv., July 22, 1993, available in LEXIS, Legis Library, Fed. News Serv. File (remarks of Senator Hatch). Christopher Eisgruber, on the other hand, has argued that Taney’s opinion was based on a “dogmatic originalism” which looks only to the understandings of the past while being unconcerned with their injustices. Eisgruber, supra note 20, at 62-63. Robert Cover famously criticized Justice Story’s decision in Prigg as a “retreat[ ] to formalism” that allowed Story to abdicate responsibility for perpetuating injustice. See Robert M. Cover, Justice Accused: Antislavery and the Judicial Process 241 (1975). Yet Story’s decision - striking down Pennsylvania’s fugitive slave law and holding that the Fugitive Slave Clause was self-executing - could just as easily have been described as an unsound exercise of judicial activism.
27. See, e.g., Sotirios A. Barber, On What the Constitution Means (1984) (elaborating on the implications of apirational thinking on constitutional theory); Robin West, The Aspirational Constitution, 88 Nw. U. L. Rev. 241 (1993) (advocating an aspirational interpretation of the Constitution).
28. Members of oppressed groups often speak about the Constitution in aspirational terms. For some this is an act of faith in a Constitution that they believe will eventually vindicate their fidelity and grant them full and equal citizenship. But even for those who lack such faith, this rhetoric serves an important function as a demand for justice. For this latter group of nonbelievers the Constitution is more like a person who has repeatedly refused to pay a debt, or a spouse who has repeatedly been unfaithful. At some point one simply wants to insist that deadbeats and philanderers end their hypocrisy and live up to the obligations they have assumed. Thus the attitude of many who have been left out of the promises of the Constitution may not be one of belief in the ultimate goodness of the American constitutional system. It may rather be an attitude of “speaking truth to power” - making a demand that the Constitution should live up to its promises of justice and equality.
However, the trope of the unfulfilled debt also appears in the language of the constitutionally faithful. I believe that Frederick Douglass’s aspirationalism is best understood in this light. By reading the Constitution “literally,” and in light of the principles of the Declaration of Independence, Douglass was attempting to hold white Americans responsible for the promises they made in the Constitution. Douglass was attempting to collect on a moral debt, so to speak, created at the founding of the United States. See Roberts, supra note 8, at 1768. Roberts is correct that one does not have to believe in the essential justness of the Constitution to collect on such a debt, any more than one has to believe in the essential creditworthiness of a deadbeat when one demands that he or she pay up. However, the language of debt is often mingled with the language of faith: Martin Luther King’s famous “I Have a Dream” speech invokes the metaphor of debt while also pledging faith in the eventual justness of American constitutionalism:
So we’ve come here today to dramatize a shameful condition. In a sense we’ve come to our nation’s capital to cash a check. When the architects of our republic wrote the magnificent words of the Constitution and the Declaration of Independence, they were signing a promissory note to which every American was to fall heir. This note was the promise that all men, yes, black men as well as white men, would be guaranteed the unalienable rights of life, liberty, and the pursuit of happiness.
It is obvious today that America has defaulted on this promissory note in so far as her citizens of color are concerned. Instead of honoring this sacred obligation, America has given the Negro people a bad check; a check which has come back marked “insufficient funds.” We refuse to believe that there are insufficient funds in the great vaults of opportunity of this nation. And so we’ve come to cash this check, a check that will give us upon demand the riches of freedom and the security of justice.
Martin Luther King, Jr., I Have a Dream, Address at March on Washington, D.C., for Civil Rights (Aug. 28, 1963), in A Testament of Hope: The Essential Writings of Martin Luther King, Jr., at 217, 217 (James M. Washington ed., 1986).
29. But see Daniel A. Farber, “Terminator 2 1/2”: The Constitution in an Alternate World, 9 Const. Commentary 59 (1992) (showing how absent the Bill of Rights these clauses could have been turned into basic guarantees of human rights).
35. See Akhil R. Amar, The Bill of Rights as a Constitution, 100 Yale L.J. 1131, 1162-73 (1991); Carl Riehl, Uncle Sam Has to Want You: The Right of Gay Men and Lesbians (And All Other Americans) to Bear Arms in the Military, 26 Rutgers L.J. 343 (1995).