an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Constitution Day lecture, Johns Hopkins University, Sept. 16, 2010
We are here today to celebrate Constitution Day, and, more importantly, my daughter’s 10th birthday; I am grateful to all of you for joining us on that occasion. Teymura, my daughter, feels deeply honored.
It is so great to be back in Baltimore. I grew up here, as those of you with acute accent detection capacities can probably tell from my genteel “Balmur” brogue. My brother and I grew up in a house just 3-4 blocks from the Pimlico racetrack, where we spent much of our childhood. I graduated from Poly in 1976. My dad was a public health economist here at Hopkins and my dad’s second wife, Mary Klarman, was an epidemiologist in the school of public health. I can’t count how many Hopkins lacrosse games my brother and I were dragged to while growing up.
More importantly, I grew up a huge Baltimore Orioles fan, dating back to the days of Frank and Brooks Robinson, Boog Powell, and Jim Palmer.
Indeed, I remained an avid Os fan until about 2000, when I finally was no longer able to stomach what Peter Angelos was doing to the team. Sending Mike Mussina to the dreaded Yankees was the final straw for me, and at that point I became a Red Sox fan–for reasons too complicated to go into here. Judging from the crowds at Camden Yards when the Sox are in town, I would say that most Baltimoreans made the same choice.
Anyway, it’s a thrill to be back home, and I thank Joel Grossman very much for the invitation, which I fear he may regret after he hears what I have to say.
I am going to make 4 points today. These points are going to be fairly critical of the phenomenon that I will call constitutional idolatry. Some might even call these remarks disrespectful of the Constitution, though I don’t believe that to be the case. So I’m going to start with a disclaimer: There are many aspects of our political culture in the U.S. in which I think we can justifiably take great pride.
It’s a wonderful thing that one can criticize the president–even call him a socialist or a coddler of terrorists, if you like–and not worry about being arrested for it.
It’s a great thing that one can pursue one’s own religious beliefs with a great deal of tolerance and that a black man can be president of a country that held blacks in slavery just 150 years ago and that still had an entrenched system of white supremacy until roughly 50 years ago.
It’s a great thing that in America a woman came very close to being elected president of the United States two years ago and that one probably will win such an election sometime fairly soon.
I personally think it’s a wonderful thing that in many states gay and lesbian couples can get married just like straight couples, and that, I would predict, they will be able to do so in most of the country within another decade or so
These are accomplishments of which we can be justifiably be proud as a nation. Many of these things would not be possible in much of the world today.
I just don’t think these things have very much to do with the constitution.
I have four points I want to make today against constitutional idolatry, which is my label for our misguided tendency to blindly worship the Constitution, giving it credit for all the things we love and honor about our country.
(1) The Framers’ constitution, to a large degree, represented values we should abhor or at least reject today.
(2) There are parts of the Constitution with which we are still stuck today even though we would never freely choose them and they are impossible to defend based on contemporary values.
(3) For the most part, the Constitution is irrelevant to the current political design of our nation.
(4) The rights protections we do enjoy today, the importance of which I do not minimize, are mostly a function of political and social mores, which have dramatically evolved over time and owe relatively little to courts using the Constitution to protect them.
(1) The Framers’ constitution was not so admirable.
Most obviously, the Framers chose to protect slavery. I think it would be ahistorical to criticize them for doing so; I don’t think they had much choice if they wanted the South in the Union.
But, still, it’s hard to celebrate a Constitution that explicitly guaranteed the return of fugitive slaves to their masters, protected the international slave trade for 20 years, and enhanced the South’s national political representation to reflect its slaveholding.
Perhaps less obviously but equally importantly, the Framers’ constitution was mostly a conservative, aristocratic response to what they perceived as the excesses of democracy that were overrunning the states during the 1780s.
The Framers were trying to create a powerful national government that was as distant from popular control as possible: very long terms in office, large constituencies, indirect elections. They thought of democracy as rule by the mob. They didn’t think poor people could be trusted with the suffrage. They didn’t think women should vote.
A lot of what the original Constitution was about was constraining the power of the states to pass laws beneficial to debtor farmers in a time of economic distress and expanding the power of the national government to that it could efficiently raise taxes in order to pay off government bond holders, who often were merely speculators in such debt rather than initial suppliers of credit.
It seems to me difficult today to celebrate such intentions.
(2) Although I’m going to argue in my third point that the Constitution is mostly irrelevant to how we run our political system today, there are a few very specific parts of the Constitution that still bind us and are indefensible and indeed pretty ridiculous. Let me give you 3 examples.
(A) two senators for every state. This constitutional provision is a function of small states playing a good game of poker at the founding. Delegates from states like Delaware simply threatened to walk out of the Philadelphia convention if not given equal representation in the Senate. They claimed they were worried about the large states ganging up on them if not given equality in the Senate, but in fact they were just extorting what they could get by threatening to take their marbles and go home.
It is impossible, I think, to justify in a system that celebrates the idea of all people counting equally–the notion of one person, one vote–the fact that Wyoming has the same two votes in the Senate as California, when the latter has something like 65 or 70 times the population.
This is crazy.
This extreme malapportionment of the Senate also has real effects: Clarence Thomas would not be on the Supreme Court if the Senate were apportioned according to population. Democrats would have been able to get a more progressive health care bill through Congress if not for having to make concessions to some western senators who represent mostly cattle and trees.
And by the way, this provision is unamendable without the consent of every state, which I don’t see Wyoming volunteering anytime soon.
(B) Consider a second example of a constitutional stupidity: The Guvernator, Arnold Schwarzenegger, cannot be president of the United States because of the Constitution. Now you may be thinking that’s a good thing, and I’d probably agree with you. But it’s not a good thing that no foreign-born person can be president of the United States. That’s rank discrimination–especially abhorrent in a nation of immigrants.
It’s in the Constitution for reasons that have no applicability today. The Framers were worried that some foreign agent might ingratiate himself to the American people, be elected president, and then sacrifice the nation’s interests for a pot of foreign gold. I don’t think we’d lose a lot of sleep over that possibility today if this constitutional barrier were removed.
(C) My third example is the electoral college system of selecting the president, which has the same effect as the Senate in overempowering states with tiny populations. It is also virtually impossible to defend today, was put into the Constitution by Framers who didn’t trust the People to elect the president, and yet we’re still stuck with it.
(3) Perhaps more important than the Constitution’s containing some indefensible provisions is the fact that it’s largely irrelevant to current political arrangements:
We’ve ignored the document, and the Supreme Court, its supposed guardian, has largely acquiesced in that arrangement (and could hardly have done otherwise).
The national government was supposed to be one of limited, enumerated powers. Today, the national government can do almost anything it wants without running up against constitutional limits–except pass a health care bill, apparently, at least according to the Tea Partiers.
The Framers set up three branches of government–executive, legislative and judicial–but today we have a vitally important fourth branch–the administrative state–which is almost certainly unconstitutional in multiple ways according to the original design of the Framers. Yet courts have legitimized administrative agencies, and it’s hard to imagine them doing otherwise.
The Framers thought Congress would legislate, but instead it passes vague, almost meaningless statutes and turns over interpretation to agencies. Yet the Court hasn’t struck down a law on so-called “nondelegation” grounds for over 70 years.
The Framers also created a limited executive, but today we have an imperial executive, who gets the country into wars (whereas the Constitution says Congress is the branch that should declare wars).
The president today also circumvents the Constitution’s procedural requirements for enacting treaties through executive agreements, and almost completely sets the national political agenda, both domestic and foreign. The Framers contemplated nothing like this.
The Framers would not recognize our system of government today, yet the idea that courts would strike it down as unconstitutional seems almost inconceivable. The original design of the Constitution has become almost completely irrelevant.
Fourth and finally, and perhaps most importantly: What about the Constitution’s importance in terms of protecting individual rights through judicial review? Surely that’s something that we can justly take pride in and which makes it appropriate to celebrate the Constitution on my daughter’s 10th birthday.
Well, it turns out, not so much.
I wouldn’t say the Constitution is completely irrelevant here, only mostly so.
Courts interpreting the Constitution have failed to protect rights we value today as much as they have succeeded, and when they have succeeded, it’s mostly because public opinion has evolved in favor of the rights rather than because the courts have heroically stood up for oppressed minorities.
Those are two separate points; let me say a word about each.
(A) With regard to the Court’s failures to stand up for rights:
In Dred Scott, the Court protected the rights of slaveholders, not of slaves.
In Plessy v. Ferguson, the Court held that state-mandated racial segregation was permissible under the Equal Protection Clause.
In Korematsu, the Court upheld Japanese American internment.
In the late 1910s, during the first Red Scare, and in the 1950s, during the second Red Scare, the Court approved the criminal prosecution and political persecution of those on the left of the political spectrum who were alleged to be communists or anarchists.
Before 1970, the Court consistently and repeatedly denied the right of women to equality under the Fourteenth Amendment.
In Bowers v. Hardwick in 1986, the Court, in an opinion dripping with homophobia, said that the Constitution permitted states to criminalize same-sex sexual relations between consenting adults
Now one might be inclined to respond to this line of criticism along the following lines: Sure, the Court hasn’t always protected minority rights as much as we would like, yet the Court has done some great things too–like striking down school segregation in the 1950s, or securing the rights of criminal defendants in the 1960s, or protecting the rights of women in the 1970s.
This leads to my second point with regard to the Court’s protection of individual rights:
Yes, some Court rulings are favorable to civil rights and civil liberties, but virtually all of these rulings consisted of the Court reflecting evolving social mores. None of these rulings contravened the strong preferences of the American public, and most of them actually were supported by a majority of Americans.
Brown v. Board was a function of the dramatic changes in post-World War II racial attitudes and practices.
Before Brown, Jackie Robinson had already desegregated Major League Baseball (a point of trivia for the baseball-obsessed, like myself: did you know that there was nearly a race riot here in 1946 when Robinson played a game in Baltimore as a member of the Montreal team in the International League? Or that the NAACP lobbied against Baltimore getting the Orioles in 1954 because it was such a racist city?)
Before Brown, President Truman had already begun desegregating the US military, Ralph Bunche–a black man–had already won a Nobel Peace prize, Justice Felix Frankfurter had already hired the first black law clerk in the Court’s history, and President Roosevelt had appointed the nation’s first black general during World War II.
Even in the South, dramatic changes in racial attitudes and practices had taken place in the decade before Brown: Black voter registration had increased from 3% to 20%, dozens of southern cities hired their first black police officers since Reconstruction, blacks were serving again on southern juries for the first time in half a century, and minor league baseball teams, even in Deep South cities like Birmingham and Montgomery, Alabama were integrating their squads.
The Justices in Brown understood they were riding the crest of a wave, not creating a brand new movement for social reform.
Similarly, the Court in the 1970s did indeed strike several blows for gender equality but they all came after, not before, Congress had passed the Equal Rights Amendment. Most of these decisions were simply striking down the anachronistic laws of a few outlier states. Prior to 1971, the Court had literally not lifted a finger for the rights of women.
Lawrence v. Texas in 2003 struck down state laws criminalizing same-sex sodomy, overturning the Court’s earlier ruling in Bowers, but that decision came after the vast majority of states had already done away with such laws and even those states retaining the laws virtually never prosecuted anyone under them.
The Court’s first recognition of the right to privacy came in 1965 in a case from Connecticut, where the state criminalized the use of contraceptives, even by married couples using them in the privacy of their bedrooms. Only two states in the country at that time refused to recognize such a right. Like much of constitutional law, Griswold v. Connecticut was an instance of the Court taking a dominant national norm and using it to suppress a few state outliers. That’s what the Warren Court did best, usually suppressing southern outliers but, occasionally, as in Griswold, also Catholic outliers.
The Court’s recognition of the right of indigent felony defendants to state-appointed counsel in 1963 in Gideon v. Wainright came at a time when just a handful of states, mostly southern, refused to acknowledge such a right of their own volition.
I wouldn’t say the Court never stands up for unpopular rights and unpopular groups, but it rarely does so, and never in the face of overwhelming public opposition.
The main reason for this is that the Justices are too much a part of contemporary culture and the present historical moment to even imagine taking positions contrary to that of dominant public opinion.
The NAACP wouldn’t even bring a case challenging public school segregation before World War II because it simply assumed it would lose.
Not even the ACLU dreamed of challenging restrictive abortion laws in court until the mid-1960s because before the explosion of the second wave of modern feminism in the late 1960s, the idea of a constitutional right to abortion was almost inconceivable.
Groups like the American Jewish Committee refused even to bring constitutional challenges to state-sponsored school prayer until around 1960 because nobody could imagine the Supreme Court invalidating that practice until after the demise of the nation’s unofficial Protestant establishment.
Gay marriage cases were laughed out of court in the 1970s, and none of the national gay rights organizations supported such litigation until quite recently, because they understood this basic point I am making: Courts are too much a reflection of public opinion ever to get too far out of touch with it.
So, to conclude, we do indeed have many political accomplishments as a nation in which we should take great pride: a strong tradition of free speech, free exercise of religion, general racial and ethnic tolerance, rapidly growing toleration of diversity in sexual orientation.
But these accomplishments are due more to us as a nation than to the Constitution or the courts that enforce it.
The Constitution was drafted over 200 years ago by people with very different concerns and values. They didn’t value gender or racial equality as we do. They certainly didn’t believe in a right to sexual autonomy. Their notions of free speech were vastly more restrictive than our own. And, despite the First Amendment to the Constitution, they had no problem with established churches or public displays of Protestant Christianity by government officials that would strike us today as deeply exclusionary.
And the Supreme Court for much of its history has approved of racial segregation and disenfranchisement, the subordination of women and gays and lesbians, the criminalization of dissident speech, and a very narrow conception of the separation of church and state and of the rights of criminal defendants.
In the end, we, the American people, determine what sort of country we live in–the Constitution and the courts play a relatively marginal role in that process.
To paraphrase the great jurist with the greatest of names—the Honorable Learned Hand—no constitution and no court are going to rescue us from white supremacy or sexism or homophobia or Japanese American internment or FBI profiling of Arabs and Muslims.
To believe otherwise is a delusion, and possibly quite a dangerous one.