Balkinization: The Constitution Writ Large, Part One

The Constitution Writ Large, Part One

Guest Blogger

Larry Tribe

[This is the first part of Professor Tribe's Jackson Lecture delivered on July 8, 2015, at the Chautauqua Institution in Chautauqua, New York. Part Two will appear tomorrow.]

Thanks so much, John, for that too-generous introduction. And thanks to the Chautauqua Institution for making this day possible and to Greg Peterson of the Jackson Center for your terrific hospitality. I’m especially grateful to all of you who are here this (sunny? rainy?) afternoon.

It’s a great privilege to be delivering this annual lecture in honor of Robert H. Jackson. At his high school graduation over a century ago, Jackson compared this lovely place on the shores of Chautauqua Lake to a “little city . . . built upon hills and set gem-like within the seven encircling ends of a silver stream.”

The towering figures who have spoken in this magical setting, which Jackson described as “so cunningly fashioned by Nature’s matchless handicraft” – and the extraordinary man this lecture series honors – present a formidable challenge for anyone who steps to this podium – especially because, as you all know, we’re surrounded here by historians and experts on Jackson’s jurisprudence. So, just to set the record straight, I am neither a Jackson historian, nor an expert on all things Jacksonian. Nor have I ever played one on TV!

But, like many others, I’ve greatly admired Robert Jackson ever since I was in my twenties. What grabbed me first, I must confess, was his wickedly clever turns of phrase – a way of expressing himself that, as the late Louis Jaffe wrote, was “magnificent and athletic in exposition, powerful and ingenious in argument, racy, sardonic, alive with the passion and wit of his personality.”

Instead of saying he had changed his mind, Jackson would say: “the matter does not appear to me now the way it appears to have appeared to me then,” or “I can only say that I am amazed that a man of my intelligence should have been guilty of giving such an opinion.” And he’d wind up with: “If there are other ways of gracefully and good-naturedly surrendering former views to a better considered position, I invoke them all.”

Winston Churchill once said: “Words are the only things that last forever.” And a word, as Justice Holmes wrote, is but the “skin of a living thought.” It wasn’t just the freshness of Justice Jackson’s words that made his opinions unforgettable. It was the vibrancy of the living thoughts embedded in those words that made them so worthy of being remembered. They endure because the ideas they embody reach out to us beyond the frame defined by their particular context, the way Mona Lisa’s eyes famously follow us as we cross the room in front of her portrait.

The timelessness of Jackson’s thought was underscored when the second half of June arrived, with its series of thunderclaps – momentous events that shook our country and complicated the meaning of our Supreme Court’s decisions.

First came the shocking massacre in the sanctuary of Mother Emanuel Church in Charleston, a target carefully chosen for its simultaneously religious and racial significance.
That was followed the next morning by the Supreme Court’s Confederate Vanity Plate decision in Walker v. Sons of Confederate Veterans, a decision slated to be of interest mostly to First Amendment geeks but suddenly given a sweeping cultural significance by the twisted cause of the assassin who carried out his grotesque plan – and by the Confederate Emblems he brandished all over his hate-filled website.
Just days later came the long-awaited decision in King v. Burwell, where the Supreme Court, in a 6-3 vote led by Chief Justice Roberts, patiently dismantled the latest attempt to destroy the Affordable Care Act by those who sought to turn a law designed to improve the operation of health insurance markets into a law all but guaranteed to send those markets into what the Chief Justice rightly called a “spiral of death.”
In any other year, King v. Burwell would’ve been the Biggest Decision of the Term. But there was more to come.

Barely had the country caught its breath before the Court, the very next day, delivered its deathless affirmation of the equal dignity of all citizens: straight, gay, lesbian, bi, or trans. In a sweeping and ennobling opinion by Justice Anthony Kennedy in Obergefell v. Hodges, the Court held that “same-sex couples may exercise the fundamental right to marry in all States.”

Just hours after the Court decided Obergefell, President Obama delivered the eulogy for the slain Reverend Clementa Pinckney – a theologically and politically charged exercise, lifting up not only the nine Charleston martyrs, but their beliefs, their church, their families, their city and, indeed, the entire country.

As the President spoke, it felt for a time as though the last vestige of Charleston’s Confederate past had lost its force, was now but the dust of a bygone era. And, within minutes, every news network was reporting that Confederate Flags were being quietly but quickly removed all around the South.

That evening, for the first time, The White House was illuminated with the bright colors of the rainbow.

As I sat at home watching these events unfold, I took out my small copy of the U.S. Constitution. Its words hadn’t changed. But somehow it looked larger.

My hope is to tie the electrifying events of June together with Jackson’s eloquence and pragmatism, to arrive at a brighter and larger sense of that Constitution, a less cramped understanding of constitutional law, and a more capacious vision of the Supreme Court’s role in giving the Constitution life.

Obergefell and the Confederate flag controversies were centered on the practical impact of words and symbols, particularly when endowed with the authority of government:

What does it mean to black citizens in particular when their State flies a flag of racist rebellion from its capitol?

Or to LGBT citizens when a State refuses to dignify certain loving relationships with the label “marriage?”

And what effect does the Court have when it speaks in the name of the Constitution, reviewing the validity of political actions?

Justice Jackson was attentive to questions like these.

Let me begin by discussing yet another case, Zivotofsky v. Kerry, decided just before the Confederate Vanity Plate case and the Marriage Equality case. Apart from its intrinsic importance, Zivotofsky turns out to provide a perfect aperture through which to shine a Jacksonian light on this June’s even more dramatic decisions.

The plaintiffs in Zivotofsky were an American couple whose son Menachem was born an American citizen in Jerusalem. They sought to have their son’s passport identify him as born in Israel, just as any U.S. citizen born in Tel Aviv can do as a matter of course, or just as U.S. citizens born in Taipei, despite its contested status, can have their birthplace designated as Taiwan.

The Zivotofsky family had the Congress of the United States on their side: Congress, tilting toward Israel’s claim to exercise sovereignty over all of Jerusalem, had enacted a statute in 2002 demanding that the President give all U.S. citizens born in Jerusalem the option to have their passports stamped “ISRAEL” on the line asking for “nation of birth.”

But there was a glitch. First, President Bush, and then President Obama, refused to comply. They insisted that going along with Congress, even if only at an individual family’s request, would signal that the U.S. formally recognizes Israel’s claim to sovereignty over all of Jerusalem, a signal they and every president before them believed would wreck our capacity to play the role of honest broker in negotiating a lasting Middle East Peace. Both the Bush and the Obama administrations deemed that an unacceptable intrusion into their presidential responsibilities. They insisted that the power to decide on the territorial boundaries of a foreign nation is part of the power to recognize which government represents that nation – a power that American Presidents have long claimed belongs exclusively and inherently to the President.

The refusal to comply with the demands of the statute set up a classic clash between the two great political branches of the Federal Government: Congress and the Presidency.

Since 1952, the canonical source to consult for addressing such a clash is Justice Jacksons’ famous 1952 concurring opinion in Youngstown Sheet & Tube v. Sawyer, striking down President Truman’s seizure of the steel companies to help our troops fight in Korea. Jackson divided clashes between the executive and legislative branches into three familiar situations, and the majority and dissent in Zivotofsky went back and forth over how to apply Jackson's triptych to Menachem's situation, with the majority arguing that Congress was trying impermissibly to mess with exclusively presidential foreign policy powers, and with the dissenters equally strenuously arguing that nothing of the sort was afoot.

But had Justice Jackson been around, he would almost certainly have reminded all nine justices that they were forgetting what he had found decisive in Youngstown. There, he had focused on President Truman's attempt to deprive the owners and managers of the steel companies, without any basis in "law" – that is, without support from congressional legislation – of their property, and of their liberty to operate that property as they saw fit, within the law.

The property of the steel companies was straightforward and tangible: you could see and touch it.

The property interest that Menahem had was intangible: it was what lawyers call an "entitlement" created by a congressional promise that the U.S. would honor the request of an American child's parents that Israel be marked on his passport.

Although our law sometimes treats statutory promises like that as the basis of constitutionally protected property, it wasn't clear what that would mean for a congressional "promise" that usurped a power belonging exclusively to the president and thus might not be worth the paper it was written on.

But more than a property interest was involved in both situations. Just as the owners of the steel companies had a liberty interest in running their own businesses, the Zivotofsky family had a "liberty" interest in enabling their son to say what he and they believed was TRUE on the document without which he could not exercise his right to international travel.

That was a right closely related to the right of interstate travel that Justice Jackson, in his first concurring opinion, Edwards v. California, had treated as a privilege of U.S. citizenship.

Without having to answer the impossible question of what Justice Jackson would have done in Zivotofsky, we can certainly say that he would at least have widened the frame within which the current Court evaluated the problem.

Nine years before Youngstown, Jackson had insisted in West Virginia v. Barnette on looking closely at the impact on kids in public school of requiring them to pledge allegiance to the American flag and the Republic for which it stands. He held that government could require no child to recite that oath, whether or not the child (or the child's family) had a religious objection to that pledge.

I find it hard to believe that the author of Barnette would have let the U.S. government condition the availability of a U.S. Passport – a document indispensable to the exercise of the right to travel – on an American family's willingness to certify that their child had been born NOT in Eretz Israel, the Land of Israel, as they deeply believed he was, but in a City without a Country – especially when American families whose children are born in many other contested cities confront no such condition.

Although counsel for the Ziv0tofsky family chose to focus only on the battle between Congress and the President, I suspect that Justice Jackson, in light of Barnette – and given his searing experience in Nuremberg – would have wondered aloud whether Menachem wasn’t in effect being forced to say that he was born in no nation at all.

Indeed, Justice Kagan, who ultimately joined the Court’s majority in ruling for the President in Zivatofsky, wondered aloud whether the federal statute at issue should perhaps be viewed as a “selective vanity plate law.”

She may have meant her question facetiously because passports are serious business, but her quip helps us build a bridge to the serious issues raised in Walker v. Sons of Confederate Veterans, the selective vanity plate case from Texas that the Court handed down the morning after the terrorist slaughter at Mother Emanuel AME Church.

Mother Emanuel is the oldest of Charleston’s black churches. It was there that the parishioners and ministers welcomed the now infamous Dyllan Roof into their midst with open arms – not knowing, of course, that his website was filled with photos of him burning the America flag and brandishing the Confederate Flag along with other symbols of race hatred and calls for a return to the ante-bellum South.

In an ironic twist of fate, it was the very next morning, just minutes before the confessed assassin had been arrested without incident that the Justices handed down their decision about Confederate Flag vanity plates.

Texas happily chose not to include a Confederate Flag emblem in its menu of available license plates – and was upheld in that choice by the Supreme Court’s 5-4 vote – but the Court conspicuously left unanswered the question of whether a State is free to make the opposite choice, as a number of States have done, sending forth an army of private vehicles emblazoned not just with racist bumper stickers privately created and distributed, but with official governmental emblems of a return to the Confederacy.

Technically, that question wasn’t presented to the Court in the Walker case. But just think about it for a moment: Each State-issued and State-approved vanity plate, displaying the Confederate Flag in return for a fee paid by the driver, would effectively announce official support for refighting the Civil War, repealing the Reconstruction Amendments, and reestablishing Jim Crow. You might think that’s a stretch, but I don’t. Just try to see the message through the eyes of those to whom the Thirteenth Amendment meant emancipation, the Fourteenth meant equal citizenship, and the Fifteenth meant the right to vote. Those are the Amendments that gave our Nation what Lincoln in his Gettysburg Address called “a new birth of freedom,” the Amendments that the seceding states – the states that fought the Union over the cause of slavery – were required to ratify as a condition of readmission to the Union. To repudiate those amendments, even unintentionally or solely in the name of heritage, is to repudiate that condition. Any public official complicit in that repudiation is in effect contradicting the only oath that Article VI requires of all such officials at every level of government: an oath to support the entire Constitution.

The easy response of the dissenting Justices in Walker would have been that State-issued vanity plates all represent merely private, individual expression, not official government policy. Nobody seeing the hundreds of different vanity plates whizzing by in Texas would suppose that the Lone Star State is taking an official position against vegetarians when plates saying “Mighty Burgers” are on view, or is officially stigmatizing non-bowlers who’d rather go to work when plates saying “Rather be Bowling” are seen on the Texas highways.

But the majority Justices, led by Justice Breyer and joined by Justices Ginsburg, Sotomayor, Kagan, and Thomas, took the position that the vanity plates selected by private drivers all do represent speech by the government itself, which was why they said the First Amendment permits a State to exclude the Confederate Flag emblem from its list of available plates. So the Court’s decision could be read to leave dangling in the air a GREEN LIGHT for States to go ahead and issue those Confederate Plates after all!

I’m pretty sure that Justice Jackson, were he still around, would’ve had little patience for the rigidly doctrinaire dichotomy that left the Court in that pickle. He would likely say the plates are partly in the nature of government statements and partly in the nature of individual, private speech. And I’ll bet he would add that not all vanity plates are created equal! Many vanity plates obviously imply no official State endorsement of the message they bear. Many imply nothing official at all. But some do!

Laurence H. Tribe is Carl M. Loeb University Professor and Professor of Constitutional Law, Harvard Law School. You can reach him by e-mail at larry at tribelaw.com

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