Notes From Babel

How to use the Constitution

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I had some points about this longish post by Jason Kuznicki about constitutional interpretation, but I’ve forgotten most of them since I read it Friday.  The last paragraph, however, seems slightly off:

The Constitution was an experiment in greater liberty — far from perfect by anyone’s lights today, but a pretty good try at the time. Its interpretation today should be guided by the original public meaning of the text… and that meaning was precisely that the boundaries of individual liberty should be expanded. Where power was granted, it was granted explicitly, because power was intended to be narrow. Where liberty was granted, it was granted widely, as with the Ninth Amendment, because we were intended to be a nation not of political power, but of individual liberty.

I’m not convinced this is true.  The Constitution reflects ideals of individual liberty, but the document itself did not unleash any significant liberties that were previously repressed.  Barron v. Baltimore reinforced this point, holding that the Fifth Amendment did not apply as against the states.  Thus, it was pretty clear to everyone that whatever freedoms the federal government was bound to respect had little to say about what the states were bound to respect.  This was by design, of course.  But when states’ rights led to some historic embarrassments, we began to see the Constitution through new lenses.  The Fourteenth Amendment and later case law sped along a re-invention of the Constitution as a Robin Hood document that wrested power from state governments and gave it to the people.

Also, one point about the whole reasonable-people-can-violently-disagree-about-everything-in-the-constitution argument.  Certainly, there are some inscrutable passages in the Constitution.  But the disagreements about how to interpret some of the big ones, like the Equal Protection Clause, for instance, stem from a basic disagreement not about what the words mean, but about how to use the Constitution.  It is well within the reach of common understanding to decipher the words “nor shall any State . . . deny to any person within its jurisdiction the equal protection of the laws.”  The straightforward purpose of that clause is to secure to all persons the same laws for the protection of property and personal security as the state has enacted for others—typically, at the time of its enactment in 1868, white citizens.  It does not guarantee equal laws, only equal protection of the laws.

Yet, because of certain embarrassments in our legal history, and because of the lackluster performance of state legislatures to remedy social evils, the Equal Protection Clause has been remade to require for more than its words stand for—i.e., a requirement of equality generally.

And this leads to a problem with libertarian views of the Fourteenth Amendment generally.  Under the constitutional theory espoused by Randy Barnett, for example, the Fourteenth Amendment is made to mean too much. In effect, Barnett would make the entire Constitution a footnote to the Fourteenth Amendment, finding in the brief 80 words of Section 1 an entire political philosophy and a new doctrine of national liberties completely trumping the old doctrine of federalism.  This strategy is not surprising: while the Constitution embraces classical liberal as well as classical republican principles, a sweeping interpretation of the Fourteenth Amendment provides much support for individualism and classical liberalism. But it hangs the whole body of constitutional law on too fine a reed.


Written by Tim Kowal

January 10, 2011 at 2:00 am

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