Interpreting the Constitution

In a timely new book, The Language of Law and the Foundations of American Constitutionalism, leading constitutional scholar and leadership studies professor Gary L. McDowell takes sides in what he calls “the contemporary war for the Constitution” – the debate over whether judicial interpretation of our fundamental law should be based on an understanding of it as a “living” document or as one of fixed and permanent meaning.  

McDowell works at the intersection of law, political philosophy, history, and leadership, and draws on sources ranging from Thomas Hobbes and John Locke to Alexander Hamilton and Thomas Jefferson to Justice Joseph Story and Chief Justice John Marshall. The author or editor of 11 books, he holds the Tyler Haynes Interdisciplinary Chair of Leadership Studies, Political Science, and Law at the University of Richmond. The book is published by Cambridge University Press. A book launch event was held in Washington, D.C., in July.

In your new book you take sides in what you call "the contemporary war for the Constitution." Which side of the war are you on, and why?

Speaking of a “war for the Constitution” is meant to draw attention to the fact that there is an effort to transform our basic law by interpretation from its original meaning into an evolving law. This new idea of a “living constitution” depends not upon the original text and the intentions behind that text of those who framed and ratified it, but upon nothing more certain than the moral intuition or even the political inclinations of contemporary judges. In this war, I take the side of Founders such as Thomas Jefferson who argued that our “peculiar security” is to be found precisely in the “possession of a written constitution” and that we should “not make it a blank paper by construction.”

Why write a book on this subject? Why is this issue so important?

The issue is important because there are a great many who are more than willing to supplant the original meaning of the Constitution — what Alexander Hamilton in The Federalist called simply “the intentions of the people” — with the contemporary ideological predilections of those who happen to fill the judiciary at any given moment. Justice Benjamin Robbins Curtis, dissenting in the infamous case of Dred Scott v. Sandford perhaps put it best when he argued that when “the theoretical opinions of individuals are allowed to control [the Constitution’s] meaning, we have no longer a Constitution . . . [but] are under the government of individual men, who, for the time being, have power to declare what the Constitution is, according to their own views of what it ought to mean.” This book seeks to recover Chief Justice John Marshall’s view that the judicial search for the original meaning of the lawmaker is nothing less than “the most sacred rule of interpretation.”

You point to the Senate vote over the nomination of Judge Robert H. Bork to the Supreme Court as perhaps the first major contemporary battle in the war for the Constitution. When did ideas about judicial power first start to change, and why?

The defeat of Robert Bork was the first great battle in the contemporary war for the Constitution in that it was the first time a nominee was rejected on the basis of his adherence to a mode of interpretation — “originalism” — that had been widespread for hundreds of years. There was never any question about Bork’s legal or judicial abilities, his intellect, or his personal morality. Yet, that said, from the earliest years of the western legal tradition there has been an ongoing battle about the true nature and proper extent of judicial power.  Thomas More, for example, long before Judge Bork, summed it up clearly. “If you take away laws and leave everything free to the judges  . . . they will rule as their own nature leads and order whatever pleases them, in which case the people will in no wise be more free but worse off and in a condition of slavery, since instead of settled and certain laws they will have to submit to uncertain whims changing from day to day.” This is not a matter of the personal excesses of this judge or that. As More argued, “this is bound to happen even under the best judges.” Robert Bork and Thomas More were on the same page when it comes to what the great legal historian Sir John Baker has called simply the “evil of judicial arbitrariness.”

In many ways, this is an argument about language. What do you say to those who maintain that because of the nature of language we cannot really know the Founders' intentions?

The only reasonable response to such an assertion is that it is, at a minimum, at odds with common sense. We use language constantly with the confidence that the intentions or meanings of the writer or speaker can be known.  It is certainly true that whatever one might allege the nature of language to be, the very essence of the nature of legal language is that the meaning of a law or a constitutional provision can indeed be discovered. That is not to say that it is always easy to find that original meaning, or that there will necessarily be widespread agreement that the meaning judicially determined is the correct one; but it is to say that the very essence of law is that there is an obligation to seek that meaning or intention and to come as close to it as is humanly possible. That is why to Chief Justice Marshall such an effort was “the most sacred rule of interpretation.

You maintain that originalism has roots in both the common law tradition and in the philosophic sources of modern liberalism. Tell us more about that.

That is the core of the book’s argument, the idea that originalism is rooted not simply in the common law tradition of such figures as Sir Edward Coke or Sir William Blackstone, but also in the philosophic tradition of modern liberalism. It is seen quite clearly, for example, in the political thought of Thomas Hobbes and his concern that judges must be obliged to give voice to the intentions of the sovereign power.  John Locke further develops that idea when he argues that what ultimately separates life in a civil society from the barbarism of the state of nature is what he calls a “known and settled” law and impartial judges with power to give the meaning of that law practical effect.  The idea of Hobbes’s sovereign, of course, as filtered through Locke and his followers, becomes in the United States the sovereign people whose will is expressed in a written and ratified constitution the meaning of which is understood to be knowable.  That is why Chief Justice Marshall in the landmark case of Marbury v. Madison could say that the idea of a written constitution was nothing less than “the greatest improvement on political institutions.”

You talk quite a bit about the moral foundations of originalism. Explain what you mean by that and give an example of how you see a shift away from originalism as negatively affecting important Supreme Court rulings.

The moral foundation of the American constitutional order stems from the logic expressed by Jefferson in the Declaration of Independence, that by nature all men are created equal, that they are endowed by their creator with certain inalienable rights, and that to secure those rights governments are instituted among men “deriving their just powers from the consent of the governed.” Because all are by nature created equal, no one by nature has a right to rule another. In that sense, consent of the governed is the reciprocal of natural equality: it is only by agreement and design that governments can be imposed on the governed. The reason is the belief that arbitrary government — even if such an arbitrary government might in practice be benevolent — is the very essence of tyranny. The danger that comes from the abandonment or rejection of originalism as the primary means of constitutional interpretation is that we replace the true notion of the rule of law with the inherent arbitrariness of government by judiciary. Originalism is a means of preventing the judges, in the words of Chancellor James Kent, from roaming at large in “the trackless fields of their own imaginations.”

How does a case such as District of Columbia v. Heller on an individual’s right to possess a firearm under the Second Amendment square with your argument about originalism?  

The Heller case is in many ways a clear example of the recourse to originalism in practice. The opinion by Justice Antonin Scalia is, as you suggest, an explication of the original meaning of the Second Amendment’s provision to protect the people’s right to keep and bear arms. The question in Heller was whether the Founders had limited that right to the need to maintain a well regulated militia. By his analysis Justice Scalia concludes that the amendment’s provision of a right to keep and bear arms was not limited to the need for a militia but rather more deeply guaranteed an individual right to keep and bear arms as the individual might choose for his protection. Justice Scalia, of course, is one of the most prominent originalists on the Court and his concern has been, and likely will continue to be, to develop what he has called simply the “methodology of originalism.” It seems to me that Heller is an effort to do just that.

Yet the Court rarely leaves everyone satisfied. In one of the final decisions reached this past term, the gun-rights case of McDonald v. Chicago, the originalists on the Court who had handed down Heller abandoned their adherence to originalism. Whereas Heller dealt with the District of Cclumbia, McDonald addressed the powers of states and localities to deal with gun control issues. A strict originalist would have refused to extend the holding in Heller to the facts of the case in McDonald because to do so would demand that the provisions of the Second Amendment, which originally were intended to apply only to the national government, be "incorporated" into the due process clause of the Fourteenth Amendment and thus made applicable to the states. If anything the majority opinion in McDonald, written by Justice Samuel Alito, shows how jurisprudentially  fragile the idea of originalism has become.

How would an originalist court rule on abortion or other sensitive social issues?

As I suggested earlier, the essence of originalism is, in many ways, an adherence to the idea of self-government properly understood. Implicit in that notion is the belief that when it comes to the Constitution the Founders can be assumed to have said what they meant and meant what they said. The Constitution is a fundamental law, but a fundamental law of limited and enumerated powers. The Constitution does not empower judges to do whatever they might think society needs or what they believe to be just. The harsh truth is that not every social ill is to be met by a constitutional power.  In areas concerning divisive social issues, an originalist would argue that those issues are better resolved by the people and their political representatives in the state or possibly national legislatures. The fact is, there are good and decent people on both sides of such issues and it is by deliberation that society can work through the often slow, but legitimate effort to come to grips with what the law should be. On the issue of abortion, for example, there is evidence that on the eve of Roe v. Wade that there was a movement within many states toward more liberal policies on abortion. The Court’s well-intentioned interference with that process has produced the catastrophic politics that now surrounds that issue, with no end in sight to the acrimony.

Now, the obvious question: How does this relate to leadership studies?

This is, in a sense, a book about intellectual leadership in the highest sense. It begins with the transformation of political philosophy by the innovations of Hobbes and Locke; it continues with those who were influenced by them and by whose work their theories were developed, thinkers such as Burlamaqui, Blackstone, and Montesquieu; and it focuses primarily on the American Founders such as Jefferson, Madison, Marshall, and Hamilton and their constitutional handiwork. Ideas, at the end of the day, have consequences. Leadership is about ideas and consequences.