INTERPRETING THE U.S. CONSTITUTION

How is the U. S. Constitution
Like the Ten Commandments?


To Be Decided: April 30, 2002
By the Philosophy of Law Class
BRANDEIS UNIVERSITY




PAPER TOPIC NUMBER THREE
HONORS/CREDIT/NO-CREDIT







Drawing on the reading and your own sound reasoning and good judgment, which, if any, of the five claimants below do you believe should get $10,000.


Offer a good reason and/or argument for why you believe a given claimant's case should be decided, i.e, make a case for why you think the way you do. Propose a possible objection to your line of thought in each of the five cases and explain how you would address that objection. In working out your answer in each case, offer what you believe is a consistent position that resolves all five cases in a coherent and principled fashion.


The paper will be graded pass/fail or credit/no credit, although it will be possible to receive a grade of "honors" or "high pass" and/or "credit plus." In order to receive "honors" or a "high pass" or "credit plus," which could improve the lowest grade you received on one of the three papers by a half grade (so, for eample a "B-" (2.7) would become a "B+" (3.3), you must summarize the views of Robert Bork, John Hart Ely, and David Lyons on how the U. S. Constitution ought to be read and interpreted, adding how you believe each of them would decide the cases of the five claimants. Their views may be found in the PHILOSOPHY OF LAW book pp. 356-388: Bork's in "The Right of Privacy: The Constitution of a Constitutional Time Bomb," Ely's in "Discovering Fundamental Values" and Lyons' in "Constitutional Interpretation and Original Meaning." Your summaries should appear on separate pieces of paper for each author and should be attached to the paper proper.


The paper should be about three (3) to six (6) pages in length, or longer if you wish. Papers and summaries, if you elect to do them, are due on Tuesday, April 30th, in class.




Introduction

At a press conference on February 21, 1985, President Ronald Reagan made the following statement:


"I've found that the Bible contains an answer to just about every problem that confronts us, and I wonder sometimes why we won't recognize that that one Book could solve a lot of problems for us." (Feb. 22, 1985, The New York Times)


Now imagine that a group of concerned citizens meet, following Reagan's press conference, to consider what to do about what they describe as "the deplorable state of the moral life of the American citizen." During the course of their discussion, one person stands up and electrifies the others with the following remarks:


"President Reagan is right: the cure for all our ills is a return to good old-time religion and the clearest single expression of that religion is the Ten Commandments. Whenever I am perplexed about what I should do, I turn to the Ten Commandments for guidance. Indeed, all that is needed is for each and everyone of us to obey the Ten Commandments, and - as Reagan says - our problems will be solved."


Within minutes a plan is devised. In an effort to encourage citizens to turn to the Ten Commandments for guidance, it is decided that young people will be asked to take an oath on their twentieth birthday to "obey, protect, support, and defend the Ten Commandments" in all their actions. If a person complies with the oath for fifteen years, he or she will receive an award of $10,000 on his or her thirty-fifth birthday. The speaker, who also happens to be quite wealthy, offers to contribute $20 million to establish a fund. Another $30 million is collected. By the year 2000 the Fund will have grown with interest to $140 million. The program is launched on April 19th, 1987. Now imagine that it is the year 2002, you have been appointed sole trustee of this fund, and your most important duty is to determine whether the oath-takers have complied with their vows and are thus entitled to the $10,000. Today - Friday, April 19th, 2002, the first group of claimants comes before you:



CLAIMANT # ONE:

Samuel is a married male. Although he freely admits that he has had sexual liaisons with a number of women other than his wife during their marriage, he argues that at the time of Biblical Israel "adultery" referred only to the sexual liaisons of a married woman with a man other than her husband. Adultery was an act that only a married woman could commit. A married man could not be guilty of adultery. To support his position Samuel quotes the following passage from the article on Adultery in the First Volume of the Jewish Encyclopedia, page 314: "An extramarital relationship engaged in by a married man is not per se a crime in biblical or later Jewish law. This distinction stems from the economic aspect of Israelite marriage: The wife is the husband's possession . . and adultery constituted a violation of his exclusive right to her; the wife, as the husband's possession, had no such right to him."



Samuel has taken great care to make sure that all his sexual partners were unmarried. He claims to have been faithful to the original meaning of the Ten Commandments. However, we may understand the term, "adultery," today is irrelevant, or so he argues. He took an oath to comply with the Ten Commandments and that, he claims, is exactly what he has done. (Note: It has already been determined that Samuel as well as the other four claimants who come before you have complied with all the other commandments; the only question in each case is whether a claimant has complied with the commandment against adultery.)



Samuel also says that because no line-by-line explication of the Ten Commandments was given to him or any of the other oath-takers in 1985, whenever he became a bit uncertain about what this or that Commandment required of him, he made a conscientious attempt to research the particular issue. And, he says, he shared your (presumed) surprise at the results of his research. Indeed further study shows that all authorities agree with the authors of the Jewish Encyclopedia regarding the original meaning of the commandment against adultery. Would you give Samuel the reward?



CLAIMANT # TWO:

Rachel, who is married to Samuel's cousin, Irving, admits that she has had several extramarital affairs with other men. She notes, however, that these affairs were entered into with the prior knowledge and consent of her husband Irv. In response to the suggestion that she has violated the ancient understanding of "adultery," Rachel argues that that understanding is fatally out-of-date. Firstly, she argues that it is unfair to distinguish between the sexual rights of men and women. That the Israelites made these distinctions is no justification for our continuing to discriminate against women in this regard. We - those of us who live together in the United States today - no longer accept that such discrimination is justified. Secondly, she argues the primary reason for making the distinction between the sexual rights of men and women was the perception of the wife as the exclusive property of the husband. This notion is repugnant and has been repudiated by all reasonable persons. It is offensive to the sound conscience and sense of justice of all decent human beings, Rachel says. And thirdly, she argues, insofar as we may continue to wish to prohibit adultery, we do so because we wish to discourage deceit and the betrayal of promises of sexual fidelity. But these "factors" are not present in her case because she and Irv have "an agreement" and she has scrupulously informed him about her affairs and in each instance she has received his consent. What's your verdict? Has Rachel kept her end of the bargain?



CLAIMANT # THREE:

Henry is a participant in a polygamous marriage. He has had no sexual encounters beyond his two wives. He also points out that polygamy was clearly tolerated in both pre- and post-Sinai Israel and indeed was accepted within the Yemenite community of Jews well into the 20th century. It is also accepted in a variety of world cultures, although he admits to being aware that the Supreme Court of the United States has ruled in a number of cases that bigamous marriages are not protected by the Constitutional right to the "free exercise" of one's religion.



Although the State of Utah where Henry resides with his two wives, all members of an extremely orthodox Mormon sect, does not recognize his marriage to more than one woman and therefore, technically, his marriage to his second wife is illegal and therefore, technically, he is a bigamist "in the eyes of the law," he claims, nonetheless, that because he is married to both women, he is not guilty of adultery. According to the ancient texts in light of which the Ten Commandments were originally understood, polygamy was not ruled out, tout court, as a form of marriage and, therefore, in light of these (ancient) texts he, Henry, has kept his oath, abided by all ten of the Commandments, and deserves the reward, since he has not had sexual relations outside of marriage. What do you think? Does Henry get the award?



CLAIMANT # FOUR:

Burt is a practicing Christian who is married to Charlene. He admits that he has often lusted after other women. (Indeed, he confesses that it was only after a great deal of soul-searching that he decided not to consummate a relationship with a female co-worker whom he thinks he may "love" and with whom he has held hands.) He says he is familiar with Christ's words in Matthew 5:28: "Whosoever looketh on a woman to lust after, he hath committed adultery with her already in his heart." He suspects that he may have failed to honor his oath. He awaits your judgment.



CLAIMANT # FIVE:

George, who is Catholic, has never lusted after another woman since his marriage which was held on the same day that he took the oath. He does admit, however, to occasional lustful fantasies about his wife and just the other day, three days before the fifteen years expired, he was shocked to discover Pope John Paul II's statement that "adultery in your heart is committed not only when you look with concupiscence at a woman who is not your wife, but also if you look in the same manner at your wife." Until three days ago, George thought he had kept his end of the bargain but now he's not so sure. He "sees" what he thinks the Pope had in mind: that all lust, even that directed toward a spouse, dehumanizes and reduces the other person to an erotic object. He had been hoping to spend the money from his award as part of a down payment for a summer cottage, but now he suspects he does not deserve the award. The decision is yours.



Which, if any, of the five claimants do you believe should get the $10,000? You may wish to jot down a preliminary answer before reading further or discussing the matter with friends, family or relatives:



Claimant #1 (Samuel): ..................Yes ................No


Claimant #2 (Rachel): ..................Yes ................No


Claimant #3 (Henry): ..................Yes ................No


Claimant #4 (Burt):. ..................Yes ................No


Claimant #5 (George): ..................Yes ................No



Any answer to the question which claimants are entitled to receive the $10,000 award will hinge, of course, on how the Seventh Commandment is to be interpreted. Should it be interpreted in light of its original understanding or in light of the way most Americans would understand it today? And if the latter is the case, which of several possible interpretations should count? Is George, for instance, putting too fine a reading on the meaning of the word "adultery?" The difficulty of coming up with a satisfactory answer to these questions is not so unlike the difficulties that a Supreme Court Justice faces trying to determine whether a particular law or policy is or is not within the bounds of the U. S. Constitution. Moses did not deliver the Commandments with accompanying footnotes or an appendix, explaining in greater depth and detail how key terms might best be understood. The same can be said of the U. S. Constitution. Each of us has the right of "free speech," but little more is said in the document itself about what this right entails or what legislation it forbids. In this respect, the U. S. Constitution is like the Ten Commandments. Both are equally taciturn about their contents.



So how ought the Seventh Commandment be best interpreted in each of the five cases? In light of the claimant's own religion? In light of Reagan's view since he, after all, prompted this entire business in the first place? In light of the judge's religious beliefs and opinions? You're the judge, remember. What would be fair and just? Indeed your job trying to sort out the meaning and significance of the Seventh Commandment may be more difficult than that of a Supreme Court Justice trying to make head or tail of a complex "free speech" or "right to privacy" case. I am sure you recognize that these "complications," are not without irony since Reagan thought life would be so much simpler if each of us just "turned" to the Bible.



How then is the Constitution like the Ten Commandments and how seriously should judges take the original intent of those who drafted it in the summer of 1787 in Philadelphia? Might a better understanding of the role of original intent in the drafting the Constitution be of any help in your unenviable task of deciding which of the Five Claimants is entitled to the $10,000?



The Bicentennial

During the year of the bicentennial of the U. S. Constitution, many celebrations were held throughout the United States, not only in Philadelphia where the Framers met from May to September in the summer of 1787, but in many American cities, large and small. The point of these celebrations was not just to recall a moment in the nation's past but to educate the public about the meaning and value of the Constitution. None of these events, however, served the latter purpose so well as two wholly unanticipated events: the Iran-Contra hearings and the Senate Judiciary Committee Hearings on President Reagan's nomination of Judge Robert Bork to the Supreme Court. In both instances national telecasts provided Americans with a civic education. They now have a far greater understanding of the Constitution than they could have gained from a dozen or more bicentennial events.



Judge Bork had a definite opinion about constitutional interpretation stressing the necessity, as he put it in an American Enterprise Institute lecture in 1984, "to establish the proposition that the Framers intentions with respect to Freedoms are the sole legitimate premise from which constitutional analysis may proceed." In 1982 he objected to the use of the equal protection clause of the 14th Amendment "to protect groups that were historically not intended to be protected by that clause," and he criticized the Supreme Court's efforts to extend the application of the equal protection clause to women, arguing that it was originally intended only to apply to racial discrimination. Does Bork's opinion echo Samuel's and Henry's views on how the Seventh Commandment is to be understood?



Interpreting the Constitution

The Constitution is open to interpretation, after all, it does not wear its meaning on its face, but the Constitution is not subjected to interpretation, it is subjected to interpretation again and again. The series of commentaries it has generated rival the voluminous studies on the Bible and the Talmud as well as those on the most commented upon of all texts, the plays of William Shakespeare. Although we might wonder how the Constitution means, an equally intriguing, and not unrelated question is: how is it that the Constitution can go on meaning and meaning and meaning?



A much vaunted and regularly practised feature of judicial review is to ask after the Framers' intent. This would appear to be Judge Bork's view of the matter. Thus, in Furman v. Georgia, a decision before the Supreme Court in which the majority took the position that in all the states whose systems were under review capital punishment was unconstitutional, Justice Blackmun argued in dissent, that while he himself believed that "capital punishment serves no useful purpose" and " is not compatible with his philosophical convictions" and "is antagonistic to any sense of a reverence for life," it is evident from even a superficial reading of the text that as far as the Framers were concerned "capital punishment was not unconstitutional per se under the Eighth Amendment."



In an interview in the Judicial Notice (Nov/Dec 1985) Robert Bork echoed Blackmun's opinion:


The death penalty is specifically referred
to, and is assumed to be an available penalty, in
the Constitution itself. In the Fifth Amendment
and in the l4th Amendment. . . . It is a little hard to
understand how a penalty that the framers explicitly
assumed to be available, can somehow become unavailable
because of the very Constitution the framers wrote.


Asking about the Framers' intent is, of course, not the only way to interpret the Constitution. Indeed it is possible to identify five, although not always completely distinct, ways the Constitution has been interpreted during the history of judicial review:



1. Arguments about Framers' Intent.
2. Arguments from text, taking the plain language of
the text and offering an interpretation of what it meant as
opposed to inquiring what the Framers meant by it.
3. Arguments from Constitutional theory, giving an
account of the values and purposes of the Constitution as
a whole in light of which the interpretation of a clause
can be seen to make most sense.
4. Arguments from precedent.
5. Arguments from shared values of the community,
against which the Constitution can be seen to be intelligible
and without the background of which it would lose much of its point.



Now I do not want to explore each of these interpretive ploys; rather I want to look more closely at the first and to suggest that in the instance of the Constitution at least, the authors constructed it in such a way that their original intentions would not be determinative of its meaning. Moves to uncover the original intention of the authors are frequently frustrated, therefore, not because of a lack of ingenuity on the part of a judge, but because the Framers drafted the text in such a way as to leave little trace of their concrete proposals or substantive intentions. This feature of its construction is, in part, what makes the Constitution so special and enduring; and how it has come to have so many readers. It's also a feature it shares with the Ten Commandments.



Moses and the Delegates to the Philadelphia Convention in 1787

Constitution writing was not a practice invented by the delegates to the Convention in Philadelphia. There were precedents for what they did. There was the Magna Carta and the Mayflower Compact and, in their own century, the example of Rousseau, who drafted Constitutions for both Poland and Corsica. Constitutions now are almost as common as governments. What is unique, however, about the American Constitution and what distinguishes it from its European counterparts is that it was, in Thomas Paine's famous - definition, "not the act of a government, but of a people constituting a government."



Besides celebrating the harvest season, Shavuot commemorates the receiving of the Ten Commandments at Mount Sinai. This occasion is also referred to as the "Season of the Giving of Our Law," a time that also played no small role in the constituting of a people, in this case, the people of Israel. On the sixth day of Sivan, the people were awakened at the foot of Mt. Sinai by lightening and thunder. Across the desert there echoed the sounds of the Shofar and the earth trembled. And then the Israelites heard the voice of G-d directly:





Moses then climbed Mt. Sinai and came back down with the Tablets that contained the Ten Commandments. No footnotes. No commentary. No definitions. As far as we know, no one talked back to G-d at that moment. No one looked up and asked "What do you mean by 'honor'?" or "What do you mean by 'covet' or 'false witness' or 'adultery'?" And had such questions been asked, there is no evidence that G-d would have answered back. What are we to make of this?



Although there was a form to Constitution writing, the delegates in Philadelphia do not appear to have been constrained by it. The Framers stood at some distance from their work and although they appended their signatures and their presence can be felt, their personalities are curiously absent.



It is a somewhat out-dated practice in the theater to cry "Author! Author!" after the curtain has fallen on the performance of a new play. The authors of the Constitution have long since retired from the field but their absence from the text was apparently prepared from the beginning. There are a number of principles of composition adopted by the Framers that make this answer not only tempting but plausible.



At the outset the Framers made it possible for the Constitution to be open to change, and they did this by making room for amendments. This feature of the Constitution, in turn, opens the way for a kind of continuous constitution-making. Further, the Framers chose language which in its generality and simplicity leaves open how some of the key terms and phrases in the document are to be interpreted. In other words, there is textual evidence that would seem to indicate that the Framers did not wish their concrete intentions to guide our interpretations. If they had truly wanted us to be guided by what they specifically had in mind by justice, cruel and unusual, right and wrong, as Ronald Dworkin has pointed out, they would not have used such general language, but offered more evidence of their own conceptions, not in great detail necessarily, but they would have done more than name the concepts themselves.



No doubt the drafters of the Fourteenth Amendment would have been surprised to learn that the Court, many years later, found separate-but-equal education to be in violation of the Equal Protection Clause as no doubt they would have been by some of the recent affirmative action cases, but the wording of the Constitution and of the Amendments, strongly implies that the Framers, like Pushkin, would have been open to the unexpected.



It is harder to say with great confidence, of course, where G-d might stand in relation to his own words in the Ten Commandments. It is apparent, however, that, like the delegates to the Convention in Philadelphia in 1787, he has, over the years, given those who might wish to follow in Moses' footsteps very little guidance other than leave us with the words themselves.



Committee Work

Comparing the Constitution to the Ten Commandments, may not, however, be altogether apt insofar as the Constitution is the draft of a group of people, a committee, rather than the work of a single author. This group of people working through the summer of 1787, from May to September, had to overcome certain problems that no author, working alone, and certainly not G-d, would have had to face. The delegates at the Convention were seriously divided over a number of issues, over slavery, and over what power to give the states and the federal government and how to balance the powers among them. It is astonishing that the session did not degenerate into a series of nagging arguments and counter-arguments, that the group was able to produce an enduring document, in light of what many of us know about the work of most committees, the results of which rarely last so long.



Paine, Jefferson, and Franklin produced writing of their own and with no small success. Paine's Common Sense, Jefferson's Notes on the State of Virginia, and Franklin's Autobiography all drew their strength and their authority from the singularity of the voices that address the reader. In each instance there was no immediate need to consult colleague or friend to gain their assent about the wording of this or that before putting pen to paper. Each was free to speak his mind, and although I do not want to make it appear as if such a thing is too simple, speaking their minds, they hoped to command a kind of ex post facto assent, to arouse their readers and rally them to their opinions.



Constitution-making required a different strategy and a different set of rhetorical conventions. Indeed what was required was the suppression of a manner of speaking and a style of writing at which the Framers, taken individually, were most adept.



Benjamin Franklin's Imprimatur

Although those who attended the Convention were interested in matters of great substance, they had a single, overriding concern in unanimity. One member, above everyone else, took it upon himself to remind the others of the important task of reaching agreement. This was Benjamin Franklin, who urged the Convention "to face the world as one body in either [their] 'real or apparent unanimity.'" Highly sensitive to the differences of opinion, the cacophony of voices, he stressed, time and again, the need for consensus through "joint-wisdom." Inspite of his luminous experience with prose writing, he never submitted a draft to the Convention. Yet, singularly absent from the text, he, more than anyone, left his imprint on the final document.



One way, indeed a key way, for a number of people to arrive at agreement is to be silent on certain matters. Franklin understood the virtue of silence. It was the second of his thirteen enumerated virtues. Brought before the Privy Council of Parliament as a colonial agent in 1774, he stood "motionless and silent, enduring the wrath and invective of the king's ministers for more than an hour without change of expression or reply." Noticing how Franklin and Washington conducted themselves at public meetings, Jefferson wrote: "I never heard either of them speak ten minutes at a time," and he distinguished their public demeanor from "the singular disposition of men to quarrel." Their examples, John Adams wrote later, "are enough to shew that Silence and Reserve in public are more efficient than Argumentation or Oratory."



The Constitution and the Ten Commandments show signs of a similar restraint. In the case of the U. S. Constitution, slavery was guaranteed but the text itself is silent on the matter. In creating a national federal republic, the Framers do not mention the words "national," "federal," or "republic." The first pseudonym Franklin applied to himself was Silence Dogood, and it might serve as epitaph for the Constitution itself, which is marked as much by what the Framers left out as by what they put in.



An Allegory of Constitution-making

During the summer of 1787 the various drafts underwent numerous revisions. Unanimity required that words be changed or crossed out, consensus was reached primarily by a process of distillation, reduction, and removal. When all was said and done, "just five thousand words within a one-sentence preamble and seven brief articles" remained. This process of correction and condensation may have prompted Franklin to refrain from submitting a draft. To an author who values his words it must be an anxiety-producing and humbling experience to submit his prose, not just to an editor, but to a whole committee of editors, each with his own stake in the outcome. Franklin's self-consciousness of himself as a writer may indeed best explain why he in fact, "made it a rule," as he already confessed in 1782, "whenever in my power, to avoid becoming the draughtsman [sic] of papers to be reviewed by a public body. Jefferson did not exhibit the same self-knowledge and when he complained to Franklin during the course of the debate over the Declaration of Independence against the "degradations" and "mutilations' of his draft, Franklin was reminded of an incident, from which he said he "took [his] lesson," and which is, by itself, an allegory of constitution-making:


When I was a journeyman printer, one of my companions, an apprentice Hatter, having served out his time, was about to open shop for himself. His first concern was to have a handsome signboard, with a proper inscription. He composed it in these words, "John Thompson, Hatter, makes and sells hats for ready money" with a figure of a hat subjoined; but he thought he would submit it to his friends for their amendments. The first he showed it to thought the word "Hatter" tautologous, because followed by the words "makes hats" which show he was a hatter. lt was struck out. The next observed that the word "makes" might as well be omitted, because his customers would not care who made the hats . . . . He struck it out. A third said he thought the words "for ready money" were useless, as it was not the custom of the place to sell on credit .


[The words] were parted with, and the inscription now stood "John Thompson sells hats" "Sells hats," says his next friend. Why nobody will expect you to give them away, what then is the use of that word. It was stricken out, and "hats" followed it, the rather as there was one painted on the board. So the inscription was reduced ultimately to "John Thompson" with the figure a hat subjoined.



Here the practical business of framing a constitution is neatly and figuratively conveyed. Eager to gain his friends' agreement, the hatter submits his copy to them for their "corrections" and "emendations," only to be left with his name and the symbol of a hat. The Constitution is as much sign as text and to it the Framers append their signatures. With the brevity and numerology of its articles, the authors have made it " short enough to be taken in at a glance," as if they saw their task as much as an advertisement for the new nation they were founding as anything else.



Franklin's tale amusingly captures the problems of drafting a text at a convention where the desire for consensus was paramount. Franklin himself submitted no draft, but, like the hatter's friends, he made corrections. In drafting the Constitution, the difficult job of extracting agreement was accomplished by a process of reduction and removal. Also at the convention itself there were rules of silence. No member was to speak more than twice on any topic, and after he had spoken, he had to wait for all the others to speak, if they so chose, before he spoke again, and during the interval he had to remain silent. Silence is the vital source of a consensual politics and of its greatest document.



Whose Intent Was It Anyway?

It is one thing, of course, to claim that in seeking agreement the Framers used language that was open-textured and another that they themselves did not think their intentions should play a significant role in the interpretive process. It is tempting, in fact, to think that at precisely those points where the texts meaning is open to doubt, we ought to turn to what they originally had in mind.



It is, therefore, a matter of some significance that the Framers decided on the last day of the Convention (September 17, 1787) not to publish any record of their deliberations. They decided instead to entrust all papers to Convention President George Washington. Throughout the summer too there was a strict code of secrecy, a "gag" rule on all those in attendance. No one was to mention a word about the proceedings to anyone outside the Convention. If we expect arguments about Framers' intent to bring the meaning of the Constitution more explicitly to light, the Framers themselves were certainly quite resourceful in making it very difficult, if not impossible, for us to recover their intentions. James Madison, who kept the most extensive notes during the course of the Convention, also refused to publish his journal until after his death


or, at least, . . . till the Constitution should be well settled by practice, and till a knowledge of the controversial part of the proceedings of its framers could be turned to no improper account . As a guide in expounding and applying the provisions of the Constitution, the debates and incidental decisions of the Convention can have no authoritative character.


Here from one of the authors of the Constitution we have direct evidence that the Framers themselves tried to block access to their deliberations in part because they did not wish their original intent to play an "authoritative" role in subsequent efforts to interpret the meaning of the text. I believe there are at least two reasons for them to have held this view.



The Philadelphia Convention had not been authorized to draft a new constitution: rather it was to amend the Articles of Confederation. Anti-Federalists later made much of this lack of authority in their attack on the Constitution, as they did of the indeterminate language of the text, arguing that the vague language not only left it too open, to Congress and the Court, to interpret the document as they wished, but also might well have been a surreptitious attempt to slip in under the cover of generalizations the intentions of the Framers "to abolish entirely the state governments, and to melt down the states into one entire government."



Against the Anti-Federalist charge that the delegates in Philadelphia had overstepped their bounds and tried to establish a constitution, Madison replied in The Federalist No. 40 that the delegates' powers were "merely advisory and recommendatory."



At the first North Carolina Convention Archibald Maclaine reiterated Madison's point: "The Constitution is only a mere proposal . . . . If the people approve of it, it becomes their act." Their original intentions were not relevant, the Federalists argued, because they had only drafted a document to be endorsed by a people. If intentions were to play a role in the interpretation of the text, they would have to be the intentions of those who accepted the Constitution, not those who wrote it.



Imagine a group of writers hired by a card company, by Hallmark, say, to draft a line of greeting cards. Here it would be misplaced to interpret the meaning of any given card by asking what the makers of the card had in mind when they drafted it. What the authors had in mind matters little compared to what a person has in mind who actually makes use of (sends), say, one of their "Get Well" cards. The completed draft is, in Madison's words for the draft of Constitution, "a dead letter" until it is animated by a customer's desire to wish someone well.



By beginning the document with "We the People" the Framers had not wished to claim a greater authority for their words or to be speaking on behalf of persons not present at the Convention in Philadelphia. They were "mere scriveners or attorneys appointed to draw up an instrument." The import of the document would have to await its true animus, "it true makers," the people of the United States represented through the state conventions.



As a representative in the first Congress, Madison continued to hold the view that the delegates to the Convention were "merely drafters":


But, after all, whatever veneration might be entertained for the body of men who formed our Constitution, the sense of that body could never be regarded as the oracular guide in expounding them, it was nothing more than the draft of a plan, nothing but a dead letter, until life and validity were breathed into it by the voice of the people, speaking through the several State Conventions.


It could not have been clearer to Madison that whatever understanding members of the Philadelphia Convention shared about this or that passage of the Constitution, that understanding "could never be regarded as [a] . . .guide" in an effort to make sense of it. The original intent of the Framers ought not to engage us because the document they drafted was, quite frankly, not theirs. If intentions are to count for something, they must be the intentions of the people who approved it, not the intentions of those who proposed it.



This conclusion has real consequences for arguments about original intent. If there are problems with an attempt to recover the intentions of small group of authors, meeting together in the summer of 1787, those problems are now compounded by the practical difficulties of trying to figure out what went through the minds of the representatives who attended the various state conventions. These problems aside, however, it is necessary to note that, having shifted attention away from the understanding of the document shared by those in Philadelphia to the understanding of those who eventually adopted it, Madison did not let the matter rest. He went on to stress that the meaning of the Constitution was determined by an interpretive process that continued long after the Philadelphia and State Conventions had closed their doors.



Now or Then?

In one of the first lengthy discussions in Congress over how to resolve ambiguities of the Constitution, the debate in the House over the resolution calling upon President Washington to hand over the record of Chief Justice John Jay's treaty negotiations with Great Britain, Edward Livingston of New York, who introduced the resolution, argued that original intent could not be "conclusive... because...we are now as capable at least of determining the true meaning of that instrument as the Conventions were: they were called in haste, they were heated by party, and many adopted [the Constitution] from expediency.' When William Vans Murray of Maryland expressed his belief that where there were "doubts upon some of the plainest passages" of the Constitution it was the duty of a person "known to have been in the illustrious body that framed the instrument [to] clear up difficulties by [communicating] his contemporaneous knowledge," Albert Gallatin of Pennsylvania said he was surprised to hear a view that "the opinions and constructions of those persons who had framed and proposed the Constitution, opinions given in private, constructions unknown to the people when they adopted the instrument, should, after a lapse of eight years, be appealed to." Vans Murray wondered nonetheless why someone who had been present at the Convention did not speak up and share the understanding prevalent then with those now in the House. He had James Madison in mind in particular. Vans Murray's speech, however, caused Madison "some surprise," saying that his or anyone else's personal impressions of "the intention of the whole body" were not likely to amount to much and "were likely in any case to conflict." But Madison's own views on this matter went beyond his recognition of the problems of historiography or of trying to ascertain the intentions of the Framers as a single body. Some years later he confided to a friend that he was concerned that his awareness of what went on at the Philadelphia and Virginia Conventions might even be a "source of 'bias' in his constitutional interpretations."



As President, Madison signed the Second Bank Bill into law even though as a representative in the First Congress he opposed the bill because he believed Congress had no constitutional right to establish a national bank. But although he had voted against the First Bank Bill, by the time he was required to sign the Second Bank Bill as President of the United States, he recognized that "Congress, the President, the Supreme Court, and (most importantly, by failing to use their amending power) the American people had for two decades accepted the existence and made use of the services of the First Bank," and he viewed this widespread acceptance as "a construction put on the Constitution by the nation, which, having made it, had the supreme right to declare its meaning."



It had long been Madison's view that "precedents - at least those derived from 'authoritative, deliberate, and continued decisions' - served to 'fix the interpretation of a law.'" In defense of the open-language of the Constitution and in response to the Anti-Federalist charge of obscurity, he already acknowledged in The Federalist No. 37 that "all new laws, though penned with the greatest technical skill, and passed on the fullest and most mature deliberation, are considered as more or less obscure and equivocal, until their meaning be liquidated and ascertained by a series of particular discussions and adjudications." The meaning of the Constitution was to be found in a continuing process of interpretation and not in some specific set of intentions injected into the text at its inception. In fact, Madison was convinced that this was the predominant view held by those who attended the Philadelphia Convention:


It could not but happen, and was foreseen at the birth of the Constitution, that difficulties and differences of opinion might occasionally arise in expounding terms and phrases necessarily used in such a charter . . . and that it might require a regular course of practice to liquidate and settle the meaning of some of them.





The Chain of Interpretations

So where might the Constitution's meaning be found? To look to the Framers' intentions is misplaced not only because the document contains evidence that its authors did not wish their specific intentions to fix the meaning of the text but because the authors held a theory of interpretation that made their intentions obsolete. They had been "mere scriveners," and insofar as the meaning of a key phrase or article remained uncertain that meaning should not be settled by retrospective consultation of their intentions but by an ongoing interpretive process. The Constitution's meaning is to be found in the history of interpretations and constitutional law rather than what the Framers originally had in mind.



The Framers' first words were suggestive but not definitive. And there is no last word. Interpretation of the Constitution is an open-ended and continuing process. Those whom we have designated its "official" readers, the members of the Supreme Court, are not only called upon to interpret what has come before, to get the gist of what judges in the past have said, but must also rise from the reader's chair to preside as authors of opinions that imaginatively project a coherent sequel while pulling together the strands of past opinion. Judges must read the history of interpretations critically to proceed creatively.



A member of the Court is in a position not so unlike that of Henry James who was asked in l908 to contribute a chapter to a collaborative novel by twelve authors. The project was organized by Harper's Bazaar and serialized in the magazine before its publication as a single volume. Each author was assigned his or her own chapter; proofs of all succeeding chapters were sent to all contributors. Authors had to take into account the progress of the novel up to their point of entry into the creative process and give some thought to how it might continue. William Dean Howells wrote the first chapter, felicitously titled "The Father,'' and was followed by Mary Freeman, who wrote, after submitting her chapter, "I began to realize that I must start some action . . . and at the same time not diverge from Mr. Howell's character descriptions." James' contribution came near the middle of the book and although by the time it had come to be his turn and a good half of the novel was already in place and he knew he was not absolutely free to write as he pleased, he was "interested" and "amused" by what he saw as his task of taking the chapters his predecessors had written and "making them mean something, giving them sense, direction, and form."



Sitting on the bench of the Supreme Court and having to decide a rather difficult constitutional case is, as Ronald Dworkin has recently noted, "rather like this strange literary exercise":



Each judge is then like a novelist in the chain. He or she must read through what other judges in the past have written not only to discover what these judges have said, or their state of mind when they said it, but to reach an opinion about what these judges have collectively done, in the way that each of our novelists formed an opinion about the collective novel so far written. Any judge forced to decide will find, if he looks in the appropriate books, records of many arguably similar cases decided over decades or even cen- turies past by many other judges of different styles and judicial and political philosophies, in periods of different orthodoxies of procedure and judicial convention. Each judge must regard himself, in deciding the new case before him, as a partner in a complex chain enterprise of which these innumerable decisions, structures, connections, and practices are the history; it is his job to continue that history into the future through what he does on the day.



The Constitution and Constitutional Law

In October 1986, Attorney General Edwin Meese spoke at Tulane University, where he made a distinction between the Constitution and Constitutional law. To distinguish them is necessary, he argued; to confuse them is to court anarchy. "The Constitution," he opined, "is - to put it simply but, one hopes, not too simplistically - the Constitution . . . Constitutional law, on the other hand, is that body of law which has resulted from the Supreme Court's adjudications. The point of Meese's distinction, as Gerald Frug of Harvard Law School has pointed out, "is that only the Constitution, not the decision of the Court, is the Supreme Law of the land." Meese's view of the Constitution betrays a resemblance to Reagan's somewhat simplistic and wistful view of the Bible. Both seem to think that these texts merely need to be read to be understood without interpretation.



But by insisting upon a distinction between the Constitution and Constitutional law, the Attorney General offered an opinion that is impossible to sustain not because of any failure in our powers of refinement but because the Constitution is to be found in constitutional law. This is less a confusion than the nature of the enterprise. To confuse the Constitution with Constitutional law, we would have to be able to identify its meaning apart from the history of its interpretations, including the constructions placed upon it by the people through their state conventions. But this cannot be done, and it cannot, not only because the drafters of the Constitution took steps to block efforts to recover their original intent, but because they expected the meaning of key clauses only to be settled by future "authoritative decisions" and "judicial determinations."



Holding Onto the Constitution

During the course of his speech the Attorney General insisted several times that we "hold onto the Constitution." I have argued that all we have to hold onto is Constitutional law and the history of our interpretations. If a firm grip on something is what we are after, my answer may not be much of a consolation; after all the history of our interpretations is constantly shifting. But if holding onto something is what we want, it may be our only alternative.



It's an option that is anticipated by Jefferson's famous words, "We hold these truths to be self-evident." I have often puzzled over these words at the opening of the Declaration. If the truths contained in the document are indeed self-evident, why did Jefferson say that he and the others who add their signatures "hold" them as well. Self-evident truths, it would seem, do not stand in need of holding. Jefferson only made matters more puzzling, writing as he did in the preamble to the Virginia Bill for Establishing Religious Freedom that self-evident truths are "the opinions and beliefs [which] depend not on men's own will, but follow involuntarily the evidence proposed to their minds." So they bind us; they hold us. Yet, Jefferson said, we hold them.



There may be no satisfactory way out of this paradox, but there is no doubt that Jefferson saw the need to embrace both the "self-evidence" and the "holding." Of course, therein lies the paradox. "Self-evidence" suggests a passive relation to the truth that needs no agreement, requires no argument, that is absolute and settled, once and for all; whereas "holding" these truths suggests an active relation that presupposes agreement, and that is relative and changing.



"Self-evidence" aside, the words we hold" announced to all the world that the signatories wished to make these truths their own. Paradoxical as it may be, Jefferson seemed to say that these truths will not bind unless we also adopt them as our own opinions. By the same token his words instruct future generations: the Constitution cannot bind unless we re-enact the original commitment. The art of a judicious reading of the Constitution is both a re-enactment of the original commitment as well as an appropriation.



Upon completion of his, the first chapter, of the collaborative chain novel, somewhat ambitiously although perhaps not too infelicitously titled, The Whole Family, William Dean Howells asked the editor to convey to each author that "it is not expected that he or she shall conform rigidly to my conceptions of the several chapters." By the time Henry James' turn came around he was speaking of "making [these conceptions] mean something," and of "giving them sense."



The Court in Brown vs. Board of Education (l954) was not able to correspond, as was James, with the authors of the conceptions with which they had to work, with either the authors of the Fourteenth Amendment (l866) or the Founders themselves (l787), and yet it took the conception of "equality," and, to borrow James' phrase "made it mean something."



The Attorney General, of course, would have wanted the Court to "stick," simply, to the Constitution, a piece of advice that would have been, if not unintelligible, impossible to follow. If we are made nervous by the fact that we have only our interpretations to hold onto, we ought to recognize at least that our nervousness is an anxiety from which the delegates of the Philadelphia Convention in 1787 themselves did not intend us to be too easily relieved.



The Five Claimants - Again

We have come full circle. What is your decision?



To complicate matters a bit as far as the original understanding of the Commandments is concerned, there is, within Judaism, for instance, the long-standing practice of "Takkanoth," extensions of Torah Law and the Law of Moses as set out in the first five books of the Bible, that focus on such diverse matters as "education of the young" and "ketubah" or a bride's marriage contract to give her financial protection in the event of divorce or her husband's death. In the 11th century a "Takkanah" against polygamy was issued by Rabbi Gershom ben Judah. If this "takkanah" is taken seriously, that may weaken Henry's (Claimant # Three's) case. But then Henry is not Jewish. Nor is Ronald Reagan for that matter.



So how ought the Seventh Commandment be best interpreted in each of the five cases? In light of the claimant's own religion? In light of Reagan's view since he, after all, prompted this entire business in the first place? In light of the judge's religious beliefs and opinions? You're the judge, remember. What would be fair and just? Indeed your job trying to sort out the meaning and significance of the Seventh Commandment may be more difficult than that of a Supreme Court Justice trying to make head or tail of a complex "free speech" or "right to privacy" case. I am sure you recognize that these "complications," are not without irony since Reagan thought life would be so much simpler if each of us just "turned" to the Bible.



The notion of original understanding vis-a-vis the Ten Commandments is complicated further by the problems of dating. The U. S. Constitution was drafted in the summer of 1787. This much we know and of this we are certain. And although the delegates were under a self-imposed "gag rule" at the time and Madison decided not to publish his"notes," we do know that the text was written at that time. The Ten Commandments are less easily dated or rather there is some debate about when they "came down."



As has been noted "Some scholars propose a date between the 16th and 13th centuries Before the Common Era because Exodus and Deuteronomy connect the Ten Commandments with Moses and the Sinai Covenant between Yahweh and Israel." But for those "who regard the Ten Commandments as an epitome of prophetic teachings, the date would be some time after Amos and Hosea" (i.e., some time after 750 Before the Common Era). And "If the Ten Commandments are simply a summary of the legal and priestly traditions of Israel, they belong to an even later period." As a result of the difficulties pinpointing and the disagreements over the exact date of the Ten Commandments' reception, you may wonder whether a reading, such as that offered by Samuel, Claimant # One, can be taken as anything close to the "original understanding" of the Seventh Commandment since the Jewish Encyclopaedia's entry is already an interpretation of customary practices not directly timed to Moses' descent from Mt. Sinai.



And to complicate matters further still, we do not have ready access to the Author's diaries and letters as we are able to read the diaries and letters of Jefferson and Madison, both of whom participated in the actual drafting of the Constitution.



And if G-d took notes, he, like Madison, does not seem to have been in a publishing mood. It is, in fact, more likely that G-d just spoke out of the wind and the clouds. No notes. No first and second drafts. No "beating around the bush." The Commandments probably just sprang from H-s Mind. And like Jefferson of the Declaration, He probably believed, if He even thought about such things, that their meaning was self-evident or transparently clear to any person who had faith.



The meaning of the U. S. Constitution would appear to lie in the process of judicial review and the history of subsequent adjudications, in, as it were, the Supreme Judicial commentaries. In the end Madison was of the opinion that it was less important what he believed the document meant, even though he was "in" on its creation, than what we, the American people, came to think and believe it meant.



But what about the Ten Commandments? Where is their meaning to be found? Is something like Madison's understanding of the meaning of the Constitution also true of the meaning of the Ten Commandments?



The decision is yours. Which, if any, of the five claimants should, in your reasoned and considered judgment, receive the $10,000?



Claimant #1 (Samuel): ..................Yes ................No


Claimant #2 (Rachel): ..................Yes ................No


Claimant #3 (Henry): ..................Yes ................No


Claimant #4 (Burt):. ..................Yes ................No


Claimant #5 (George): ..................Yes ................No




GOOD LUCK!






Prepared: April 18, 2002 - 5:02:29 PM
Edited and Updated, April 19, 2002


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