Centennial Review

Principled Ideas from the Centennial Institute Volume 3, Number 10 October 2011 Publisher, William L. Armstrong Editor, John Andrews

THE CONSTITUTION MEANS WHAT IT SAYS

By Bradley A. Smith
Each Fourth of July we celebrate our nations Declaration of Independence with fireworks, parades, and celebrations. It is appropriate that we do so, for perhaps no secular document has inspired so many people around the world, and no nation has done as much for the cause of human freedom as that which was born in July of 1776. But the Declaration, while proclaiming a new nation and its aspirations, did not actually create a system for governing that nation. And we know that the first system that was created for that nation, the Articles of Confederation, was considered a failure. It was the Constitution of 1787 that established what has been a permanent governing framework for the United States. It is Beacon of Freedom It is this document that has provided the basic governing structure of our nation as we have risen from an underdeveloped backwater of civilization to become the driving force of the world economy and a beacon of freedom the world over. With only minor changes to its basic structure, many of those (the Bill of Rights) enacted shortly after the basic document was passed, it has seen us through prosperity and recession, through two world wars, through the burning of our capital in the War of 1812, and through a momentous civil war.

the pursuit of happinessall men are created equal endowed with certain inalienable rightsbut it did not create a government to pursue them. The Constitution was adopted to make those dreams a reality. Thus, how we interpret the Constitution is vital to our civic life and the shape of our nation. Bickel was Wrong It is popular in many circles to suggest that the Constitution is a living document that changes with the times to reflect our contemporary understanding social goals. This view is illustrated by the noted constitutional theorist Alexander Bickel of Yale Law School, who wrote in 1962 that judicial review is the principled process of enunciating and applying certain enduring values of our society. But in fact, unlike the Declaration or the Gettysburg Address, the Constitution is not a statement that enunciates values, such as all created equal, or government of the people, by the people, and for the people. Nor does it ask judges to enunciate values. Rather, it is an effort to bring certain implicit values to life through a particular system of government. not This governmental structure does indeed reflect some specific values, although the particular values are often debated. But it is not an openended invitation to future policy makers to take whatever action seems to them appropriate to advance what is, in their opinion, an enduring value of our society. In fact, it is because values can change dramatically over time (for example, opposition to slavery, nigh universal today, was hardly so in 1790), and because there will always be disagreement on many values and policies, that it is particularly important to recognize the structural and procedural limitations of the Constitution and the process it has created for governing our society.
Bradley A. Smith (J.D., Harvard Law School) was formerly chairman of the Federal Election Commission. He is now president of the Center for Competitive Politics, a professor at Capital University School of Law, and the author of Unfree Speech: The Folly of Campaign Finance Reform. This essay is adapted from his lecture at Colorado Christian University on March 18, 2011. Centennial Institute sponsors research, events, and publications to enhance public understanding of the most important issues facing our state and nation. By proclaiming Truth, we aim to foster faith, family, and freedom, teach citizenship, and renew the spirit of 1776.

an ink blot for values.

I intentionally draw a contrast between the Constitution and the Declaration or other great American aspirational documents (such as the Gettysburg Address), because when interpreting the Constitution we should recognize that it was intended to serve a very different purpose than the Declaration of Independence. The Declaration was a political document intended to attract foreign support for the American rebellion, and to stiffen the spines and build the enthusiasm of the local population. It set forth the goals and dreams of Americalife, liberty, and

style of interpretation, sometimes called formalism, is widely scorned in legal circles. This theory of interpretation, which takes the Constitution seriously as a blueprint for a working government, does not suggest that there is no need to interpret the Constitution or that all constitutional disputes have clear answers. Nor does it suggest that there is never any room for the consideration of what some have termed constitutional values. But it does dramatically reduce the opportunities for unelected judges to substitute their personal values for the democratic process and the rights protected by the Constitution. Reducing Judicial Mischief How does this work? Let us start with a simple example involving another of those pedestrian, administrative procedures that make up the bulk of the original document. Article I, Section 4 provides in part that Congress shall assemble at least once in every year. Does this mean that Congress shall meet at least once every 365 days? Or does it mean that Congress must meet at least once in each calendar year? I suppose one could debate this, but even the most creative constitutional scholars would be hard pressed to interpret it to mean that Congress may go from January 1 through December 31 without ever meeting, or that Congress must meet more than once in a year.

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And it is a governing document. For example, Article I includes such mundane matters as when Congress shall convene, when yeas and nays shall be published, that Congress shall publish a record of its proceedings, and how members shall be compensated. Articles II Thus, while a need to interpret exists, the simple language and III establish the executive and judicial goes a long way to answering any questions. branches. Later articles take care of such To curb We need not ask ourselves what values boring administrative matters as oaths of spending is are at stakealthough surely the founders office, provisions for adding new states, and had reasons for wanting Congress to meet provisions for amending the document itself. to curb speech. regularly, and those reasons originated in When in Doubt, Apply the Text values they held. The values are irrelevant to the constitutional command. While other cases will be The Federalist Papers, those wonderful expositions by more difficult, the principle remains. Hamilton, Madison, and Jay, do not argue that these are values of the nationrather, they argue for the Constitution Confusion from Kagan and Breyer by pointing out how the language of the document, and Take, for instance, my area of greatest expertise, campaign the government it forms, will work to promote a wide finance law. Almost all judges and scholars agree that variety of values and goals held by different citizens. limiting spending to circulate political messages violates The Constitution, in other words, is a procedural document. the First Amendment right to free speech. It costs money In its few pages, it establishes a government with three to publish a book or a movie, to organize a rally, to rent independent branches, explains how each branch is to be a hall for a speech, or to pay for campaign ads. Thus, a selected, and specifies the power held by each. It does not law which specifically prohibits raising money for these proclaim valuesrather, it lays out the means by which we purposes serves to limit political speech. have agreed to pursue those values. The First Amendment declares that Congress shall make If the purpose of the Constitution is indeed to establish no lawabridging the freedom of speech. Yet despite a working government, rather than to enunciate broad this rather clear command, Congress has frequently passed principles of political philosophy, then I suggest that onerous restrictions on political speech, and far too often the best way to begin any exercise of constitutional the Supreme Court has upheld these restrictions. Indeed, interpretation is through a straightforward application of in a 2010 case called Citizens United v. Federal Election the text. Does this seem obvious? That would only be Commission, then U.S. Solicitor General (now Justice) Elena because you have not been schooled in the law; for this Kagan argued that the Constitution even permitted the

U.S. government to ban political books and movies.1 Even more remarkably, four Justices of the Supreme Court seemed to agree. How can this be? The answer is the substitution of values for the actual provisions of the Constitution. Justice Stephen Breyer, for example, is a leading theorist for the idea of a values-based interpretation of the Constitution. While Justice Breyer has made clear that he believes that campaign finance regulations abridge free speech, he also believes, as a matter of policy, that the regulation of political speech can improve American self-government by promoting better debate and greater political equality.

the First Amendments protection of speech was a distrust of government regulation of the political process. Why are so many so eager to interpret the Constitution not in terms of its actual provisions, but in terms of its alleged values? The answer, oddly enough, is that many of these same persons are not particularly enamored of many of the values that seem to have motivated the drafting of the original document and its first ten amendments, the Bill of Rights.

What were some of the values behind the Constitution? They included national unity, as reflected in the full faith and credit clause; the power given the federal government to A Strong Presumption coin money and carry out foreign policy; the requirements of Article I, Section 8 that duties, imposts, Thus, despite the constitutional command that What part of and excises be uniform throughout the Congress shall make no law, he argues that make no law country, and of Article I, Sections 9 and 10 there is no place for a strong presumption against constitutionality of speech-abridging dont they get? that no duties may be laid on exports between states; or Congresss power to establish post regulations because there are constitutionally roads. Clearly, representative democracy was protected interests on both sides.2 To those of us who another important value. So far, so good. Few people take language seriously, this is patently absurd. We do not today do not share these values. argue that even such absolutist language as Congress shall make no law is in all respects absolute. For example, the government may be able to punish the unauthorized distribution of classified material, or maintain libel laws. But surely Congress shall make no lawabridging the freedom of speech must at least mean that there is a strong presumption against the constitutionality of a law abridging what Justice Breyer agrees is the freedom of speech. Founders Distrusted Power But other values of the founding seem more controversial today. Among the other values that surely influenced the Constitution were respect for private property and a tremendous distrust of government power. These values are discussed at length in the Federalist Papers and reflected in many provisions of the Constitution. Prominent examples are the due process and procedural protections of the Bill of Rights; the explicit protections of private property and the right of contract found in Article I and in the Fifth Amendment; and the documents careful division of power, with its three coequal branches and bicameral legislature. Another key value reflected in the Constitution that seems particularly unpopular today is the desire for a limited government. The framers sought to support this not only in the express limitations of the Bill of Rights but in the structure of the government as one of enumerated powers. This concept has, over the years, been all but obliterated. By resorting to constitutional values or interests, legislators and courts have been able to slip the actual
CENTENNIAL REVIEW is published monthly by the Centennial Institute at Colorado Christian University. The authors views are not necessarily those of CCU. Designer, Danielle Hull. Illustrator, Benjamin Hummel. Subscriptions free upon request. Write to: Centennial Institute, 8787 W. Alameda Ave., Lakewood, CO 80226. Call 800.44.FAITH. Or visit us online at www.CentennialCCU.org. Please join the Centennial Institute today. As a Centennial donor, you can help us restore Americas moral core and prepare tomorrows leaders. Your gift is tax-deductible. Please use the envelope provided. Thank you for your support. - John Andrews, Director
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The problem with Justice Breyers approach is that every question of constitutional law that reaches the Supreme Court is likely to have constitutional interestsvalues on both sides. Otherwise, it is difficult to envision that anyone would ever take a constitutional challenge all the way to Supreme Court. Once constitutional values can be substituted for the actual language of the Constitution, there is no meaningful check on the courtsor frankly, on popular majorities, for legislators, too, agree to abide by the Constitutionfrom doing whatever they want. In other words, there is no Constitution. First Amendment Makes No Exceptions Moreover, to say that there are interests on both sides and to then ignore the Constitution is, in most cases, likely to be a means of ignoring the values that might actually have led to the inclusion of the constitutional provision at issue. Indeed, in this particular case, the First Amendment could have provided exceptions for regulating speech to foster political equality or to improve public discourse or simply, when necessary in the public interest. That it did not is perhaps recognition that the value most behind
1. 30 S. Ct. 876 (2010). 2. Nixon v. Shrink Missouri Government PAC, 528 U.S. 377 (2000) (Breyer, J., concurring).

Centennial Review
October 2011

Centennial Institute
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By Bradley A. Smith The U. S. Constitution is not a living document evolving with the times or a mirror reflecting contemporary values. It is a governing document with clear directives about procedures and powers. But misguided judges, politicians, and professors have now put limited government in grave jeopardy.

The Constitution Means What It Says

constraints of the Constitution, creating a government that is, in many ways, quite at odds with what the framers of the Constitution appeared to have in mind.

Thus, when former Representative Phil Hare (D-IL) was asked where the Constitution gave Congress the authority to mandate that Americans purchase particular Limited But if the Constitution is to serve any purpose, it packages of health insurance, he responded, I dont worry about the ConstitutionI care government must be something more than a mere repository of whatever values a judge or legislator has more about people without health care. Hare is fading. in mind. It provides the how, not the why, of was widely criticized for this, and the statement American governance. may have contributed to his defeat at the polls in November 2010. So the recent focus on the Constitution and its actual Pelosis Astonishment But in a sense, the congressman was merely following the theories of Professor Bickel and Justice Breyer. His job, as he saw it, was not to follow the Constitution, but rather its valuesat least as he saw them. And surely promoting the health of Americans is a reasonable value, is it not?

This is why many who should have known better were surprised by the constitutional objections raised against the massive federal health insurance bill passed in 2010. As Speaker Nancy Pelosi asked in astonishment when questioned about the constitutional authority for the bill, Are you kidding? Are you kidding?

language, including its public reading on the floor of the House of Representatives at the beginning of the 112th Congress last January, is a good thing. A meaningful constitution imposes meaningful constraints and procedures on the methods we use to try to fulfill our values. No kidding.

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