Connecticut Bar Journal
83 CBJ 217.
A JURISDICTIONAL VIEW OF THE UNITED STATES CONSTITUTION
Connecticut Bar JournalVolume 83, No. 3, Pg. 217SEPTEMBER 2009A JURISDICTIONAL VIEW OF THE UNITED STATES CONSTITUTIONBy William T. Barrante(fn*)In his book How Democratic Is the American Constitution?, Robert A. Dahl, a political science professor at Yale University, says "that the legitimacy of the [United States] constitution ought to derive solely from its utility as an instrument of democratic government-nothing more, nothing less."(fn1) Professor Dahl believes that the United States Constitution should be interpreted to promote a certain type of society as opposed to a document limiting the excesses of democracy, and with the just-quoted statement confirms that the "living document" interpretation of the Constitution is utilitarian-a constitutional provision must serve, in Professor Dahl's opinion, a democratic purpose. The opposing view of constitutional interpretation is generally known as the "originalist"(fn2) or "textual"(fn3) approach, which are not exactly the same but are used in tandem with each other. The originalist and textual approaches may jointly be described as a jurisdictional view of the Constitution.
The major purposes of government in the United States should be protection of life and property and the preservation of freedom. Both these functions are interrelated. In his dissenting opinion in Lochner v. New York,(fn4) Justice Oliver Wendell Holmes said that the United States Constitution does not mandate any particular economic philosophy for this country. But it does prohibit extreme forms of socialism because it protects private property(fn5) and prohibits unwarranted governmental intrusions into our property.(fn6) An ideological interpretation of the Constitution, whether for "democracy," or for "free enterprise," or for personal autonomy, is wrong. Thus, regarding the Constitution as jurisdictional often stands in the way of politicians, lawyers and jurists who want to expand governmental, particularly federal, powers. The only way to get around this, short of amending the Constitution, is to rewrite the Constitution by reinterpretation. "Commerce" thus becomes anything that moves and anything that makes it move.(fn7) Powers that were always reserved to the states under the Tenth Amendment somehow become unreserved.(fn8 )Community standards must give way to national standards even where the Constitution does not require national unifor-mity.(fn9) The bars that the Constitution sets up are jurisdiction-al bars, not ideological bars.
The purpose of this article is to discuss these opposing viewpoints from the perspective not of democracy but of liberty. My conclusion is that the jurisdictional viewpoint better protects both individual freedom and self-government in the context of a constitutional republic. For example, the utilitarian may say that the purpose of freedom of speech is to advance democracy(fn10) because a true democracy depends on people being able to discuss political issues. The jurisdic-tional view is that freedom of speech is important whether or not it promotes "democracy" because the First Amendment draws a line over which Congress is not supposed to cross. Thus, under the utilitarian view, a law regulating the amount of speech in a political campaign should be constitutional because it promotes democracy by leveling the political playing field.(fn11) On the contrary, restricting the amount of speech restricts freedom-the purpose of the free speech clause of the First Amendment(fn12) is not to balance or equalize speech but to keep government out of the way of people and organizations that wish to take part in the political process.(fn13 )Constitutional utilitarians are not always political liberals. Conservatives also have crossed the jurisdictional lines when it suits them.(fn14)
Democracy and Freedom
Professor Dahl has support on the Supreme Court. Justice Stephen G. Breyer also believes that the Constitution should promote a "democratic" society. The subtitle to his short, well written book Active Liberty is "Interpreting Our Democratic Constitution." Breyer writes that the goal of constitutional interpretation should be "to make 'We the People' a phrase that finally includes those that the Constitution originally and intentionally ignored."(fn15) Those ignored people were, of course, women and blacks. They were "ignored" because the Constitution did not grant them the right to vote, that is, the right to take part in the political process. Breyer, however, is wrong. The original Constitution did not grant anyone the right to vote, except the people who were qualified to vote for members of their own state legislatures. Voting rights were left to the states.(fn16) Dahl believes that leaving voter qualifications to the states was a defect in the original Constitution, as were the Electoral College and granting each state two senators regardless of population.(fn17) The federal structure is important in preserving liberty and advancing democracy and self-government. Under James Madison's plan, the states were supposed to be active parts of government in the United States. "Democratic" reform took place first at the state level, including by the 1820s granting the right to vote to most adult white males. In 1789 any state could have granted the right to vote to women, or abolished slavery. They had power to grant the right to vote to African-Americans, as several did before the Civil War.(fn18) Because the Framers of the Constitution allowed the states to be the laboratories of democracy, Justice Breyer writes that women and blacks were not part of the American "Community" and therefore makes the absurd statement, "As history has made clear, the original Constitution was insufficient."(fn19) History shows just the opposite. First, because the states had the power to make the country as "democratic" as Justice Breyer wants it to be, the Constitution was certainly sufficient. The Constitution also provided for amendments, which eventually abolished slavery and granted both blacks and women the right to vote.(fn20 )Second, although women could not vote, they were certainly part of the "community"-they were prominent in the anti-slavery and temperance movements, as well as the women's suffrage movement, and they were prominent in several American churches.(fn21) In the early 1850s, Harriet Beecher Stowe, who could not vote, wrote and had published Uncle tom's Cabin, which had a great influence throughout the country and the world.(fn22) When Justice Breyer says that women were not part of the "American Community," does he mean that the First Amendment did not apply to women? True, Mrs. Stowe could not have had a book signing in Atlanta or New Orleans, but not because she was a woman.Didn't women have the right to a jury trial? In some areas, black slaves had the right to a jury trial in criminal cases. Was a woman's house subject to unreasonable searches and seizures? Didn't some women on the frontier carry and fire rifles? Does Justice Breyer mean that the only way to become a part of the Community is by having the right to vote? Even escaped slaves and free blacks in the years before the Civil War took part in American politics by writing and editing anti-slavery newspapers.
Democracy is not synonymous with freedom and in many ways can be a detriment to freedom. In the movie the Patriot, the South Carolina farmer Benjamin Martin (played by Mel Gibson) is at first a conservative on the question of going to war against Great Britain in 1776. At a Charles Town assembly, after one delegate calls King George III a tyrant, Martin stands up and says, "Why should I trade one tyrant 3,000 miles away for 3,000 tyrants one mile away?" During the 1920s, a person could legally buy a glass of wine in fascist Italy but not in the "democratic" United States. The value in living in the United States, however, was that Prohibition could be and was repealed. The Italians could not vote Mussolini out of office. Thus, what the United States Constitution does is provide a framework of government so that power can change hands.(fn23 )It's not "democracy" or majority rule that protects our freedoms. It's the ability to throw people who threaten our liberty out of office. In the above Mel Gibson example, Benjamin Martin could not choose who the king of Great Britain was or who his successor would be. But Martin could help choose which of those 3,000 tyrants would represent him in the South Carolina legislature and he could even run for office himself. The United States Constitution gives us self-government, at the state level and also at the federal level. Government is of course closer to the people at the state and local levels, and that is why the federal government should not be vested with too much power.(fn24)
Thus, Justice Breyer is mistaken in his view that judges should interpret the Constitution to promote "democracy." The Constitution is not utilitarian; it's jurisdictional. The Constitution draws lines-lines between state and national power, lines between the various branches of government. Those boundaries protect our freedom only when they are respected, by legislators and also by courts.
Justice Antonin Scalia, an orginalist, has observed that the evolutionary view of the Constitution for the most part has not expanded rights but has contracted them...