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Laurence H. Tribe, Senior Counselor for Access to Justice Speaks on Constitution Day: “If Ours Is a Living Constitution, Whose Job Is It to Keep It Alive?”
Washington, D.C. ~ Friday, September 17, 2010

Remarks as prepared for delivery.

"I want to begin with a seemingly simple question: What is it we celebrate each “Constitution Day”? In 2008, I was asked to deliver the Constitution Day Lecture at the National Archives just down the street. I labeled that talk “The Constitution Has Left The Building.” In that riff on Elvis, I wasn’t suggesting some sort of break-in or theft. Nor was I announcing the Breaking News that the hallowed parchment so carefully preserved under glass in a temperature-controlled, air-tight container had mysteriously departed the premises. My point, rather, was that “the Constitution” we study and celebrate isn’t really IN that air-tight container at all. It never was. Its “contained” in no parchment or building but has another kind of being altogether.

Think about the oath that nearly all of us in this Great Hall have taken (pursuant to Article VI) to “support this Constitution,” or the oath President Obama took in January 2009 (pursuant to Article II) to “preserve, protect and defend the Constitution of the United States.” What is it we’re oath-bound to support and obey? What is it that the President is bound by “Oath or Affirmation” to preserve and protect?

By its own terms, “the Constitution” is a framework for self-government that “We, the People of the United States” did “ordain and establish . . . for the United States of America.” As expressed in the text that the Constitutional Convention approved in Philadelphia 223 years ago today, Article VI proclaimed the Constitution to “be the supreme Law of the Land,” a phrase whose meaning is being tested in more than one federal court even as we speak. 

But it wasn’t the Constitutional Convention’s 1787 proclamation that MADE the text the Framers promulgated into “supreme Law.” To begin with, any attempt to validate a statement like that in Article VI merely by self-reference would encounter an intractable logical problem of infinite regress. But the problem in this context is not one of logic alone; it’s one of politics: When the Americans won the Revolutionary War, more than just royal prerogative was rejected. Rejected as well was the idea that anything could become a supreme source of binding law just by its own say-so

We are led, then, to look to Article VII, which declared the Constitution’s ratification by nine of the thirteen States in the period between 1787 and 1788 sufficient to elevate that text into the status of our nation’s supreme law. Yet the Articles of Confederation had required the ratification of all thirteen States to effectuate a constitutional change, and that process wasn’t completed until 1789. Perhaps for that reason, the Constitution is usually described as having been “ratified” in 1789. But the last four states to ratify the text did so under the duress of knowing that their only other option was to be frozen out of what others would describe as “the United States of America.”

Scholars have long debated the significance of the majoritarian ratification process that led to that result. As the Framers themselves had to know, that process departed from – in fact, not to mince words, it clearly violated – the process of unanimous agreement, freely given, set forth in the Articles of Confederation. Yet it was those Articles that alone gave the Convention its claim to legitimacy. Without the imprimatur of the Articles, that Convention wouldn’t have differed from any other citizen assembly. And of course even the Articles of Confederation represented a revolutionary break – literally – from the law that had bound the States to England as thirteen of its colonies. Thus the body of law surrounding and preceding our current Constitution’s promulgation and ratification supplies no “rule of recognition” or other basis for treating the Constitution as the binding legal framework for our republic. The quest for legitimacy in the Constitution’s past proves a quixotic one. To invert a comment that Justice Kagan made in her recent confirmation hearings, “It’s non-law all the way down.”

Beyond the way in which the ratification process itself violated the pre-existing legal framework for changing the Articles of Confederation – not to mention the way in which even the Articles were born in bloody revolution rather than in anything one can easily describe as “law” – there is the deeply troubling fact that only propertied white males had any formal role in the constitution-making process, either of ratification or of initial drafting and promulgation. That shameful exclusion of African Americans, whether enslaved or free; of all people without property, whatever their race or gender; and of all women, regardless of race or wealth, didn’t in itself violate any pre-existing framework of positive law. But it surely violated the constitutional norms that we have subsequently come to regard as indispensable to any claim to legal and political legitimacy.

Not until the ratification of the 15th amendment in 1870 did the racial exclusivity of the franchise underlying our government end even in theory – and, of course, it took much longer for it to end in practice. It took another half-century before the 19th amendment in 1920 ended the gender exclusivity of the franchise. Not until 1964 did the Constitution, pursuant to the 24th amendment, formally enfranchise those unable to pay a poll tax. And not until 1971, pursuant to the 26th amendment, did the Constitution formally enfranchise those between 18 and 21.

In an important sense, then, the real Framers of the Constitution, as it has unfolded over time, were not just the propertied white gentlemen who met in that hot summer over two centuries ago in Philadelphia but the many more – women and men, poor and rich, black, white, brown, and yellow – who marched and bled, who sang and rode buses and sat in and sometimes died, to make freedom ring. Their song did not take all its lyrics from the Constitution’s literal text as it stood at any one point in time. The Constitution has furnished the score; We the People, its lyrics.

It was the evolving character of the Constitution – its ability, both through formal amendment and through other, less formal means, to become more encompassing and inclusive over time – that alone enabled it to approximate the “people’s charter” that it had to become if its moral claim to legal supremacy was to be a compelling argument for all of America’s people, for “We the People of the United States” and not just for “We certain privileged male citizens of the United States.” Throughout his career, and indeed even in his days as a law student and as my most extraordinary research assistant, President Obama has spoken and written about this distinctive feature of our Constitution, emphasizing the Preamble’s pointed aspiration “to form a more perfect Union,” an aspiration expressed in language that makes the Constitution unique in acknowledging its own imperfection and in relying on its capacity for growth.

But the growth that the Preamble envisioned and that our history has affirmed involves more than an ever-widening circle of eligibility to participate in the governance of the Union and of its several States. The premise of meaningful self-government undergirding the Constitution – a premise more explicitly and eloquently articulated in Lincoln’s Gettysburg Address than in the Constitution itself – entails more than simply the right to vote, central and precious as that right is. A tyranny of the majority can be practiced even in a state where all are accorded a right to vote. Basic as it has seemed ever since the revolution inaugurated in 1962 by Baker v. Carr, the principle of “one person, one vote” may be a necessary, but it is clearly not a sufficient, guarantee of the “more perfect Union” that the Constitution’s Preamble promised to “form.” 

Beyond equality of the franchise, that guarantee necessarily presupposed as well the Preamble’s other aims – to “ establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity.”

So it is that the Constitution’s premises cannot be satisfied, nor its promises fulfilled, unless our system affords meaningful access to justice, provides the security made possible by domestic order and a strong national defense, is structured to promote the welfare of all, and is constrained by a due respect for the claims of personal liberty.

But those constitutionally grounded objectives, unlike some of the Constitution’s more rigid and concrete rules, are cast at a level of generality that demands recognizing the Constitution as an evolving social organism and not just as the fixed embodiment of a social contract, one struck centuries ago by propertied white males. Think back to our Declaration of Independence, to which the revolutionary generation that broke from England pledged their lives, their fortunes, and their sacred honor. It was to a LIVING PROJECT, not an INERT MONUMENT, that they pledged their very being. And it is likewise to a living project, not an inert monument, that I believe all of us have pledged ourselves in the constitutional oath each of us took upon assuming our roles in the Department of Justice.

Ours is, of course, a written Constitution, and its very “writtenness” has long been a source of national pride and of the text’s iconic status. But many of the precepts and principles that nearly all of us would surely identify as facets of our Constitution – things as basic as the proposition that ours is a government of laws; that government is powerless to dictate the shape of our personal lives and thoughts; and that no state may secede from the Union – are written neither in parchment nor in print but in the blood spilled on fields of battle at places like Gettysburg and Guadalcanal, or in the muscle memory of our national heritage.

Keeping the Constitution and the values it embodies vibrant within the constraints imposed by the rule of law is a goal to which I have thus far dedicated 40 years of writing and teaching, including mentoring students as extraordinary as President Obama, Chief Justice Roberts, Justice Kagan, and Associate Attorney General Perrelli. And it is that same goal that prompted me to take on the difficult mission that the Attorney General, and the Associate Attorney General asked me to assume in leading the Access to Justice Initiative. Although it was clear from the outset that my office would lack both formal authority and grant-making capacity, powers akin to those of the sword and of the purse, the office was to be armed with the powers of reason and persuasion and with the capacity to identify synergies wherever possible in order to encourage good practices to go viral, to make real the notion that the People’s Charter applies to all of us – not just to the well-off and the privileged but to the kinds of people I have met around the country in the course of my six and a half months at Justice, people with dignity and good intentions but with limited resources and dramatically unmet legal needs, for whom access to justice means the difference between remaining a nurturing parent and permanently losing custody of a child, between living in your own home and living on the street, between breathing the fresh air of freedom and suffering dehumanizing imprisonment, between enjoying residence in the United States and suffering the deprivations of detention and deportation.

The simple, perhaps naïve, truth is that I was led to join all of you who work in this building by the thought that I could, after four decades in the academy, finally make a more direct contribution to the way people live their lives in fulfillment of the Constitution’s profound promises of dignity and decency and of equal justice for all – promises that bespeak not an inert Constitution, frozen in time, but an alive Constitution, responsive to changing circumstances and unfolding realities.

It’s vital to recognize that what keeps the constitutional project alive is not just the remote prospect of formally amending the document, a prospect wisely made so deliberately difficult that it has succeeded just 27 times in over 220 years. No formal amendment accompanied the storied constitutional revolution of 1937, which transformed the Constitution from a strait-jacket constraining the powers of the states and especially the national government to “promote the general Welfare” through socio-economic legislation, into a framework that liberated the federal government to regulate commerce in the interests of the nation as a whole, and the states to regulate contract and property, provided only that all levels of government respect the basic personal liberties and the guarantees of equality embodied in the Bill of Rights and in the Fourteenth Amendment. Those equality guarantees were in turn not limited to what was anticipated and specifically envisioned by the framers of that amendment. That amendment’s Civil War era framers never expected that racially segregated public schools would be deemed to violate the “equal protection of the laws,” but the Supreme Court in Brown v. Board of Education was right in perceiving that racial segregation by law did indeed violate the core principles of equal protection as those principles were rightly understood 86 years after the Fourteenth Amendment was ratified.

As with equality, so too with liberty. The authors of the Liberty Clauses of the Fifth and Fourteenth Amendments never expected that laws against interracial marriage or sex in private between consenting adults of the same gender would be deemed to violate those clauses, but the Supreme Court in Loving v. Virginia, decided in 1967, and in Lawrence v. Texas, decided in 2003, was right in perceiving that such intrusions by legislative majorities into the freedom of intimate personal relationships did indeed violate the core principles of liberty.

The words of Justice Anthony Kennedy, writing for the Lawrence v. Texas majority just seven years ago, powerfully express the vision of a “living” Constitution in responding, on behalf of the Court, to the dissenters’ doubts that the framing generation could have anticipated the results wrought by the Court’s ruling:

“Had those who drew and ratified the Due Process Clauses of the Fifth Amendment or the Fourteenth Amendment known the components of liberty in its manifold possibilities, they might have been more specific. They did not presume to have this insight. They knew times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress. As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom.”

Precisely. And when Justice Scalia, writing in impassioned dissent, predicted that those views, and the Court’s reasoning in Lawrence v. Texas, could not be reconciled with a legal prohibition on same-sex marriage, he expressed an opinion that some will surely quote in defense of Judge Vaughan Walker’s recent invalidation of California’s Proposition 8.

The examples of judicial evolution in understanding – in the mid-30s, in the 50s and 60s, and most recently in the decisions about intimate sexual relationships – might be thought to suggest that constitutional transformation beyond formal amendment takes place principally through the common-law process of case-by-case Article III adjudication. And, to be sure, there is a rich body of scholarly literature devoted to the study of how the creative potential of the common law method , brought within the rule of law by the powerful constraints implicit in that method, enables judges to refine their understanding of what the Constitution means without lawlessly imposing their purely personal views.

The relentless emphasis of that scholarship upon judicial philosophy and method conveys the impression that our Constitution lives and grows mostly through the work of judges. But that’s not so. The evolution that led the Supreme Court to abandon the Lochner-era constraints on laws protecting children and wage-earners – and to broaden its understanding of the reach of Congress’s power to regulate commerce – was spurred by mostly private citizens generating popular movements, movements that led to changes at the state and national legislative levels and that were reflected in turn by the exercise of the President’s power to nominate and the Senate’s power to confirm Supreme Court Justices. All three branches of the national government, and both levels of government in our federal/state system, have participated in the Constitution’s evolutionary character. And it has been “We, the People” – ordinary people, sometimes leading extraordinary lives – who have been the primary engines of constitutional development. No one branch or level of government has ever truly had the last word in the constitutional conversation that has marked our legal system’s progress.

Especially in settings where federal judicial enforcement is ruled out by the principles underlying the political question doctrine, or by practical and political considerations, it must of necessity be the political branches – Congress and the Executive – that keep the Constitution alive. The Supreme Court has by and large treated the impeachment process and the war-making process, to name the two most prominent examples, as provinces within which constitutional principles must be interpreted and applied without any significant judicial oversight or supervision. In such settings, all of us have an especially solemn duty to take our responsibilities as Justice Department lawyers seriously and to attend to the larger picture rather than remaining within our lanes and focusing solely on how certain policy decisions might affect our workloads or our components’ “equities.” Both as a matter of statutory responsibility and as a matter of institutional interest, each of us has a role to play in defending the prerogatives of his or her office or division of the Department. But as a matter of constitutional morality, each of us also has an even more significant role to play in ensuring fidelity to the Constitution and its evolving spirit.

Particularly where the Article III branch is not looking constantly over our shoulders or looming continuously over the Hill, if either Congress or the President – or any of us – ignore constitutional boundaries or fall short of living up to our constitutional obligations, it is up to “the people themselves,” through the pressure of public opinion as reflected ultimately at the ballot box, to keep the Constitution alive and well. In short, we cannot always rely on the Judicial Branch to save us from ourselves. 

Over a century ago, the famous American poet James Russell Lowell warned that too many had come to see the Constitution as a “machine that would go of itself.” Twenty years later, Woodrow Wilson – the only constitutional law professor prior to President Obama to be elected president – recognized that the Constitution is best conceived not as a machine at all but as a “living thing.” What he didn’t add was that it is a living thing with no body or mind, no moving parts or organs or spirit, separate from the bodies and minds and spirits of the people themselves – people whose constant vigilance, often in the face of terrible temptations like those surrounding 9/11 and its aftermath, is the lifeblood of constitutional survival. A little over twenty years ago, The Wall Street Journal (3/27/87 at 1, 12) recounted the results of a “constitutional convention” held in Colonial Williamsburg by some 52 Virginia high school students. A 16-year-old from Fredericksburg summed up one of the central lessons the 2-day pseudo-convention taught: “It’s more a question of what people do with it than [it is] the document itself,” the teen-ager said.

If only we could all learn that lesson: The world is littered with lovely-sounding constitutions. Nearly all of them proclaim and preach humane, high-minded visions. Yet ours is among the very few that represent practice as well as preaching. What makes us who we are, and what we offer to the world as our antidote to intolerance and hate, is the courage to live by our convictions and not just voice them.

I end as I began, with a recognition that an ancient charter, like a historic building or a concrete memorial, is – to borrow an image from Oliver Wendell Holmes – but the “skin of a living thought.” The “skin” – the framework of the Constitution the Framers sent forth from Philadelphia in 1787 – is our Nation’s foremost symbol of hope. But only the “living thought” – the endlessly difficult work of keeping our Constitution flexible and vibrant while adhering to the rule of law – can bring that hope to life.

So the answer to the question posed by this lecture’s title – “ If Ours Is A Living Constitution, Whose Job Is It To Keep It Alive?” – can be expressed in a single word: “Ours.” It’s OUR job – the job of each of us, both as executive officers and as citizens of a free country – to keep alive the Constitution we celebrate today.

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