Original Intent and the Framers' Constitution. - book reviews

National Review, Dec 30, 1988 by Joseph Sobran

Original Intent and the Framers' Constitution, by Leonard W Levy (Macmillan, 525 pp., $19.95)

HISTORY CAN only be a guide, not a controlling force," writes Leonard Levy in this blistering, sometimes bilious attack on what Edwin Meese called "the jurisprudence of original intent." Professor Levy is an indispensable historian of the Constitution, and he wants to show that the intention of the Framers (when it can be ascertained at all) is as embarrassing to conservatives as it obviously is to his fellow liberals. He stops short of saying that original intent is irrelevant to interpreting the Constitution, but he argues that since it can't be adhered to strictly, we should resign ourselves to a certain amount of judicial subjectivity.

Original Intent and the Framers' Constitution shows how problematic the original-intent principle can be. Madison himself never published his extensive notes on the Philadelphia Convention and explicitly denied that the meaning of the Constitution could be located in its deliberations: he found it in the public understanding of the text and, Levy says, was willing to accept changes in that understanding. Madison's generation was not even agreed about the legitimacy of judicial review, and Levy makes a persuasive case that Marshall's claim of the prerogative was a piece of flimsy legerdemain. The meaning of the Constitution, he says, was fluid from the start.

True, there are limits. Levy acknowledges that William Brennan and Thurgood Marshall fly in the face of the text when they insist that capital punishment is unconstitutional. He goes so far as to say they "corrupt the judicial process and discredit it" by so obviously contravening what the Constitution says.

But this welcome concession only raises the question whether Justices may justifiably impute to the Constitution anything they believe to be in accord with its "spirit," provided the letter doesn't stay them. Even a loose constructionist ought to have qualms about freely projecting such meanings. There should be a strong presumption against asserting that the Constitution requires what nobody has understood it to require over two centuries.

The obvious example is abortion. In Roe v. Wade, the Court held in effect that all fifty states had always legislated unconstitutionally. Given that some states had liberal abortion laws, this meant that no public understanding of the Constitution had ever been correct. Moreover, I know of no dissenting minority in the legislative debates of any state that had taken the Court's position, namely, that any restrictions on early abortion violate the Constitution. The Court was plainly imposing a current political agenda of the Seventies through the short-cut of judicial review. This was a violent departure, not a development. The distinction should be vital for a loose constructionist, but Levy offers no clue as to how to make it; the thrust of his argument merely undermines it, as it undermines any stable understanding.

Nor does he tell us how abuses of judicial power might be controlled. He simply trusts that they won't happen often enough to matter. But since the Supreme Court typically strikes down state laws, this is a real constitutional problem: the state legislatures have no checks and balances to defend their prerogatives against judicial usurpations of power. How can the Tenth Amendment be enforced against the federal judiciary?

Levy enthusiastically supports the Court's use of the Ninth Amendment, guaranteeing unenumerated rights, to give itself carte blanche in overturning state legislation. But how are these rights to be defined? Levy endorses the "right to privacy," a fine example of what Burke called "these metaphysical rights of man." Legally, there can be no such right, any more than there can be a constitutional "right to justice."

Imagine this amendment: "The right to justice shall not be infringed." As a moral principle it's unexceptionable; as a legal provision it would mean chaos.

Though Levy leans hard on the idea of legal "evolution," the eighteenthcentury minds of Madison and his peers were not too antediluvian to formulate a right to privacy. But they understood that so general a right was too general even for a Constitution. It could mean too many things, not all of which the United States could be committed to. So they protected privacy, like liberty, through more specific provisions, such as the guarantee against unreasonable search and seizure.

The modern Court has adopted the strategy of pretending that such provisions were only fumbling attempts to express more abstract rights (e.g., William Douglas's penumbral right to privacy), from which in turn it derives controversial particular rights (e.g., the right to abortion) more to its liking. By this means tbe Court has passed off as matters of constitutional consensus broader than mere majority will a series of items that are in fact historically, as well as politically, narrower than that will. Judicial review as a limitation on majority rule is one thing, but quite another as a device of minority rule. Levy seems not to understand this.