Constitution Check: Is devotion to the Constitution destroying democracy?

Lyle Denniston

Lyle Denniston looks at a claim that interpreting an old document, like the U.S. Constitution, is a doomed attempt to apply outdated legal principles.



“Professor Neuborne describes this dysfunctional democracy very well, but he does not give the real reason for that dysfunction – the reverence for the United States Constitution.   Each of the Supreme Court’s iniquities he lists is based on the interpretation by five of nine high priests of increasingly irrelevant documents written by wealthy white men in an unimaginably different and distant world.”

 – Michael Gorman of Chicago, a native of Great Britain, as quoted in The New York Times on November 10.  He was one of several writers engaging in a dialogue with New York University law professor Burt Neuborne over the professor’s complaint about harm done to American democracy by a series of modern Supreme Court rulings. The full exchange can be read here.


One of the fundamental issues that deeply divides the nine Justices now serving on the Supreme Court is the proper way to interpret the Constitution’s meaning for today’s world.  Some of the Justices believe that the key is the “original meaning” of the document – that is, as it was understood in 1787.  Others believe that the document is a “living Constitution” that is adaptable to changing times and thus acquires new meaning from time to time.

No one expects that disagreement ever to be finally resolved. At the same time, all of the Justices agree that the Constitution embodies enduring principles, and that it is the duty of judges in this country to apply them.  Even a sincere devotion to those principles, though, is bound to produce disagreements about their contemporary meaning.

What is often misunderstood about the process of constitutional reasoning is that the Constitution itself does not provide all of the necessary answers to any legal problem that turns on enduring principles.  No document, and certainly no legal document, can always be understood by its literal meaning.  Words are means of expressing ideas, and the same words can mean different things to different judges.

Take, for example, the words of the First Amendment, declaring that “Congress shall make no law….”, etc.  Does that mean that the Amendment only restricts Congress in the use of its powers?  The Supreme Court interpreted it that way – until 1925.   In the decision that year in Gitlow v. New York, the Court began applying the idea that at least some parts of the Bill of Rights restricted the powers of state governments, too.  (Some scholars say that this process actually got its start in 1897.)

That process has continued, off and on, since then.  Most recently, in 2010, the Supreme Court ruled for the first time that the Second Amendment “right to keep and bear arms,” when understood as a personal right to have a gun, applied to state and local gun control laws, too.

What’s the explanation for that process?  The Court interpreted the 14th Amendment’s guarantee of “due process” – two words that are inherently indefinite – to embrace certain fundamental rights, so that the states and local governments, as well as Congress, had to respect and enforce them.

At a more basic level, this process also reflects the very nature of law.  Law is the means by which a society keeps order, and a society would be in constant anarchy if the people could not count on the law being relatively stable. If law is developed in a sound way, that stability reflects how a well-ordered society should be run, by more or less common agreement.

But stability does not mean that legal principles are frozen in time.  There was a time, for example, when petty theft could bring a death sentence.  As more civilized ways of resolving property disputes developed, and as community policing brought more civic order, such punishment was seen as too harsh.  In American constitutional history, this kind of changing perception is reflected in the way that the Eighth Amendment’s ban on “cruel and unusual punishment” has evolved over time.  As one example, it is now unconstitutional to execute a minor even for murder.

As the British native Michael Gorman suggests, in his comment quoted above, some critics of American constitutionalism seem to believe that interpreting the old document means a doomed attempt to apply outdated legal principles.

But even in his own native land, there is such a thing as the “British constitution,” embodying fundamental legal norms, even though it is not written down in the same way as the U.S. Constitution is.   Law in Britain is the accumulation of the “common law,” as it has been developed by judges over time, supplemented by parliamentary legislation.  British courts still respect some parts of the Magna Carta, even though it dates from 1215.

And, for the past four years, Britain has been imitating – to a degree – the U.S. model of a Supreme Court.  The United Kingdom Supreme Court was created by an act of “constitutional reform” in 2005, and began work four years later.  Its power to overturn laws is not as extensive as that of the American court, but it does have significant power to determine law for Britain.

The very idea of a supreme court, of course, is that, somewhere in government, the power to interpret basic legal commitments and promises must be lodged.  The American experiment, now more than two centuries old, shows that this power of interpretation should not be left to the elected political branches.

Perhaps one can attempt to dismiss devotion to the constitutional idea of judicial review as sentimental “reverence,” but it is more properly understood as a good faith belief in abiding principles of justice and equality.   Perhaps more importantly, it has shown that judicial power can be exercised along with democratic government.

Lyle Denniston is the National Constitution Center’s adviser on constitutional literacy. He has reported on the Supreme Court for 55 years, currently covering it for SCOTUSblog, an online clearinghouse of information about the Supreme Court’s work.

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