Chapter 5 – How is the Constitution Interpreted?

Those who put their names in the Constitution understood the enormity of what they were attempting to do: to create a representative democracy, with a central government strong enough to unify a vast, diverse, then and now politically fractious nation; but a government limited enough to allow individual liberty and enterprise to flourish. Well, 213 years later, we can say with thanks, they succeeded. Not only in keeping liberty alive, but in providing a strong, yet flexible, framework within which America could keep moving forward, generation after generation, toward making real the pure ideals embodied in their words.

President Bill Clinton, dedicating the National Constitution Center in Philadelphia on September 17, 2000

It irked President Thomas Jefferson that the Supreme Court in Marbury v. Madison (1803) and other cases had taken upon itself the power to declare acts of Congress unconstitutional. “There is not a word in the Constitution that has given that power to them,” Jefferson fumed in a letter to W. H. Torrance on March 11, 1815, about the Federalist justices who dominated the court in his day, “more than to the executive or the legislative branches.” Since then, other Presidents and congressional leaders have expressed similar outrage over Court rulings that struck down their legislative accomplishments. Liberals and conservatives alike have decried “judicial activism,” whenever rulings went against them. Despite these complaints, the Supreme Court has reserved the final word on whether the actions of the executive and legislative branches comply with the Constitution.

Constitutional law consists of the applications and legal interpretations of the Constitution, as distinguished from statutory law (the acts of Congress) and common law (the precedents established by lower court rulings). Consti­tutional law deals with the government’s legitimate functions and the limits that the Constitution places upon it. The executive and legislative branches constantly address new issues and establish new policies. Because Article III of the Constitution only gives federal courts the power to hear “cases or controversies,” only those persons who have been harmed by a law will have “standing” to challenge it.

An example of the question of “standing” occurred in 1995, when Congress enacted a “line-item veto” that enabled Presidents to veto a single fund­ing item within a larger appropriations bill without having to veto the whole bill. A few members of Congress who had voted against the line-item veto brought suit in the federal courts on the grounds that their legislative “power of the purse” had been diminished. However, a court found that they lacked standing—that is they had not been harmed by the line-item veto—and dismissed their suit. Then President Bill Clinton used the line-item veto to strike out funding that would have gone to New York City, and the courts heard the city’s suit because it did clearly have standing. In Clinton v. City of New York (1998), the Supreme Court struck down the line-item veto as unconstitutional.

Although all federal officers take an oath to uphold the Constitution, they often read that document very differently. Presidents assert powers that they be­lieve the Constitution gives them by implication. Congress enacts laws it deems “necessary and proper” to carry out its constitutional role. Their overlapping powers and responsibilities are an invitation to struggle. “The Constitution was designed to force conflict,” said House Speaker Newt Gingrich in a December 6, 2004, interview on National Public Radio’s Morning Edition. “You elect 100 senators, two per state. They’re not part of the president’s team. They work with the president, not for the president. You elect 435 House members by population; they work for the people who elect them. Then you have the president, who’s elected every four years by the whole country.” And, often the struggle between the executive branch and the legislature involves the President’s nomi­nation of and the Senate’s right to approve or reject judicial appointments, who will interpret the Constitution.

Political parties also play a role in the varying interpretations of the Constitution, even though the Constitution made no mention of them. Those who favor a limited national government and more states’rights have gravitated toward one party, while those favoring a stronger, more active federal government tended toward another. Presidents George Washington and John Adams were identified with the Federalist Party, which tended toward a dominant federal government, but their party lost the Presidency and majorities in both houses of Congress to the Democratic-Republicans, who favored states’ rights, in the election of 1800. This first transfer of power between the parties left only the judiciary under the control of the Federalists, since only Federalist-appointed judges were then serving. President Thomas Jefferson, a Democratic-Republican, then set out to purge the Supreme Court by encouraging his supporters in the House to impeach Supreme Court Justice Samuel Chase. A bitter partisan who never hesitated to speak his mind, Justice Chase struck many of Jefferson’s supporters as lacking a judicial temperament; however, this was hardly an impeachable offense. Jeffer­sonians in the House accused Chase of some minor infractions on the bench, but essentially accused him of having rendering legal interpretations of the law in “an arbitrary, oppressive, and unjust way.” Had these trumped-up charges suc­ceeded in convicting Chase, the Jeffersonians might have also tried to remove Chief Justice John Marshall. However, Justice Chase was acquitted at his Senate trial, discrediting the notion of using impeachment as a political tool.

Within a few years, the Federalist Party crumbled and the United States entered into a period of one-party rule, called the Era of Good Feelings. Al­though unified on the surface, political leaders had sharply different opinions over what the Constitution meant and how the government should operate. The Era of Good Feelings ended with the hotly contested election of 1824, in which Andrew Jackson won the greatest share of the popular vote but lost the election in the House of Representatives to John Quincy Adams. Jackson’s followers created their own party, the Democrats, while his opponents called themselves the Whigs, borrowing that name from the British political party that opposed the king, and supported social reforms in Parliament. In 1828 Jackson won the Presidency and began to spar with the Whigs in Congress—where the majorities fluctuated between Democrats and Whigs.

One of the clashes during this period between the executive and judicial branches dealt with efforts to remove Native Americans from their lands in the East and relocate them west of the Mississippi River. After the discovery of gold on Cherokee lands, the state of Georgia refused to recognize the Cherokees as a sovereign nation and opened tribal lands to white settlers. The Cherokees ap­pealed to the courts, and in the case of Cherokee Nation v. Georgia (1832), Chief Justice John Marshall upheld their rights. President Jackson, who disagreed with the Court’s order, refused to carry it out. “John Marshall has rendered his deci­sion,” Jackson supposedly said, “now let him enforce it.” Jackson instead sup­ported the Indian Removal Act, which paid the tribes for their land in the East and relocated them to new territory in the West. In 1838 the U.S. Army carried out that act and forcibly evicted the Cherokees who had resisted, sending them on the Trail of Tears to Oklahoma, so named because so many Cherokees died on the rugged journey.

Slavery also became a political and constitutional question. The question of whether slavery should be allowed to spread into the newly acquired western territories split apart the existing parties and encouraged the creation of the new Republican Party.When Abraham Lincoln became the first Republican to be elected President, eleven Southern states seceded from the Union out of concern that Lincoln would prevent the extension of slavery into the West, and perhaps move to abolish it completely. Lincoln denied being an abolitionist. Although he opposed the spread of slavery, he believed that the Constitution protected slaveholding where it already existed. During the Civil War, Lincoln signed an executive order known as the Emancipation Proclamation that freed people enslaved in territories under insurrection against the federal government. This act did not free anyone in the border states that had remained within the Union. Not until after the South was defeated did the Thirteenth Amendment abolish slavery entirely.

After Lincoln’s assassination, in the period of Reconstruction that followed the war, Congress fought fiercely with President Andrew Johnson over how to treat the defeated southern states. Johnson believed in carrying out Lincoln’s lenient policies, while congressional Republicans preferred a much tougher stance designed to protect the newly freed African Americans in the South. To prevent the President from dismissing cabinet officers sympathetic to the congressional Republicans, the Tenure of Office Act in 1867 required Senate approval to remove a cabinet officer, just as the Senate needed to confirm appointments. Presi­dent Johnson called the act unconstitutional and defiantly fired his secretary of war, Edwin Stanton. The House of Representatives impeached Johnson for this action and related issues in 1868. At his Senate trial, Johnson came within one vote of being removed from office. Congress later repealed the Tenure of Office Act, and in 1924 the Supreme Court belatedly confirmed the President’s right to remove executive branch appointees.

As a condition for being readmitted to the Union, the North required the southern states to ratify the Thirteenth, Fourteenth, and Fifteenth Amendments to the Constitution, known as the Reconstruction Amendments. On the surface, the amendments provided African Americans with citizenship, equal protection of the laws, and the right to vote. But, the language of the amendments, especially the sweeping nature of the Fourteenth Amendment, opened wide new areas for Congress to legislate and for the Court to interpret.

As the United States became a more industrial nation, the Supreme Court recognized the rights of corporations as “persons” under the Fourteenth Amend­ment and struck down efforts by the state and federal governments to regulate business as a violation of the amendment’s guarantee that no state shall “deprive any person of life, liberty, or property, without due process of law.” It would take another half century before the Supreme Court revised its interpretation of the amendment to permit laws that prohibited child labor, protected women workers, and set minimum wages for workers in general. Increasingly, the courts also used the Fourteenth Amendment to apply the restrictions and guarantees of the Bill of Rights to the states as well as to the federal government, using it to interpret laws related to voting and the rights of aliens and of criminal defendants. As the American industrial society developed, the federal courts changed their positions, becoming more tolerant of Presidential and legislative efforts to experiment with new means of protecting and improving the public welfare.

For the most part, the judicial branch has resisted intervening in the internal operations of the Congress. In the 1920s, when the Senate held highly publicized investigations into executive branch corruption, the Supreme Court confirmed the right of Congress to call any witnesses, even those who were not government officials, and to investigate anything remotely related to its legislative functions. Drawing on this authority, in the 1930s, congressional committees aggressively investigated the economic conditions that contributed to the Great Depression, the use of business lobbyists to shape legislation, and other issues.

After the Second World War, committees in both the House and Senate held sensationalized hearings into alleged Communist infiltration and subversion of government agencies. They subpoenaed numerous witnesses who had little connection with the government and interrogated them about their past political beliefs and activities, particularly any involvement with the Communist Party. The Supreme Court eventually concluded that these practices had overstepped constitutional bounds. In Watkins v. United States (1957) the court insisted that an investigative committee had to demonstrate a legislative purpose to justify its probing. The Supreme Court further ruled that the Bill of Rights applied fully to all witnesses before Congress.

Justice John Marshall Harlan Dissents

The highest courts in some countries issue rulings without indicating what the votes of the justices were, or publishing dissenting opinions. The U.S. Supreme Court, by contrast, identifies how the justices voted and allows the majority to explain its rationale and the dissenters to explain their objections. As social thinking and public opinion change over time, however, these dissenting opinions may eventually prevail.

In the late nineteenth century, many southern states passed laws, called Jim Crow laws, requiring racial segregation in schools, transportation, and other public accommodations. African Americans sued on the grounds that these Jim Crow laws violated their civil rights under the Fourteenth Amendment’s guarantee of equal protection of the laws. When the African American Homer A. Plessy refused to leave the first-class compartment of a train in Louisiana, for which he had purchased a ticket, he was arrested and convicted of violating state law. The case went to the Supreme Court, which, in Plessy v. Ferguson (1896), decided that racial separation was constitutional so long as both races were treated equally, this became known as the doctrine of separate but equal. Justice John Marshall Harlan vigorously dissented from that opinion, arguing that “the thin disguise of ‘equal’ accommodations . . . will not mislead anyone, nor atone for the wrong this day done.”

Born in Kentucky, Justice Harlan had fought in the Union Army during the Civil War. President Rutherford B. Hayes, who had served as a Union general nominated him to the Supreme Court in 1877. A strong advocate of civil rights and civil liberties, Justice Harlan consistently argued in favor of a color-blind Constitution that would equally protect all citizens, black and white, and argued that Congress had the authority under the Fourteenth Amendment to protect the rights of African Americans. Although Justice Harlan was far out of step with his times, his arguments won favor with later generations. After the Supreme Court allowed segregation, in general, to continue for another half century, it voted unanimously in the case of Brown v. Board of Education of Topeka, Kansas (1954) to strike down segregation in public schools. Regardless of whether equal facilities were provided, the court now decided, segregation was inherently unequal because it created feelings of inferiority in those who were being segregated. Although he had died forty years earlier, Justice Harlan’s reasoning had finally prevailed.

The civil rights movement for racial equality also pressed the various branches of the federal government to readjust their thinking. Since its 1896 ruling in Plessy v. Ferguson, the Supreme Court had tolerated racial segregation as long as all races were treated equally. In the 1954 case of Brown v. Board of Education, the Supreme Court reversed itself and found that segregated schools violated the constitutional ideal of equal treatment. Concluding that “separate but equal” facilities had been, in reality, grievously unequal, the Court ordered school integration “with all deliberate speed.”

Some southern states resisted this order, and when the governor of Arkansas refused to protect African American students trying to attend a previously all-white high school, President Dwight D. Eisenhower sent in the National Guard to ensure the students’ safety. When the state of Arkansas asserted that it had not been a party to the Brown v. Board of Education case and therefore was not bound by the Court’s decision, the Supreme Court responded unanimously. In the 1958 case of Cooper v. Aaron the Court ruled that it would tolerate no resistance to its judicial authority.

While the courts struck down segregation in schools, Congress enacted legislation to require racial integration in all forms of public transportation and accommodation. The legislation passed the House of Representatives but encountered a filibuster in the Senate. Opponents of the legislation conducted the longest filibuster in the Senate’s history, from March until June 1964, until a coalition of Democrats and Republicans gained enough votes to invoke cloture and shut off the debate. The Civil Rights Act of 1964 then won speedy passage.

The Supreme Court’s reversal of its stand on segregation marked the beginning of a dramatic shift in the Court’s outlook. Chief Justice Earl Warren’s dramatic rulings struck down traditionally sanctioned behavior as unconstitutional. Warren believed that the Supreme Court itself had contributed to national problems by not taking bolder action in the past. He pointed out that for most of the twentieth century, the population of the United States had been shifting from rural to urban areas, but state legislatures had not been redistricted to reflect these changes, and the courts had not objected. “Because of its timidity, it made change hopeless,” Warren wrote in his memoirs about the Supreme Court before his tenure. “It refused to enter, or to permit lower federal courts to consider, any litigation [or lawsuits] seeking to remedy unequal apportionment.” The justices had not intervened because they saw reapportionment as a political question best handled by the politicians. But the Warren Court, in the 1962 case of Baker v. Carr insisted that all legislatures must be reapportioned to guarantee one person, one vote.

Justice William J. Brennan Jr., who served on the Supreme Court from 1956 to 1990, promoted the idea of a “living Constitution,” in which legislators and federal judges adapted the Constitution “to cope with current problems and cur­rent needs.” For example, Justice Brennan believed that even though the death penalty had existed when the Constitution was adopted, it had become “cruel and unusual punishment” by modern values and could, therefore, be declared un­constitutional. Justice Brennan’s arguments had a profound impact on the way the Court dealt with such issues as voting rights, free speech, and the separation of church and state. A liberal in outlook, Brennan believed that the Court should promote broader notions of opportunity, liberty, equality, and human dignity.

The powers of the legislature are defined and limited; and that those limits may not be mistaken, or forgotten, the constitution is written . . . The distinction between a government with limited and unlimited powers, is abolished, if those limits do not confine the persons on whom they are imposed, and if acts prohibited and acts allowed, are of equal obligation.

Chief Justice John Marshall, Marbury v. Madison (1803)

Conservatives countered this notion of a “living Constitution” with an insis­tence that the courts should limit their rulings to the original intent of the framers of the Constitution. Justice Antonin Scalia, who joined the Supreme Court in 1986, called himself an “originalist.” At a conference in 2005, he declared that “the Constitution is not a living organism, for Pete’s sake; it’s a legal document and like all legal documents, it says some things and it doesn’t say others.” He explained that he did not mean that the Constitution has to be interpreted strictly, but it needs to be interpreted reasonably. “I do believe you give the text the meaning it had when it was adopted.” Justice Scalia dissented in the case of Roper v. Simmons (2005), which banned the execution of convicted criminals less than eighteen years old. He reasoned that because minors could be executed in 1787, it was still constitutional. He used the same reason for disagreeing with Roe v. Wade (1972), which permitted abortions, arguing that abortion was largely illegal when the Fourteenth Amendment was first adopted.

Those who argue for “original intent,” say that the courts should leave social change to elected officials who can pass laws or introduce constitutional amendments to bring about such changes. President George W. Bush pledged to appoint judges who would not try to “legislate from the bench,” that is, who would apply the law as written and leave policy decisions to the politicians. By this, Bush meant that he intended to appoint neutral, apolitical, but ideologically conservative judges. Yet, those who spoke for a “living Constitution” pointed out that conservative justices have been just as likely to overturn legislation as liberals, although for different reasons.

The debate between “original intent” and a “living Constitution” has taken place essentially between those who view the Constitution as a limit on the powers of government and those who believe that the Constitution is flexible enough to cover modern contingencies without frequent amendment. Senator Barry Goldwater insisted in his 1960 book The Conscience of a Conservative that “the Constitution is what its authors intended it to be and said it was—not what the Supreme Court says it is.” Justice Brennan responded that the Constitu­tion should not be judged in terms of “a world dead and gone,” but that judges should apply the Constitution’s basic principles to modern problems. Justice Thurgood Marshall, the first African American to serve on the Supreme Court, from 1967 to 1991, commented that he did not accept the notion that the Philadelphia convention had forever “fixed” the Constitution. Instead, he believed that the compromise with slavery had made a government that was “defective from the start” and it took a civil war, a civil rights movement, and several constitutional amendments to develop a federal system that respected the individual rights and freedoms of all its citizens. Yet, Marshall appreciated the progress that the United States had made over the past two centuries, and at the time of the Constitutional bicentennial in 1987 he said that he would “celebrate the bicentennial of the Constitution as a living document, including the Bill of Rights, and other amendments protecting individual freedoms and human rights.”

This debate has taken place against the backdrop of major clashes between the branches of the federal government. The Vietnam War and the Watergate scandal helped further refine interpretations of the Constitution. In 1971, the Supreme Court upheld the right of the New York Times and other newspapers to publish classified government documents on how the United States had gone to war in Vietnam, despite the government’s protests that the “Pentagon Papers” jeopardized national security.

After five men were arrested while breaking into the Democratic National Committee offices in the Watergate building to plant eavesdropping devices in 1972, evidence mounted that implicated members of President Richard Nixon’s administration. The Senate appointed a special committee to investigate these allegations, and during its hearings the committee learned that President Nixon had been secretly tape-recording his conversations in the White House. The committee subpoenaed the tapes, but Nixon resisted, citing executive privilege. The case went to the Supreme Court, where eight of the nine justices, including those he had appointed, ruled that executive privilege did not cover evidence in a criminal case. (The decision was still unanimous as Justice William H. Rehnquist recused himself as a former official in the Nixon Justice Department.) The forced release of the tapes provided evidence that President Nixon had participated in a cover-up of the crime, forcing his resignation. The outcome of the Watergate scandal demonstrated that no one, not even the President of the United States, is above the law.

Following Watergate, Congress reasserted much of the authority it had lost to the Presidency over past decades. Sparring between the President and Con­gress grew more intense, particularly over the appointment of judges. In 1987, the Senate rejected President Ronald Reagan’s nomination of Robert Bork to the Supreme Court. Although the former law professor and judge had extensive experience, liberal Democrats, who held the majority in the Senate, complained that his conservative ideology was beyond the mainstream. Bork’s defeat was followed by accusations on both sides that political “litmus tests” were being applied to nominees, whose nominations and confirmations often depended on how they stood on the most controversial issues of the day, rather than their legal qualifications.

It is obvious, that there can be no security to the people in any constitution of government, if they are not to judge of it by the fair meaning of the words of the text.

Justice Joseph Story, Commentaries on the Constitution of the United States, (1833)

The Fight Over the Watergate Tapes

A mighty struggle took place between all three branches of the government over the release of President Richard M. Nixon’s secret tape-recordings. This struggle tested the separation of powers, with the Congress, a special prosecutor, and the President disagreeing over the release of the tapes and the Supreme Court deciding among them.

In 1973, a special committee of the Senate was investigating irregularities in the previous year’s Presidential campaign. Men associated with the Committee to Reelect the President had been arrested while breaking into Democratic National Committee headquarters at the Watergate building in Washington, D.C., in order to plant listening devices. The Senate Watergate Committee called various White House officials to testify, and one of them admitted that the President had secretly tape-recorded his own conversations in the Oval Office. The Committee immediately sought access to the tapes, but President Nixon refused to provide them on the grounds that the information they contained was covered by “executive privilege.” The President argued that in order for the officers of the executive branch to make internal decisions and weigh policy choices they are entitled to keep internal discussions private and should not have to provide them to Congress or the courts. Although President Nixon later agreed to provide edited transcripts of selective tapes, he effectively stonewalled the committee’s request.

At the same time, Archibald Cox, a special prosecutor looking into the Watergate break-in sought access to the tapes. President Nixon not only refused to comply but also fired Cox. Public opinion was so outraged over his action that Nixon eventually bowed to public pressure and appointed another special prosecutor, Leon Jaworski. Jaworski also demanded the tapes, taking his case to the U.S. Supreme Court. In Nixon v. United States (1974), the Court ruled 8-to-0 that executive privilege did not cover evidence needed for criminal prosecution. (Justice William Rehnquist did not participate because he had been previously involved in the case while he served in the Justice Department.) The Court ordered the President to turn the requested tape recordings over to the special prosecutor, which he did. One of these recordings, known as the “smoking gun,” gave evidence that the President had been personally involved in a coverup of the Watergate burglary. With that revelation, Congress moved to impeach the President, who chose to resign from office instead.

Our Constitution was not written in the sands to be washed away by each wave of new judges blown in by each successive political wind.

Justice Hugo L. Black, dissenting opinion, Turner v. United States (1970)

Changes in the political parties created further tensions. For most of the twentieth century, both the Democratic and Republican Parties had been internally divided between liberals, moderates, and conservatives. As a result, there were few straight party-line votes in Congress, as bipartisan coalitions of con­servatives voted against similarly bipartisan coalitions of liberals. By the 1990s, the two parties had grown far more internally cohesive. In Congress, the party members stuck together until almost every vote became a party-line vote, with the balance occasionally tipped one way or the other by a small number of moderates who forged compromises.

In 1994, Republicans won control of both houses of Congress and positioned themselves against the Democratic President Bill Clinton. A dispute between the President and Congress over federal funding in 1995 led to a brief shut-down of government agencies. The Senate also opposed many of Clinton’s more liberal judicial nominees and appointments to key governmental positions. When a special prosecutor brought charges that Clinton had lied to a grand jury about his inappropriate relationship with a White House intern almost all the Republicans in the House of Representatives voted to impeach the President, while almost all the Democrats voted against impeachment. The Senate held a trial, where the vote fell far short of the two-thirds needed to convict the President and remove him from office.

During the Presidency of George W. Bush, a conservative Republican, liberal Democrats filibustered to block the confirmation of a number of his judicial nominees. Republicans in the Senate protested that the Constitution required only a majority vote for nominations and that all nominees deserved an “up or down” vote, that is, a vote in favor or against without obstruction. The intensity of the struggle testified to how seriously the executive and legislative branches take lifetime appointments to the independent judiciary, which has the final word in interpreting our Constitution.