^ Mr. Justice Brennan, the judicial voice of Expansionism : “the Constitution is for the little guy”

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It is time to bring into the argument over Judge Gorsuch the name of that great voice of Constitutional expansionism, Justice Brennan, who served on the Court from 1956 to 1990.

Much has been made, during the hearings concerning the President’s nomination of Judge Neil Gorsuch to the Supreme Court seat now vacant, of the Constitutional jurisprudence known as “originalism.” In a column that I posted at this blog about six months ago, I tried to explain what “originalism” means and why it must be taken very seriously as a means of interpreting the Constitution. (If you would like to read my presentation, you can do so here :  https://hereandsphere.com/2017/02/01/the-gorsuch-comination-and-its-political-consequences/?frame-nonce=cc802aa8bd )

Originalism is not, of course, the only major tradition of Constitutional interpretation. In Sunday’s Boston Globe, Professor Mary Bilder argued a case for Constitutional law quite opposite. In her view, the long negotiations that led through several drafts before a final version of the Constitution was agreed to suggest that for the Framers, the meanings of the various clauses therein were pretty much ad hoc — good for the moment but hardly binding upon future situations unforeseeable and unknowable. She argues that the Constitution can be altered in an equally ad hoc way as circumstances seem to require.

I find her view radical in application and unsupportable in fact. Negotiations precede almost every agreement; they lead up to every contract. In the law of cases and controversies, settlement negotiations, and their terms,. are inadmissible as evidence, and the reason for that is obvious : unless agreed to, the various proposals made in negotiation are nothing but a suggestion — no agreement is attached to them at all until they are actually agreed to, at which point a suggestion becomes an enforceable agreement. It is certainly helpful to examine the Framers’ negotiations as an aid to discerning what their actual agreements meant; but it subverts the entire notion of agreement to claim that suggestions made during discussion can be imported into the agreement itself.

We need not credit Professor Bilder’s overreach. A case for an ezxpansionist view — Justice Brennan’s view, the view that there is judicial urgency particular to an actual case — and that this urgency cannot be argued away by recourse to textual analysis — of the Constitution can be made within the four corners of the document itself.

The Constitution grants to Congress power to do many things in the future, things left as general as feasible:

“The Congress shall have power

• To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common defence^{[note 1]} and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;
• To borrow Money on the credit of the United States;
• To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;
• To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States;
• To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures;
• To provide for the Punishment of counterfeiting the Securities and current coin of the United States;
• To establish Post Offices and post Roads;
• To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;
• To constitute Tribunals inferior to the Supreme Court;
• To define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations;
• To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;
• To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;
• To provide and maintain a Navy;
• To make Rules for the Government and Regulation of the land and naval Forces;
• To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;
• To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;
• To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings;—And
• To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.” 

  I call your attention especially to the last clause. None of the Laws which the Constitution empowers Congress to make is named or spelled out. Only the purpose is given. The same is true of the famous Preamble statement that the agreement is made “to provide for the General Welfare.” And what could possibly be the point of constituting “tribunals inferior to the Supreme Court,” if not to give a forum for disputes arising from the powers herein granted ? And on what basis could such Courts adjudge such disputes if not by interpreting the powers being disputed ? So it actually fell out during the next 30 years, until the fact of Constitutional interpretation became fully established and agreed to.

Thus we see that the Constitution itself, as agreed to, witho0ut having to import into it potential clauses that were NOT agreed to, offers interpreters a basis for applying its covenants to events well into the future and far beyond the lives or foresight of any or all the Framers.

Furthermore, the Constitution has been amended; and those amendments have equal standing with the original document because they have been adopted in accord with a procedure agreed to. Yet why amend the Constitution, rather than merely reapply it ad hoc ? And, conversely, why do not every Constitutional dispute require amendment to settle ? Here we see two contrasting principles which Professor Bilder do0es not discuss. On the one hand, amendment has been necessary, or felt to be necessary, in cases when the Supreme Court has held a proposed law to contravene the Constitution, or when the amendment in question clearly altered a precept in the original agreement (such as female suffrage, or the two term limit for President). Yet major Supreme Court decisions — as well as those that required an amendment to change — have changed what successive generations had thought the Constitution to require; and the only way in which those Court decisions can operate is by changing Constitutional assumptions.

Some such changes have been seen by many as an overreach: but for the most part that’s because those who see overreach have had their own, contrary assumptions about the document — assumptions that have no more claim to being clear than the interpretations given by the Court.

The difficult here cannot be willed away. The Framers did not specify rights of privacy, or abortion, or contraception, not because they opposed these, or sanctioned them, but because (1) they did not exist and (2) had they existed, they may well have been seen as too specific to command explicit mention in the general language that pertains throughout the Constitution. Again I would argue that the general nature of Constitutional covenants anticipates that future disputes are both foreseen and not to be prejudged; and that only basic principles are to be maintained when such unpredict6ed disputes come to the judging table.

The Constitution exists to provide everybody subject to it a path to embrace it and to be bettered, civically, by it. The framers did not — could not — know who the people would be who their agreement was intended to bind, and the language of their agreement contains within itself that invitation to embrace the unanticipated : unexpected people and unimagined events; and it is for today, the day of judging, that a judgment must apply these words that invite — even beg for — sensible elucidation.

—- Mike Freedberg / Here and Sphere