Stanley Fish on education, law and society.

It’s Supreme Court nomination time again, which means that it will soon be nomination hearing time, which means that Elena Kagan will soon be asked how she believes the Constitution should be interpreted. But just in time comes a new book — “The Living Constitution,” by David A. Strauss — that tells us not to bother about that question because, odd though it might seem, the Constitution does not play a central role in constitutional interpretation.

In the majority of instances, Strauss argues, “the text of the Constitution will play, at most, a ceremonial role.” Even “when a case involves the Constitution, the text routinely gets no attention,” for “on a day-to-day basis, American constitutional law is about precedents, and when precedents leave off, it is about commonsense notions of fairness and good policy.”

Although rhetorically we have a constitutional legal system — one constrained by a command given in the past and embodied in a sacred text — in fact, Strauss contends, we have a common-law legal system “built not on an authoritative, foundational . . . text,” but out of “precedents and traditions that accumulate over time” and serve as a constraint on “transient public opinion.”

To some extent, Strauss is right. Day to day the courts view (and configure) the facts and issues of a case in the light of previously established “landmark” decisions; the words of the Constitution are often not invoked. At least descriptively, the history of constitutional interpretation would seem to proceed as Strauss says it does, by a process of “evolutionary accretion” and not by an act of fidelity to an original intention, that is, to an intelligent design.



But the fact that in many cases the Constitution is not explicitly the reference point and motor of deliberation doesn’t mean that deliberation is not being guided by it at a remove. And that is exactly what is going on in the area of law Strauss cites in support of his thesis — the First Amendment. “The American law of freedom of expression,” he declares, “does not emerge from the text of the U.S. Constitution or from the original understandings.” His example is the appearance in an opinion by Justice Oliver Wendell Holmes Jr. of the phrase “clear and present danger.”

Although these words are not in the Constitution, they have been, says Strauss, “far more important in the development of the law than have the actual words of the First Amendment.” It was, explains Strauss, the “clear and present danger doctrine” and “not the adoption of the First Amendment” that initiated a series of cases that led in time to “the distinction between advocacy of ideas and advocacy of action,” a distinction also not “derived . . . from the text . . . of the First Amendment.”

Why is Strauss trying to take the Constitution out of the constitutional interpretation loop?

This is simply wrong. Like everything else in the sequence Strauss rehearses, the distinction between advocacy of ideas and advocacy of action is the product of an effort to figure out what it means to not make a law “abridging the freedom of speech.” Abridging freedom of speech is a notion in need of explication. When exactly does it happen? What exactly is speech in the context of the amendment’s prohibition?

It can’t be that constitutional protection is granted to any verbal production whatsoever, for some words — like those that directly incite riot or perform treason — are not speech within the meaning of the amendment. How do we know that? As Strauss repeatedly observes, the First Amendment’s text doesn’t tell us. We have to figure it out and we do so by asking what it is that they had in mind when they singled out speech for protection. What did they fear? What did they hope for? The standard answers to those questions are, they feared the censoring and criminalizing of dissident speech, and they hoped for free and open discussion of matters of public concern.

In short, they wanted to protect the expression of ideas, but not expressions like “incitement to riot” and “treason,” which are indistinguishable from action. And thus they wanted (or would have wanted, had they been asked) to withdraw protection at the point where speech crossed the line and became action in a way that constituted a clear and present danger. So these phrases and distinctions (along with a great many others), while not named in the amendment, are implied by it, implied by the special concern for speech and therefore, despite what Strauss says, are derived from it. What looks like “evolutionary accretion” — self-generating, self-modifying, immaculate in conception — is, in fact, the unpacking, by succeeding generations, of a text recognized as authoritative and binding. The question is not, as Strauss would have it, is this proffered meaning in the Constitution? The question is, can a chain of inference be formed that links this meaning to something the framers can be said to have intended?

Why is Strauss trying to take the Constitution out of the constitutional interpretation loop? Because he wants to liberate us from it as a constraint. He repeatedly invokes Thomas Jefferson’s remark that “The earth belongs to the living and not the dead” and expands it into a question: “What possible justification can there be for allowing the dead hand of the past . . . to govern us today?”

That is like asking what justification is there for adhering to the terms of a contract or respecting the wishes of a testator or caring about what Milton meant in “Paradise Lost” or paying serious attention to the items on the grocery list your spouse gave you. In each of these instances keeping faith with the past utterances of an authoritative voice — the voice of the contracts’ makers, the voice of someone’s last will and testament, the voice of the poet-creator, the voice of the person who will make the dinner — is constitutive of the act you are performing. And not keeping faith raises the question of why we should bother with the Constitution or the contract or the will or the poem or the list at all. Why not just cut out the middleman (who is not being honored anyway) and go straight to the meanings you want?

Strauss has an answer to that question: “The written Constitution is valuable because it provides a common ground among the American people.” But as it turns out, common ground is provided not by the Constitution itself but by a survey of “widely acceptable” meanings, which are then attributed to the Constitution as if it were their source. The text, Strauss advises, “should be interpreted in the way best calculated to provide a point on which people can agree.” The way to do this, he adds, is to give the words of the Constitution “their ordinary current meaning — even in preference to the meaning the framers understood.” After all, “the original meaning might be obscure and controversial.”

This is an amazing statement. The Constitution becomes common ground when it becomes a vessel for meanings it does not contain. It acts as a binding agent as long as you don’t take it seriously but take care to pretend that you do. As long as an interpretation of the Constitution “can plausibly say that it honors the text, the text can continue to serve the common ground function.”

What text? Not the text of the Constitution, which has been replaced by a “plausible” facsimile of it. There is a definite strain in Strauss’s argument here as he continues using a vocabulary — text, Constitution, interpretation — that he is at the same time undermining. You don’t interpret a text by looking for meanings people would find agreeable. You interpret a text by determining, or at least trying to determine, what meanings the creator(s) had in mind; and the possibility that the meanings you settle on are not ones most people would want to hear is beside the interpretive point.

The incoherence of what Strauss is urging is spectacularly displayed in a single sentence. Given the importance of common ground, “it makes sense,” he says, “to adhere to the text even while disregarding the framers’ intentions.”

I am at a loss to know what “adhere” is supposed to mean here. According to the dictionaries, “adhere” means “to stick fast to” or “to be devoted to” or “to follow closely.” But you don’t do any of these things by “disregarding” the intentions that inform and give shape to the text you claim to “honor”; you don’t follow closely what you are in the act of abandoning. Instead, you engage in a fiction of devotion designed to reassure the public that everything is on the (interpretive) up and up: “The Court could take advantage of the fact that everyone thinks the words of the Constitution should count for something.” Here “something” means “anything,” as long as it hooks up with what everyone thinks; and the advantage the Court is counseled to seize is an advantage gained by pandering. If this is what the “living Constitution” is — a Constitution produced and reproduced by serial acts of infidelity — I hereby cast a vote for the real one.