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From the Bench: The Constitutional Statesmanship of Chief Justice William Rehnquist

Thursday, March 8th, 2018

“To preserve liberty, they created a system of federalism with dual national and state sovereigns. And, furthermore, within the new national government, they separated the legislative, executive, and judicial powers. As William Rehnquist later stated, the framers devised two critical innovations for the new national government: a president who is independent of and not selected by the legislative branch and a judiciary that is independent of both the legislative and executive branches.

It is sometimes said that the Constitution is a document of majestic generalities. I view it differently. As I see it, the Constitution is primarily a document of majestic specificity, and those specific words have meaning. Absent constitutional amendment, those words continue to bind us as judges, legislators, and executive officials.

And if I can be so bold as to suggest an initial homework assignment from my talk today, it is this: In the next few days, block out 30 minutes of time and read the text of the Constitution word for word. I guarantee you’ll come away with a renewed appreciation for the Constitution and for its majestic specificity.

We revere the Constitution in this country, and we should. We also, however, must remember its flaws. And its greatest flaw was the tolerance of slavery. That flaw cannot be airbrushed out of the picture when we celebrate the Constitution. It was not until the 1860s, after the Civil War, that this original sin was corrected in part, at least on paper, by ratification of the 13th, 14th, and 15th Amendments to the Constitution.

But that example illustrates a broader point as well. When we think about the Constitution and we focus on the specific words of the Constitution, we ought to not be seduced into thinking that it was perfect and that it remains perfect. The Framers did not think that the Constitution was perfect. And they knew, moreover, that it might need to be changed as times and circumstances and policy views changed.

And so they provided for a very specific amendment process in Article V of the Constitution. The first 10 amendments, as we all know, came very quickly after the new Congress met in 1789. And those amendments were ratified in 1791. The 11th and 12th Amendments followed soon thereafter, and that process has continued.

Indeed, the amendments have altered fundamental details of our constitutional structure. The 12th Amendment changed how presidents and vice presidents are elected. The 22nd Amendment changed how long presidents can serve. The 17th Amendment altered how the Senate is selected, changing it from a body selected by state legislatures to a body directly elected by the people. The 13th, 14th, and 15th Amendments altered the autonomy of the states and created new constitutional rights and protections for individuals against states.

Many think we could use a few more constitutional amendments: term limits for Supreme Court justices, term limits for members of Congress, an equal rights amendment, a balanced budget amendment, abolition of the death penalty. Different people have different views. But here, as elsewhere, the Constitution already focused on the specific question that lies at the foundation of this and so many other constitutional disputes: Who decides?

In this instance, the question is this: Who decides when it is time to change the Constitution? Who decides when it is time to create a new constitutional right or to eliminate an existing constitutional right or to alter the structure of the national government? The Constitution quite specifically tells us that the people decide through their elected representatives. An amendment requires the approval of two-thirds of both houses of Congress as well as three-quarters of the states.

But the amendment process is slowed in part because it is so difficult to garner the congressional and state consensus needed to pass constitutional amendments. Because it is so hard, and because it is not easy even to pass federal legislation, pressure is often put on the courts and the Supreme Court in particular to update the Constitution to reflect the times.

In the views of some, the Constitution is a living document, and the Court must ensure that the Constitution adapts to meet the changing times. For those of us who believe that the judges are confined to interpreting and applying the Constitution and laws as they are written and not as we might wish they were written, we too believe in a Constitution that lives and endures and in statutes that live and endure. But we believe that changes to the Constitution and laws are to be made by the people through the amendment process and, where appropriate, through the legislative process—not by the courts snatching that constitutional or legislative authority for themselves.

 

To read Judge Kavanaugh’s entire Constitution Day Lecture, click here.

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A note about the Walter Berns Constitution Day Lectures:

In mid-September 2011,  AEI’s Program on American Citizenship celebrated Constitution Day (September 17), the day thirty-nine members of the Constitutional Convention signed the draft constitution. In conjunction with that remembrance, we thought it appropriate to honor our longtime colleague and friend Walter Berns with a panel dedicated to discussing his scholarship on the Constitution and the American regime it supports.

At the event, AEI president Arthur Brooks announced that henceforth the Citizenship Program’s annual Constitution Day celebration will be named in honor of Walter Berns in appreciation of his scholarly legacy in this field and his many years of contributing to the work of the American Enterprise Institute as a resident scholar.

AEI