Introduction
There’s a way that we academics talk about constitutional interpretation that suggests it to be more than it turns out to be. We speak of it as if the Court decides cases through elaborate (sometimes more, sometimes less) chains of reasoning. As if it were a Socratic dialog, with the author inviting the reader to the seven steps necessary to see why the conclusion follows.
But constitutional interpretation is much more pedestrian and much more contingent. Whether the justices are reaching for particular results or not, opinions rarely move far beyond what the context of the decision offers up. There’s a set of views taken-for-granted, at least by the majority, in a particular context; the opinion leverages those views to move the law one or two steps from where it starts. These taken-for-granted views include of course views about other parts of the law. But importantly for the purposes of this book, they include views of much more than the law. In particular, they include views about what’s technologically feasible, or morally acceptable, or culturally done.
Think of constitutional interpretation as a game of Frogger—the old video game in which the player has to jump a frog across the road and avoid getting run over by passing cars. In particular, think of the level where the frog also has to cross a river by stepping onto logs as they pass by. The frog can’t simply pick up and move to the other side of the river. Instead, the frog moves one step at a time, as the opportunity for a move presents itself. The player doesn’t create the opportunity for a move. He simply finds himself with it, and he takes it, and waits for the next.
In this picture of constitutional interpretation, the critical bits are these opportunities for a move, a single move, provided by an interpretive context that the interpreter only slightly, if at all, can affect. (Of course in Frogger, he can’t affect them at all.) These moves get presented to the interpreter; they get constituted by the parts of an interpretive context that at least five justices treat as taken-for-granted, as obvious, as the stuff no one, or at least no one like them, needs to argue about. And it is in light of changes in this class of taken-for-granteds that change in constitutional law can happen.
This dynamic helps show why predicting the future in constitutional law is so difficult. The challenge is not that we can’t describe all the elements the future will or could have. The difficulty is that we can’t know which elements will be obvious. For the critical, yet wholly under-theorized, bit to constitutional interpretation is not what the interpreters might argue about. It is the things that they take for granted. Constitutional meaning comes just as much from what everyone knows is true (both then and now) as from what the Framers actually wrote. Yet “what everyone knows is true” changes over time, and in ways that it is impossible to predict, even if quite possible to affect.
Take an obvious example: The Constitution says: “The executive Power shall be vested in a President of the United States of America. He shall hold his Office during the Term of four Years.”
It is unquestioned that “he” in this clause does not just mean “he” — unquestioned, at least, for us. For us, “he” means “he” or “she.” For the Framers, it would have been unquestioned that “he” just means “he.” It would have been unthinkable that Dolly Madison could have been President of the United States, or any other woman for that matter. Part of that unthinkability was tied to specific legal disabilities. But much more important was a broad and general understanding within the framing context — stuff that they took for granted, and the opposite of the stuff that we take for granted. And not just in the framing context. Opponents of the 14th Amendment argued that by its terms the amendment would radically remake the rights of women. Supporters of the 14th Amendment called the claim absurd. And maybe it was, until the Supreme Court actually did apply the Amendment to claims made by women, again because it was unthinkable that it would not.
The practice of constitutional interpretation, or at least, any practice aiming at fidelity, must include an understanding of the sort of issues, or matters, that the authors took-for-granted. These elements must be understood because they mark the things the authors didn’t think it necessary to express: these were the things that everyone knows to be true — for example, the place of women in society, the salience of “certain unalienable rights,” the role of the law of nations, and so forth. To read what they wrote, and understand its meaning, thus requires understanding what they didn’t write, and how that also helps constitute their meaning.
We know how to identify these taken-for-granteds about the past, if imperfectly and incompletely. History teaches some methods. They include accounts of the interpretive contexts, descriptions of the sort of issues that no one debated, and actions that reveal at least what no one was embarrassed to reveal. If someone had said to Hamilton, “Why aren’t there any women in Washington’s Cabinet?” he wouldn’t have been embarrassed by the question. He wouldn’t have understood it. That marks the disability attached to women as a fact of a certain kind. It went unmentioned, since it was not necessary to mention, since no one (among the authors at least) would have thought to dispute it.
But we don’t know how to identify these taken-for-granteds with the future. We can talk about what sort of things will be obvious in 2030. I’m confident the equal status of women is not about to be drawn into doubt. And I’m also confident that the right of people to worship whatever god, or no god at all, will also remain as bedrock within our tradition. But a whole host of other issues and questions and beliefs will also be taken-for-granted then. And it would take a novelist with the skill of Tolstoy or Borges to fill out the details necessary for us to even glimpse that universe of uncontested truth, let alone to convince us of it.
Even then, it wouldn’t feel uncontested to us. If a complete description of the world in 2030 would include the fact that most everyone accepted cloning as a necessary means to health (as many science fiction stories depict, for organ banking, for example), we would still experience that “fact” as something to be challenged, or at least, questioned. I’m not even sure how to describe the mental state we would have to be able to adopt to be able to relate to the uncontested of the future the way the uncontested of the future would be experienced. It would be a possibility, or a scenario. But it wouldn’t have the force necessary to bend, or alter, the law the way it will, when it is in fact taken-for-granted by those who read.
Until we could come to reckon these different taken-for-granteds, I want to argue, we can’t predict how constitutional interpretation in the future will proceed. It will follow the logs offered to the frog, but we can’t know which logs will present themselves when.
Take as an example the recent decision by the Supreme Court in Citizens United v. FEC,[1] upholding a constitutional right for corporations to spend an unlimited amount in independent campaign expenditures. While most criticize that decision for treating corporations as persons, in fact, the Court never invokes that long standing doctrine to support its judgment. Instead, the holding hangs upon a limit in government power, not the vitality of the personhood of corporations.
But there is something about the status of corporations in today’s society that is essential to understanding how the Court decided as it did. If one imagined asking the Framers about the “unalienable rights,” as the Declaration of Independence puts it, that the Constitution intended to secure to corporations, it is perfectly clear they would have been puzzled by the question. Rights were the sort of things that “men” are “endowed” with, not legal entities. And while legal entities may well enjoy rights derivatively, as proxies for real human beings, that’s only when the thing they’re defending is something that, if taken away, a real human being would also necessarily lose. So a corporation should have the right to defend against the taking of its property, because the taking of its property necessarily involves the taking of the property of a real human being. Beyond that derivative, however, it would have been hard for them to understand the sense of this state granted privilege (which of course a limited liability corporation is) also enjoying “rights.” And impossible, I want to argue, for them to understand how this idea would lead to the morphing of the First Amendment to embrace a political speech right for this legal entity.
For us, today, the idea of a corporation’s possessing these rights is an easier idea to comprehend. Corporations are common, and democratically created (in the sense that anyone can create them). And though they are radically different in wealth and power, we all see them as essential to important aspects of our life. They are familiar, pedestrian. It doesn’t seem weird to imagine them as constitutionally protected, even beyond the derivative protection for things like property.
The familiarity of corporations, their ubiquity, and their importance all helped cover up a logical gap in the Supreme Court’s reasoning in Citizens United. In addressing the obvious (and in my view, conclusive) argument that these state created entities couldn’t possess any powers the state didn’t grant them, Justice Kennedy, quoting Justice Scalia, wrote “[i]t is rudimentary that the State cannot exact as the price of those special advantages the forfeiture of First Amendment rights.”[2]
But obviously, there were no “First Amendment rights” of humans that would be forfeited by saying that a legal entity created by the state doesn’t include among its powers the right to engage in political speech. To say something is “forfeited” is to say it existed and then was removed. But no rights of any humans are forfeited by a law that restricts a corporation. Humans would have all the rights they had to speak after such a law as before it. The only loser is the corporation. Yet so obviously familiar and native have corporations become, that Citizens United becomes a Bladerunner-like moment in Supreme Court history, where a human-created entity gets endowed with “unalienable rights.”
I don’t mean (obviously) that everyone agrees with the conclusion or the protection recognized. Indeed, the decision has sparked an anti-corporate rage that may in the end defeat its premise. Instead, my point is that it wasn’t weird to recognize the rights the Court recognized, just as it wasn’t weird for the Plessy Court to treat segregation as “reasonable,”[3] or weird for Justice Bradley to write in Bradwell v. The State:
[T]he civil law, as well as nature herself, has always recognized a wide difference in the respective spheres and destinies of man and woman. Man is, or should be, woman’s protector and defender. The natural and proper timidity and delicacy which belongs to the female sex evidently unfits it for many of the occupations of civil life.[4]
To the contrary, these claims are only weird in light of a radically different baseline of taken-for-granteds. And while it is relatively easy in hindsight to see these differences, and remark on them, it is incredibly difficult to see them in the future, and believe them. Again, the Framers could not have predicted what the Supreme Court did, even if we had told them that corporations would be as common as clay.
Consider one more try to make the very same point: Everyone (almost) recognizes in their parents views that are dated, or weird. Those might be views about race, or sexual orientation, or music. Whatever they are, they mark the distance between our parents and us. We can’t imagine ourselves holding such views, or viewing the world in light of them.
But what are the views that we hold that our kids will react to similarly? What is the equivalent of racism, or homophobia, for them? And even if you could identify what those views are — maybe the idea that some of us still eat meat, or that we permit an industry to slaughter dolphins so that we can eat maguro — it is almost impossible for us to gin up the outrage or disgust about ourselves that they will certainly feel about us. Of course, they will love us, as we love our parents. But they will be distant from us, as we are from our parents, for reasons we couldn’t begin to feel as we feel the reasons that distance us from the generation before.
Put most directly: The past is interpretively more accessible than the future. We can imagine it more fully, and feel the differences more completely. And that asymmetry affects fundamentally the ability to write an essay about what the Constitution in the future will hold.
[1]
558 U.S. 50 (2010).
[2]
Citizens United, slip op. at 35.
[3]
Plessy v. Furguson, 163 U.S. 537 (1896).
[4]
Bradwell v. The State, 83 U.S. 130, 141 (1872).
