Radicals in Conservative Garb

By Ezra Bowen

When President Reagan nominated William Rehnquist as Chief Justice and Antonin Scalia to replace him as Associate on the Supreme Court, he explained that he wanted judges who would be "attentive to the rights specifically guaranteed in our Constitution and the proper role of the courts in our democratic system." On the surface that remark certainly seemed both reasonable and moderate, a respectful back-to-basics prescription for the high court. To a host of legal scholars, Democratic politicians and aroused liberals who saw beneath the surface, however, the words meant something else altogether. The President, these critics complained, was wrapping himself in the Constitution while trying, in the words of Julius Chambers, director of the NAACP Legal Defense and Education Fund, "to impose his own narrow ideological views onto the Supreme Court."

As those critics perceived it, the Rehnquist and Scalia nominations were part of the Administration's long-running assault on the court to reverse decisions the White House regards as too meddlesome with the law and too liberal in their interpretations of the Constitution. Attorney General Edwin Meese III stepped forward as point man for the assault last summer and, in the year since, has lambasted the high court as few of his predecessors have ventured to do.

He pronounced "constitutionally wrong" the 1973 Roe vs. Wade opinion that overturned a state-court ruling against abortion.

He ridiculed the "bewildering Catch-22 logic" behind the 1985 Aguilar vs. Felton decision forbidding public school teachers to instruct in parochial schools. He remarked that the court's generally high level of neutrality between what he called religion and irreligion (e.g., barring prayer in public schools) would have struck the framers of the Constitution as "bizarre."

He has urged "doing away with Miranda," the 1966 ruling that criminal suspects must be advised of their right not to answer questions, and he has denounced the 1961 Mapp vs. Ohio verdict blocking the use in a trial of illegally seized evidence. Such judgments aid only the guilty, he said, insisting, "You don't have many suspects who are innocent of a crime."

He damned as "intellectually shaky" the bedrock concept, first defined by the court 60 years ago, that the 14th Amendment applies key provisions of the Bill of Rights to the states, and not just to federal cases.

Such "infamous" policy decisions, declared Meese, amply prove that some < judges have been using the Constitution "as a charter for judicial activism on behalf of various constituencies." The proper role for the judiciary, he said in a climactic scold, is to guard the Constitution, not tamper with it.

The President has also made it clear that he disapproves of the court's tendency to indulge in what he calls social experimentation. Because "the Founding Fathers knew that . . . the power of the judiciary could be abused," said Reagan last fall, the framers crafted a meticulously worded Constitution whose instructions must be strictly followed according to the spirit in which they were first written, and not interpreted to conform to "anyone's personal view of utopia." Under this presidential reasoning, since the Constitution does not specifically mention, for example, abortion, the Supreme Court has no right telling anyone, including the states, what to do about it.

Picking up the President's line, Meese espouses a "jurisprudence of original intention." Its gist is that members of the bench should not only conform to a strict construction of the document's words, but also put themselves so closely in harmony with the framers' purpose as to "resurrect the original meaning of constitutional provisions and statutes as the only reliable guide for judgment." Thus may a Justice serve the law, says Meese, "rather than being a lawmaker."

Rehnquist and Scalia, though no banner carriers for strict construction or intent, stand foursquare for judicial restraint. In fact, Rehnquist has written that the concentration of power in the Supreme Court strikes him as "basically unhealthy," a usurping of the legislative process. Scalia, a particular foe of both Roe vs. Wade and affirmative action, also believes matters like these are the natural political business of elected representatives. A court, he says, must not be poking into "social judgments that ought better be left to the democratic process."

Of course, more than a few issues have been settled by the high court because Congress, out of carelessness or political pusillanimity, has failed to address them adequately. Nonetheless, many conservatives see such doctrine as a necessary bulwark against politically driven judges with a trendy mind- set to change whatever does not suit them. Says Robert Bork, for 16 years a professor at Yale Law School and now a judge on the circuit court in Washington: "Original intent is the only legitimate basis for constitutional ! decision," for without it "there would be no law other than the will of the judge." John Noonan, a University of California law professor appointed last winter to the Ninth Circuit Court, warns that the activism of the current court has a double-barreled effect. It upsets the balance of America's governing powers by siphoning away the legislature's function of creating law, and it turns the Supreme Court "into a continuing constitutional convention," leaving the nation no rock upon which to stand. The solution? "I'm for stepping back," he says.

Liberals and even some mid-roaders, however, fear that a judicial step back might leave unprotected the rights of accused criminals and others for whom legislators may have little sympathy. They further fear that conservatives will not be satisfied merely by stepping back. As American University Law Professor Herman Schwartz puts it, these disciples of original intent really want "to roll back the clock on civil rights, civil liberties and church- state issues." Since the Administration has been stonewalled by Congress on new laws to diminish these rights and principles, it wants to enfeeble the court's will to protect them.

Though some of the points of controversy that have triggered this visceral debate, including school prayer and legalized abortion, are current, the basic arguments over strict construction, interpretation and original intent are as old as the Constitution. And despite a tendency to perceive the Founding Fathers as a like-minded convocation of high-principled thinkers, they were actually a disparate and contentious lot who wrangled over the words and intentions of the Constitution as hotly then as do the Reagan-Meese camp and its adversaries today.

The Constitution had barely been ratified and the Bill of Rights had not even been passed when the quintessential liberal Democrat, Thomas Jefferson, invoked both strict construction and original intent in opposing the 1791 charter for the first Bank of the United States. Jefferson, a fundamental states'-righter who despised the kind of centralization represented by a federal bank, wrote that the authority to create such a national corporation was "not among the powers specially enumerated . . . by the Constitution." Nor, he contended, should one try to create new powers through interpretation of the document's phrases, for the Constitution "was intended to lace them up straitly within the enumerated powers." But Alexander Hamilton, the consummate Federalist, argued that within the Constitution lay implied as well as explicit authority. Among the former was the power to get things done that needed doing.

The bank stood, and strict construction of the most literal kind took its first major licking. As for the intent of the framers, none other than James Madison, regarded as prime architect of the founding document, told Congress in 1796 that whatever the framers had said or thought "could never be regarded as the oracular guide expounding the Constitution."

Both strict construction and intent suffered again when Jefferson, the unrelenting literalist, became President and was agonizing over the Louisiana Purchase. He could not find in the Constitution either the words or the implication that would permit him to buy the immense territory. But buy it he did, in 1803, under the broad and flexible charter the Constitution already was coming to be. Many legal scholars feel that if the bank did not drive a stake through the heart of strict construction, Louisiana surely did.

The same year, in the celebrated case of Marbury vs. Madison, Chief Justice John Marshall wrote the opinion giving the Supreme Court, indeed the entire judiciary, the power of review that the Administration now believes to be overused. In creating the watershed precedent, Marshall used the very kind of interpretive reasoning Meese finds deplorable in modern cases. Essentially, Marshall declared the 1789 Judiciary Act giving the court jurisdiction in Marbury was unconstitutional. Even though the Constitution nowhere expressly granted the court power to overturn an act of Congress, Marshall insisted the broad thrust of the document was, in fact, to keep lawmakers within the bounds of the Constitution by giving the judiciary the right of review.

Meese's passion for intent is so great that he has praised Marshall for it, even in Marbury vs. Madison. Meese has also managed to laud the decision on McCulloch vs. Maryland in 1819 as an exemplar of intent--the intent, says Meese, to leave lawmaking to Congress. Yet the primary effect of McCulloch, which rejected a state challenge to the national bank, was to affirm federal power over the states in any fundamental legal confrontation. In his opinion, Marshall inveighed against "the baneful influence of . . . narrow construction on all the operations of the government." Despite these heavy wounds, both strict construction and original intent have been summoned up again and again by judicial advocates who have found them useful. Chief Justice Roger Taney, a sometime slaveholder, invoked both when, in 1857, he handed down the decision denying the freedom sought by the slave Dred Scott. Neither slaves nor their descendants, said Taney, were "intended to be included, under the word 'citizens' in the Constitution, and can therefore claim none of the rights and privileges." Nor could they ever be included, since no court or Congress or President could "exercise any authority beyond the limits marked out by the Constitution, (which) speaks not only in the same words, but with the same meaning and intent with which it spoke when it came from the hands of its framers."

Constitutional scholars like Harvard's Laurence Tribe and Columbia's Vincent Blasi see a cloaked radicalism in such doctrine. While claiming legitimacy from the founders, they argue, a decision like Dred Scott flouts decades of evolving law and practice--in this case the Missouri Compromise, along with other statutes through which Congress sought to regulate slavery in the territories. The real orthodoxy and stability in law, says Blasi, is to adhere to the expanding thrust of precedent, and to respect and integrate the judgments of successive generations, rather than ascribe mythical intentions to the Founding Fathers. As Justice Oliver Wendell Holmes wrote, "It is revolting to have no better reason for a rule of law than that it was laid down in the time of Henry IV. It is still more revolting if the grounds upon which it was laid down have long since vanished."

Almost 40 years after Dred Scott, well after the Civil War and the l3th, l4th and l5th Amendments had guaranteed the long-denied citizenship and rights within all the United States, the court did it again. Seizing on the 14th Amendment's phrase "equal protection under the law," it upheld, in Plessy vs. Ferguson, a Louisiana statute mandating separate but "equal" public facilities for blacks. Indeed, those challenging Rehnquist's nomination cite a memorandum he once wrote stating, "I think Plessy vs. Ferguson was right and should be reaffirmed."

Meese has denigrated the Dred Scott and Plessy opinions and has cheered the 1954 Brown vs. Board of Education verdict, whose broad result was to end legal segregation. In Brown, said Meese, the court "was restoring the original principle of the Constitution to constitutional law." Yet the Brown decision $ rests primarily on an interpretation, not a strict reading, of the 14th Amendment's equal-protection clause. And it was attacked by segregationists at the time as social engineering that went against the intentions of the amendment's framers.

The fact is that original intent, as Attorney General Meese uses it, simply melts when held up to the flame of history. Justice Sandra O'Connor reaffirmed the point not long ago in her concurrence barring Alabama's moment of silence in public schools: "It is unlikely that the (framers) anticipated the problems of interaction of church and state in the public schools," she wrote, for the simple reason that, in the 18th century, there was virtually no public education as we know it.

Besides, strict construction, though drawn as the good sword of conservatism in the current debate, has proved to be a wonderful weapon for liberals in times past. The life master among strict constructionists, Justice Hugo Black, had this to say about the rights of the accused: "I subscribe to the doctrine that the Fifth Amendment, which says 'no person shall be compelled to be a witness against himself,' means that no person shall be compelled to be a witness against himself." And there goes Meese's position against Miranda. Black was also adamant about the 14th Amendment's power to apply the entire Bill of Rights to state law.

One has to wonder whether the Attorney General has considered the kind of genie that can rise from the constructionist bottle. Strict adherence might have prevented his boss from making war in Grenada. Keeping the CIA's favorite secrets would be impossible. There could be no federal minimum wage. The Air Force could not be funded (the Constitution mentions only an Army and a Navy), and the FCC, if it existed at all, could not assign television channels.

The fact is that virtually every genuine constitutional question has unique complexities that do not lend themselves to the slambang simplicity espoused by Reagan and Meese. For as Jefferson noted two centuries ago, the founders "laid their shoulders to the great points, knowing that the little ones would follow of themselves." And as Tribe's latest book, God Save This Honorable Court, clearly shows, the very breadth of the Constitution makes it an imperfect guide in specific matters. Such vague phrases as "unreasonable search," "equal protection of the laws," or "due process," writes Tribe, "not only invite but compel the Supreme Court to put meaning into the | Constitution" rather than simply trying to take meaning from it.

By and large, that has been the court's chief business ever since it first went into business. In Holmes' words, the Constitution has ramifications that "could not have been foreseen completely by the most gifted of its begetters." How, for example, could James Madison have foreseen a wiretap? Therefore its precise phrases, and the possible intent by which they were formed in a world dead and gone, carry far less weight than the flow of legal history and the accumulated power of precedent. Says Justice William J. Brennan Jr.: "The ultimate question must be, what do the words of the text mean in our time?" John Marshall, as usual, may have put it best. "We must never forget," he wrote in McCulloch, "that this is a constitution we are expounding . . . intended to endure for ages to come, and, consequently, to be adapted to the various crises of human affairs."