No wonder Constitutional Law is considered by many, especially law students, to be so difficult to learn.
It's invisible!
How invisible?
Try this:
"Everything that we see is a shadow cast by that which we do not see."
That's how Prof. Lawrence Tribe describes it (in an aphorism he says he got from a friend's fortune cookie) in his new book, reviewed by one of the best legal writers in America, Dahlia Lithwick, of Slate, below.
Here's the thing about the Constitution. It's a document written 231 years ago in Philadelphia (1787) by some 55 very clever fellows. The earlier attempt at writing out a plan of association, the Articles of Confederation, got us together after we declared independence from England in 1776 but then we had to fight a war to make it come true. But we were broke. We had no national leader. No army (the troops all went home). No navy (we'd relied as colonies first on the British navy, and during the war, on the French navy. Cornwallis would have won at Yorktown had Admiral DeGrasse not sat his fleet at the entrance to the Chesapeake scaring off the British navy bringing in reinforcements from New York. So we have to be careful what we say about our friends the French. Not only did they fight for us and with us, they provided the francs that enabled us to pay for the guns and gunpowder, uniforms and shoes, and the other loans with which we paid soldiers. We owe a lot to the French, like our all. So be proud to eat French fries (British crisps), but I digress.
How could a document written in 1787 contain all wisdom?
It can't.
It contains only as much wisdom as was needed at the time to establish the plan. That would be the structure of a govenment that would have no king. We were tired of kings. Very tired. So we divided up all the king's power and all the king's men into three piles, one for Congress, one for the president and one for judges. This way they could jealously guard their turf and prevent the other power grabbers from grabbing too much. A sort of equilibrium would obtain. Not a bad deal.
There were few, if any rights declared to protect you and me. This produced loud objections from drafters called anti-Federalists, Federalists being those favoring a strong national or central government at the expense of the thirteen constituent states. The antis insisted on a Bill of Rights being tacked on, in return for support. So that's what they did. James Madison reviewed the various rights contained in the colonial charters, which did protect individual rights, and boiled them down to twelve, ten of which were adopted. One of the others was adopted a couple of hundred years later and I forget what happened to #12.
When the U.S. Supreme Court considers the constitutionality of a statute or government practice, on what basis does it do so?
The words of the text? Fewer than 6,000, I'm told?
I don't think so, despite anything you may have heard to the contrary from Justice Scalia.
Even he looks to what the English did before Independence to find ammunition to show what practices they employed to secure convictions, such as torture, hearsay, and a refusal to allow the accused face his accuser, and later rejected, to find what we should also reject. See Crawford v. Washinton and many others.
This is called going outside the four corners of the document. Constitutional scholars do it all the time.
This is not being a textualist or an originalist, which means trying to interpret the document according to how the drafters, also called "the Framers," understood the words. It's very hard to say what 55 guys understood. The best you can do is to read what they wrote, and look at the transcript of the proceedings in that locked room during the hot summer of 1787, Philadelphia. And then you still don't have it. You need to know who they were working off, such as Locke and Montesquieu, among others, including ideas from the old and new bible testaments. In short, you need the whole history of the culture including its seminal documents, including the Greeks, the Romans, the Dutch (a hot empire at the time, a lovely confederation whose basic idea we leared from: don't have a confederation because each member of such has a veto and nothing will get done, but instead go for a deal where, let's say, that as soon as nine of the thirteen colonies agrees, then we're in business. Allows room for dissenters while we still function enough to get started. Fortunately all thirteen agreed.), Shakespeare, the Enlightenment, etc.
In short, when trying to do wisdom and justice, our justices are free to draw on anything (except perhaps foreign law, if they don't want to hear squawks from the right) that comes to mind and makes sense.
The document itself is just the starting point, our fortune cookie legend, one that needs the importation of a lot of baggage in order to make it practical and real.
You can read about Tribe's book below. Me, I'm going to pick it up soonest.