The Battle over "Turning Back the Clock" in Constitutional Interpretation

28Historically Speaking · November 2002 The Battle over "Turning Back the Clock" in Constitutional Interpretation Stephen B. Presser Do we still have a Constitution? There is no doubt diat die "original" understanding of Constitutional exegesis was that the document ought to be interpreted in an objective manner, according to the "original" understanding of Constitutional terms.1 As everyone who has gone to law school since 1954 knows, however, die United States Supreme Court, in die middle ofdie 20di century, departed from diat original philosophy ofConstitutional interpretation , in order to bring die Constitution more in line widi what die Justices diought to be convenient for a modern democracy. The dieory, consistent widi die still-prevailing jurisprudence of "legal realism," was that the Constitution ought to be viewed as a "living document," which should change widi die times. As Earl Warren remarked, in deciding die landmark school desegregation case of Brown v. BoardofEducation ofTopeka (1954), "we cannot turn die clock back" to die time when die Fourteendi Amendment was passed to understand what it ought to mean today. Warren's Court (and, to a great extent, die Burger and Rehnquist Courts which followed his) altered die meaning ofmany provisions ofdie Constitution, in order substantially to limit die scope ofwhat die states could do in terms of policy-making, and in order to promote a secularized and individualized philosophy ofgovernment. Woe be to diose who challenge die Warren (and Burger and Rehnquist) Court's decisions in die areas ofrace, religion, and, in particular , abortion. Consider, for example, Robert Bork, die victim of a grossly unfair attack by so-called "public interest groups" and dieir sympadiizers in die Senate which kept him off the Supreme Court. More recently, Bork argued in die New Criterion diat die Supreme Court's decisions in die second half of the 20th century regarding "speech, religion, abortion, secularity, welfare , public education and much else" made die Court, in effect "die enemy oftraditional culture."2 Widi diis essay, Bork sought to rally support for judicial nominees who espouse original intent. In response,Jeffrey Rosen, a Holmes,Jr., the patron saint ofdie currendy dominantjurisprudential school oflegal realism : "The substance ofdie law, at any given time, pretty nearly corresponds, so far as it goes, widi what is dien understood to be convenient ." Holmes got it wrong. So does Rosen. Bork is right. A Constitution diat is a "living law professor and the legal affairs editor of document" is a rope ofsand, and offers little die New Republic (a reliable indicator ofwhat hope ofdoing what die Constitution is suppasses for moderation among media views), posed to do. The Constitution was intended blasted Bork in die New York TimesMagazine, to reign in die excesses of die state legislaas "living in a dystopian time warp."3tures, which were seeking to appease popular opinion byissuingincreasingly worthless paper currency and by suspending debts. The Constitution put in place a federal government that was to make commercial markets more secure by centralizing die creation of currency, and by forbidding interference widi private contracts on the part ofdie state governments. As high school students used to learn, the federal Constitution also attempted to put in place structural mechanisms which would prevent even die federal government from becoming too powerful. These were basically two-fold. One was die principle diatwe now know as "federalism" or "dual sovereignty," the notion that die federal government was to be one of limited and enumerated powers, with die state governments as die primary legislative and policy-making bodies for the country. The Constitution was supposed to deal widi common concerns of all die states, such as interstate commerce, navigation, a circulating currency, and national defense. Odier matters, including die basic doctrines ofcontracts, torts, property , criminal law, family law, and religion were to be the province ofstate and local governments . The second structural safeguard was borrowed from Montesquieu, and diat Warren Burger at LaGuardia Airport, 1953.© Bettmanns/Corbis Bork blamed die Court for die current "suffocating vulgarity of [our] popular culture ," but Rosen argued that "MTV, the Internet, the expansion ofsexual equality and other democratizing forces of popular culture " have led to die decline of traditional values. Indeed, Rosen praised die "Supreme Court's relatively moderate...