Book excerpt: A Constitutional History of the United States

No personal statement regarding the Constition would be complete unless it took notice of a controversy that has smoldered for a number of years and has recently begun to bubble to the surface. Many people, unhappy with the Supreme Court’s decisions in one or more controversial areas — abortion, school prayer, the death penalty, affirmative action, and so on — are generally, if vaguely, aware that in reaching some of the decisions the Court has strayed from a reasonable reading of the Constitution. What is less known is that the matter has been the subject of an ongoing debate in the law schools and in the law reviews, from which has emerged a strong and persuasively defended position that the Court should disregard the written Constitution altogether in arriving at its decisions.

This new doctrine is usually described by the rather awkward term “non-interpretivism.” The traditional view, which non-interpretivists seek to replace, in (in the words of John Hart Ely of The Harvard Law School) that “judges deciding constitutional issues should confine themselves to enforcing norms that are stated or are clearly implicit in the written Constitution.” Non-interpretivists hold instead that “courts should go beyond that set of references and enforce norms that cannot be discovered within the four corners of the document.” The argument of the non-interpretivists begins by pointing out that the Constitution was written nearly two hundred years ago for a nation of fewer than four million people (of whom nearly 700,000 were slaves and half were females with limited legal rights), living simple lives, mainly as farmers, in a world in which modern tehnology was nonexistent. Modern society has different needs, different values, and different ideals, and if the Constitution is to be workable it must accommodate these changes: but the Constitution can be amended only by a cumbersome, outmoded process. The Supreme Court, on the other hand, can easily keep the Constitution up to date as it makes its decisions. Therefore, the argument concludes, the Court is not only justified in disregarding the written document, it has a positive duty to give the Constitution life by changing it to meet the changing needs of changing times.

Where the Supreme Court justices obtain the authority to rewrite the Constitution the non-interpretivists do not say, except to claim, erroneously and circuitously, that the authority is granted by the written Constitution itself. Who, or what is to restrain the Court from perpetrating injustice in the name of justice, or for that matter in no name at all but its own, the non-interpretivists likewise do not say. As contrary to common sense, common prudence, and common understanding as the doctrine is, however, it has gained many influential adherents. According to the distinguished legal scholar Robert Bork, formerly a law professor at Yale and now a federal circuit court judge, only one professor in the nation’s top ten law schools continues to oppose non-interpretivism, and the doctrine is spreading in the other law schools.

Should non-interpretivism come to prevail, the grand American ideal of limited government, bound by a written law known or knowable by all, will have failed. If the ideal is to be preserved, a suitable way for educated Americans to prepare to defend it is by getting to know the history of their Constitution.