Читать книгу Justice Rehnquist, the Supreme Court, and the Bill of Rights - Steven T. Seitz - Страница 24

On sequential pieces of parchment, America has two constitutions. The Constitution of 1787 viewed followers and well as leaders with suspicion and condescension. The Bill of Rights celebrated the ordinary citizen and welcomed democracy. The Federalists subscribed to the first theory; the anti-Federalists subscribed to the second. The Federalists wanted a central government with power but insulated from abuse. The Separation of Powers, with each branch of government serving as checks and balances on the other, and a representative system with large constituencies would serve that goal. The anti-Federalists would have preferred a confederation, but they were begrudgingly willing to settle for a very weak form of federalism coupled with a Bill of Rights. The anti-Federalists wanted as much power left to the states as possible and, since the states claimed allegiance of the people, wanted a Bill of Rights that would further keep the central government at bay.

The Bill of Rights would eventually become a source of individual sovereignty, separated from the state interests that thought they subsumed it. It would take more than a century, including a Civil War, explosive Civil War Amendments, and a recalcitrant court intent upon limiting the Civil War Amendments to race, before individual sovereignty could become a countervailing force to both federal and state government intrusions. The resulting triangle of competing sovereignties allowed shifting coalitions of two against the third, but only individual sovereignty advocates shifted sides.

Under Chief Justice Marshall, the court remained the bulwark of federalism even after the electorate had made a decisive turn toward anti-federalism. So-called loose construction favored the central government. The prolonged fight over “necessary” in “necessary and proper” symbolized what was at stake. Loose construction allowed a many-to-one mapping between means and ends; strict construction sought to limit the mapping to one-on-one. Loose construction was the consistent battle cry underlying variants of “Living Constitution.” Strict construction was the battle cry for various originalist doctrines. The distinction applied well to the Constitution of 1787, but less so for the Bill of Rights and Civil War Amendments. Strict scrutiny required the government to find a compelling reason for intervening in the protected sphere of the individual. Rational scrutiny accepted most government reasons for intervention as adequate. As the 14th Amendment strengthened the individual’s protected sphere against state intrusions, rational scrutiny or a many means-to-an-end standard allowed state forays into the individual’s protected sphere.

The separation of fundamental and enumerated rights also tied to the triangle of sovereignties. Once the individual sovereignty advocates aligned with central government advocates, the very notion of fundamental rights gave the court greater reason to limit state interventions. Court elaboration of unenumerated fundamental rights gave support for an individual’s protected sphere, backed of course by central government enforcement. The existence of fundamental rights has deep roots in Western civilization, but strict constructionists often see these as blank checks given to the Supreme Court. There are exceptions to every rule, such as interpretation of the 2nd Amendment.

Those who wrote the Constitution and Bill of Rights used terms general enough to allow the court to expound a Constitution, expound the protected sphere of individual citizens, and in some cases, expound protections for noncitizens as well. Marshall’s Living Constitution stands at odds with the counternarrative that our contemporaries can reconstruct the intent of people dead for more than two centuries or the public understanding long since passed and the related situ with which these ghosts of the past interacted. Divining intentions of people or publics long since passed, or selectively writing their history by choosing the important publics of the time provides the cover and flexibility to import politics into judicial decision-making. Importing the mind and knowledge of the eighteenth century, to the extent possible, is an odd devotion. Either narrative still expounds a Constitution; both value consistency. The very art of interpretation, emphasis on interpretation, is an ideological exercise.