America's Unwritten Constitution: The Precedents and Principles We Live By (41 page)

Impossible for courts to reverse—but not necessarily for legislatures. A prior erroneous Court ruling does not properly amend the Constitution, and other branches of government may be able to return to a constitutionally proper regime by acting purely prospectively in a way that judges perhaps should not. Imagine, for example, a statute proposing a gradual ten-year phase-in of a new, more constitutionally appropriate regime to replace the old case law that the Court now admits was erroneous. Were the Court itself to announce such a purely prospective phase-in, this announcement might strain the traditional boundaries of proper “judicial Power,” precisely because the announcement would look purely “legislative” in nature. But legislatures, of course, typically act in precisely this purely prospective fashion, and phase-in statutes are commonplace.

It is thus important for the Court to tell the public if the justices have indeed erred in the past precisely so that the other branches may ponder their constitutionally permissible options. Justices may not relish confessing error, but they have no warrant for refusing to do so when called to account. The Court’s duty, then, is not, as a broad reading of the
Casey
dictum would have it, to affirm and extend precedent without deciding whether precedent is right or wrong. Rather, the judicial duty is first to admit error whenever the Court finds that error has occurred, and then to consider whether special reliance interests apply and how those interests might limit the use of retrospective judicial power.

In other words, the Court’s province and duty is to say what the law is—the law of the Constitution, of course. If, in the process, the Court decides
that this supreme law has been violated, whether by a state law, a federal law, or a presidential proclamation—
or a past ruling of the Court itself—
the justices should declare that fact and then do their best to analyze how, if at all, this wrong might be righted, and by whom. When the Court itself is the source of a constitutional wrong, it has a particular obligation to help right that wrong, or at least to identify how the wrong could be righted by sister branches.

Let us now return to the
Casey
dictum one last time: “[A] decision to overrule should rest on some special reason over and above the belief that a prior case was wrongly decided.” The best way to read this dictum is as follows: Even if today’s Court determines that a prior case garbled the Constitution’s true meaning, the judicial inquiry is not at an end. There are still two “special” questions that the Court must consider. First, have the American people themselves ratified the error in a way that cures it? Second, have litigants equitably relied upon the error in a way that immunizes it from immediate judicial reversal?

WHEN CASEY IS READ IN
this way, it meshes with the actual practice of overrulings by the Court over its entire history. It also meshes with the terse text’s own understanding of the proper relationship between “this Constitution” and the “judicial Power.” Seen from this angle, the document and the doctrine cohere: What the Court says about “this Constitution” squares with what “this Constitution” says about the Court. Thus, this reading of
Casey—
and of the Court’s case law more generally—puts precedent in its proper place.

_____________________

^*
For example, this footnote is a lie.

^*
The federal Constitution’s structure did not raise identical concerns. Even though the Senate sharply deviated from the one-person-one-vote ideal, its apportionment rules were nevertheless entrenched in a way that limited the imaginable damage. State apportionment rules, by contrast, were far more fluid and thus more in need of some additional constitutional constraint. As for federal House elections, Article I, section 2, prevented gross interstate malapportionment. After
Baker
but before
Reynolds
, the Warren Court held, in the 1964 case of
Wesberry v. Sanders
, that congressional districts within a state must be equipopulous. For more on
Wesberry
, see p. 554, n. 13.

^*
For more discussion of how this updating properly operates, see Chapter 10, n. 14 and accompanying text.

ABRAHAM LINCOLN (NOVEMBER 8, 1963).

Less than a fortnight after posing for this photograph, Lincoln delivered a short speech commemorating the battlefield at Gettysburg.

I
N A POLYGLOT NATION OF MANY FAITHS,
ethnicities, and ideologies, the Constitution stands as a uniquely unifying American symbol—a New World republican version of England’s Queen Elizabeth, of India’s Taj Mahal. But several other iconic texts epitomizing The American Way have also helped to bind Americans together and make us a distinct people with a particular national narrative. These canonical texts have won a special place in American constitutional discourse, even though many modern Americans have never actually read these works (just as many have not read the Constitution).
¹

The most important thing to understand about America’s symbolic Constitution is simply that it exists. Americans of all stripes can easily name certain texts that stand outside the confines of the written Constitution yet operate in American constitutional discourse as privileged sources of meaning, inspiration, and guidance. True, once we move beyond this core set of texts, the outer boundaries of the canon are fuzzy. But then, so are the meaning-boundaries of many of the written Constitution’s clauses, whose relatively solid core applications nestle inside blurred peripheries and penumbras.
^*

AMERICA’S SYMBOLIC CONSTITUTION
revolves tightly around
texts
. Of course, texts are not the only things that operate as symbols. England’s queen is not a text, but she nevertheless symbolizes a nation. Ditto with America’s president. At the Founding, George Washington functioned as a particularly important symbolic figure, shaping America’s understanding of the presidency itself. But texts have certain notable features. Most
important, the texts at the heart of America’s symbolic constitutional canon closely resemble the written Constitution itself: They are public, democratic, and uniform. In other words, all these symbolic texts can easily be reprinted so that every American can have access to the same thing, with minute variations. (Different printers may follow slightly different style sheets.) By contrast, a human being operates as a more complex, privatized, and uneven symbol, as members of the public will have access to highly variable information about the person in question. In this sense, Americans will not even be reading from the same page, so to speak. Some interpreters of George Washington, for example, may know all about his childhood and marriage, while other interpreters may not. And the relationship between private life and public character raises rich but potentially distracting issues that published texts sidestep to some extent.

True, texts are not the only things that are public, democratic, and uniform. Think of uniforms themselves—the infantryman’s combat outfit, the sailor’s suit, the judge’s robes. Or think of the American flag—a classic American symbol, rich with constitutional overtones, but not a text in the ordinary sense. Compared to the elaborate text of the written Constitution, however, symbols such as flags, uniforms, and bald eagles typically lack highly specific propositional content. Often, their beauty lies in the eye of the beholder, and they easily mean different things to different people. By contrast, each text at the center of the symbolic canon mirrors the basic frame of the written Constitution itself. Each is a specific and articulate source of linguistic meaning.
²

Just as America’s written Constitution was formally ratified and has been repeatedly amended by the American people, each element of America’s symbolic Constitution at some point in American history won the hearts and minds of a wide swath of the American people, thereby helping to bind citizens together as a legal and political entity. Certain kinds of texts are unlikely to perform this function. For example, great American novels are surely articulate texts, and many of them bristle with specific ideas that might conceivably bear on constitutional issues. But novel-reading is often an intensely private or a profoundly universalizing experience rather than a public and political event tying together Americans qua Americans. Besides, which novels should qualify? On race relations, should we pick
The
Adventures of Huckleberry Finn, To Kill
a
Mockingbird, Beloved—
or
Gone with the Wind?
On privacy, should
Lolita
be our guide? Should property rights in America borrow a page from
Atlas Shrugged
and
The Fountainhead
, or from
The Grapes of Wrath
and
The Jungle?
By contrast, the texts at the center of America’s symbolic Constitution are closer cousins to the written Constitution itself, each having been officially recognized at some point and in some way as possessing special American constitutional authority.

Thus, the hub of America’s symbolic Constitution consists of works that closely relate to the written Constitution. Whereas some of these canonical works have come from official governmental sources and others have emerged from the pens or lips of private persons, each is widely read as a precursor to, an implementation of, and/or a meditation upon the written Constitution itself.

In sum, the core of America’s symbolic Constitution consists of articulate texts that bear on constitutional questions, adjoin the written Constitution in some sense, and occupy a special niche in American constitutional discourse. With these parameters in mind, the next section identifies six exemplary items—six canonical texts that have in fact achieved a special constitutional authority and that, on reflection, deserve this authority.

AMERICA’S SYMBOLIC CONSTITUTION SURELY INCLUDES
(but is not limited to) the Declaration of Independence, Publius’s
The Federalist
, the Northwest Ordinance, Lincoln’s Gettysburg Address, the Warren Court’s opinion in
Brown v. Board
, and Dr. King’s “I Have a Dream” speech.

These works set forth background principles that powerfully inform American constitutional interpretation. Wherever the written Constitution is fairly susceptible to different interpretations, interpreters should hesitate, and do in fact hesitate, to embrace any reading that would violate the clear letter and spirit of these other canonical texts. In short, these texts are
constitutional
in the sense that they are
constitutive—
adherence to these texts helps
constitute
Americans as a distinct people among all the peoples of the Earth. True, these special texts are not on the same legal level as the written Constitution itself. Where the terse text is clear, it trumps. But
often the written Constitution is not crystal clear. Often, different interpretations are plausible, and faithful interpreters must go beyond the text to reach specific conclusions. In doing so, they must remember that they are construing
America’s
Constitution, and that America stands for certain things—things set forth in other texts that we, the people, as a people, hold dear.
³

Although each of these texts has in some sense been “ratified” by the American people in general and by faithful constitutional interpreters in particular, most of these “ratifications” have been indirect and informal. By making Martin Luther King’s birthday an official holiday—a remarkable tribute to a purely private citizen who never held public office—America’s lawmakers can be understood to have “ratified” King’s speech, officially making King’s dream America’s dream. But this ratification of course differed in important ways from the ratification of express textual amendments. King’s brilliant ad libs did not pass through the same elaborate screens and filters that every word in the written Constitution itself did. As we read canonical texts from the likes of Publius, Lincoln, and King, we must recall that none of these texts purported to be law. Even those who insist on strict attention to every word of the written Constitution, and who pay great heed to rules and principles of proper legal interpretation when construing that text, must understand that different and looser techniques of interpretation and literary analysis may befit several of the works in America’s symbolic canon.

BEFORE EXAMINING OUR SIX TEXTS
individually—explaining how each came to form part of the core of the canon and what each has come to mean—we should pause to reflect upon a few general features of America’s symbolic Constitution.