The Presence Of History

A conversation with six Fordham Law professors about constitutional history

The U.S. Constitution was ratified 230 years ago. In the intervening two centuries, the founding document has held up quite well through a series of wars, social and cultural revolution, and a few textual changes—27, to be exact. Fordham Lawyer spoke with six professors—Nicholas Johnson, Robert Kaczorowski, Andrew Kent, Thomas Lee, Jed Shugerman, and Zephyr Teachout— about the history of the Constitution and how its past affects our lives today.

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How have constitutional principles, legal ideas, and political values changed throughout U.S. history?

Kent: In some ways the story of American law is the story of a gradual law. Women were not originally fully protected by the law. Children had few legal rights. There are whole categories—incarcerated persons, the institutionalized mentally ill—who previously weren’t thought to have any real legal protection, even into the 20th century. Other groups, such as African Americans, had constitutional protections in theory but often not in practice. One thing I teach about U.S. history is the gradual realization that more and more people are entitled to participate fully in our system of legal rights, both in theory and in fact.

Lee: For the first 80 or so years of U.S. history, in order to be a naturalized citizen, you had to be a “free white person of good character.” Following the Civil War, people of African descent were allowed citizenship; however, it wasn’t until the middle of the 20th century when that requirement of being either a free white person or of African descent was relaxed. I don’t think many people realize that it has been less than 100 years that the United States has allowed any person of whatever race to become naturalized. at’s a very important lesson about citizenship.

Shugerman: Equality has been a bedrock principle, and the conception of equality has tracked along with this broadening of the concept of citizenship. Also important is the transformation from formal equality under the law to a more robust social equality. I believe the distinction between these two is where many of our most contested political and legal norms are in the 21st century. For some in our community, as long as that law is formally applied neutrally, then equality is achieved. For others, equality means equal access to social goods and equal opportunities to advance.

Kaczorowski: Through most of U.S. history, individual rights were subordinate to the community’s view of what constitutes the general welfare. This priority of community norms over individual rights changed in the 20th century. The 1943 Supreme Court ruling in West Virginia State Board of Education v. Barnette expressed this change very clearly. In this case, Justice Robert Jackson explicitly stated the Constitution recognizes the right of the individual to be different. He also declared that racial, ethnic, and religious minorities required special constitutional protection to ensure their equal rights. These principles served as the legal foundations of the rights to determine one’s self-identity, one’s autonomy, and one’s destiny, along with the right to equality regardless of one’s gender, race, color, ethnicity, or sexual orientation, which the Supreme Court later declared are constitutionally guaranteed and privileged against community norms.

Teachout: If you look from the founding era through the 1970s, you see an ongoing anxiety about the threat that corruption poses to democracy. The language of corruption is the power of the powerless to accuse the powerful. During the Gilded Age, there is a separation between elites and the rest of the public. Elites begin to see corrupt behavior as normal; everybody else understands that it’s a real problem. I think there’s something dangerous when elites start excusing things on technical terms instead of understanding that these are not mere technical violations. This split of understanding and of language is something I think we’ve been seeing in the past 20 years in the United States. For instance, if you approach the average person on the street and ask them about political lobbying, they will say, “Yeah, lobbying is corrupt.” If you talk to law professors, they will often say, “Well, it’s legal, so…” If you weaken the incredibly important idea of corruption, then you weaken American political opportunities.

Johnson: What has occupied my time for the past 20 years is the question of the Second Amendment. Unlike other provisions of the Bill of Rights and other constitutional questions, some of the fundamental starting questions with regard to the Second Amendment remain contested, or certainly remained contested up until about a decade ago. In order to answer those questions, it’s crucial to start to think about what the basic views of the Constitution were in the 18th century. What is particularly challenging are the immense changes in the sense of how rights were protected under the original Constitution through a scheme of limited powers versus today, where we have a more kind of positivist enterprise that protects rights. And for good or ill, the Supreme Court has taken an originalist approach to thinking about the Second Amendment question.

Speaking of originalism, is the Living Constitution/originalism dichotomy useful as a way to talk about the Constitution?

Kaczorowski: These are theories of the Constitution that are directed at the Supreme Court to justify the Court going off and recognizing a right that previously hadn’t been recognized or a power that previously hadn’t been exercised by one of the branches of the government. Originalism ostensibly cabins the discretion of the Court in saying what the Constitution means. The Court’s decisions demonstrate that originalism does not constrain the Court. I see the originalism/ Living Constitution divide as a false dichotomy in this regard.

Johnson: Scholars and politicians debate about whether the Constitution as a general document has any sort of hard boundaries rooted in original intent. Some would argue that it’s very difficult to discern that intent. I think the broader debate about whether meaning has any sort of blocking power on modern political decisions is one that continues, and people disagree about that. It seems to be very difficult to have a Constitution with hard boundaries if those boundaries continue to flex in an indeterminate way based on political whims. It turns out to be incredibly important, especially for people who are not in power, to have power bounded by some hard standards. I think that, in spite of its problems, originalism opens the space for those standards. Living Constitutionalism exposes people to the possibility of the tyranny of the majority, which was a concern of many of the framers and should also be a concern of anyone who thinks they might ever be in the political minority. 

Kent: Among scholars and judges there is broad agreement that the text and the original understanding of what that text meant when adopted are extremely important inputs into constitutional interpretation. There are, of course, complex debates about how one goes about trying to determine what the original understanding of that text is. But basically no one disputes the crucial importance of text and original meaning. In that sense, scholars and judges are operating within a more or less shared framework; and, in that sense, the popular view that there is a huge distinction between originalists and non-originalists is somewhat overstated today. There is still much to dispute. Many important interpretive questions still divide us, questions such as how to proceed when the text is indeterminate, how to handle precedent that departs somewhat from text and original meaning, and what role, if any, considerations such as ethics or practical consequences should play in constitutional judging. But I think there is much more agreement about the starting point of constitutional interpretation than there was a generation or two ago.

Shugerman: When the founders created the Constitution, they were not adopting a document with, in Chief Justice John Marshall’s words, “the prolixity of a legal code.” In other words, they could not possibly write down all the legal principles and specific detailed legal rules. They chose instead broad language—general words like liberty, equality, property, and due process. The framers knew they were punting to judges to apply these broad, ambiguous concepts over time to new issues that would arise. 

It’s inevitable to have to translate original words to new kinds of technology and new situations. The question is the degree to which you try and adhere to 18th-century mindsets about those words or whether you take 18th-century concepts and then apply them to modern situations. For many constitutional scholars, it’s not just a matter of translating to new technologies; it’s translating these concepts to a modern understanding of our world.

Lee: The current vogue of originalism is to talk about original meaning, but not denoted as the intention of the drafters or the understanding of the ratifiers in the different states; rather, original meaning defined as what the public would have understood the provisions to mean. To some extent, the conceit of originalism hinges on some recoverable meaning of the constitutional words that is value-free, but that meaning doesn’t exist.

The original Constitution had something like 4,000 words. It’s extremely succinct. Other constitutions run to tens of thousands of words. To follow from what Jed said, many of the words in the Constitution are ambiguous, flexible.

I personally don’t like the label of Living Constitutionalism because the reality was that, until recently, everyone was a living constitutionalist. Everyone believed you start with the text; you try to understand the context; and then you look at opinions, how practices have changed over time, how meanings shift, and how values compete with each other.

Let’s talk more about the Supreme Court. How have its rulings affected the landscape of the legal areas that you study and teach?

Teachout: The Supreme Court has narrowed the idea of what corruption is in such a radical way that it has limited the capacity of states and federal governments to protect against it. The Court can make a good or bad decision, but it shouldn’t change our public language in such a radical way. In 2009, for example, it was corrupt, and illegal, for big businesses to spend money on political campaigns. In 2010, after Citizens United v. FEC, it was still corrupt, but now legal. If we tie the language of legality to corruption, then we’d have to say, “Oh, no longer corrupt,” just because the Court has said it isn’t.

We should stop thinking of anti-corruption laws as laws that are finely tuned machines designed to catch the corrupt actor; corruption is not like stealing. Instead, we should recognize that corruption will always exist and we want to thoroughly limit it. We want to encourage public generosity and public orientation in office. What that means is that we should never attach too closely the language of corruption to that which is also against the law.

Johnson: In the Second Amendment context, the Court, mainly utilizing originalist tools, has resolved the core question of whether the Constitution protects an individual right to bear arms, in District of Columbia v. Heller. The Court has more recently shifted gears and started talking about modern innovations and modern regulations and has validated those regulations without any reference at all to historical precedent, a shift that has caused some consternation among Second Amendment scholars. On a question of first principles, the Court was embedded very deeply in historical analysis to determine what the right was conceived to be in the 18th century. For purposes of modern administration of the right to arms, the Court has had to deal with an innovation that was submerged: the expansion of federal power since the 18th century. The innovations of the New Deal in particular—with different, broader ideas about the power that might be exercised by the federal government—create a great deal of opportunity for regulation. So the expanded Commerce Clause becomes the foundation for federal firearms regulation today. The Court, in a nonhistorical flourish, has basically said that those sorts of regulation are presumptively valid. These pronouncements have very little to do with the historical boundaries of the right to arms and more to do with the expansion of federal power from the 18th century forward.

Kaczorowski: The Supreme Court from 1789 to 1863 deferred to Congress as to what the Constitution meant. During that time, the Court declared only two acts of Congress unconstitutional: 1) a provision of the Judiciary Act of 1789, ruled in Marbury v Madison and 2) the Missouri Compromise, ruled in Dred Scott v. Sandford. After the Civil War, the judiciary adopted a more activist theory of judicial review in determining whether the acts of legislative bodies are constitutional or not. It is at this point that the Court started exercising judicial review as we understand it today.

The Court’s activism has been a mixed bag. I have found that, before the Civil War, the Supreme Court interpreted the U.S. Constitution as delegating plenary power to Congress to secure the property right of slaveholders in their slaves. Congress exercised this plenary power in enacting statutes in 1793 and 1850 that secured slaveholders’ rights, and the federal government actively enforced these statutes. When slavery was abolished after the Civil War, the Reconstruction Congresses exercised the same plenary power to enforce the fundamental rights of freemen, that is, U.S. citizens and persons living in the United States, through the 13th, 14th, and 15th amendments and statutes the Reconstruction Congresses enacted to secure these rights.

My research reveals that the Reconstruction Congresses, the Department of Justice, and the lower federal courts shared this understanding and actively exercised plenary power to secure these constitutional rights to a greater extent than they had done to secure the rights of slaveholders. However, the Supreme Court rejected this interpretation of the federal government’s plenary power, and it limited the government’s authority to protect individuals’ constitutional rights. However, in the 20th century, the Court did extend limited constitutional protection to Bill of Rights guarantees and implied fundamental rights, such as the freedom to choose abortion and sexual autonomy. It also became protective of groups that were denied equal rights because of their race, ethnicity, religion, gender, sexual orientation, etc. Nonetheless, the Court has never allowed the federal government to exercise the plenary power to secure these rights of individual freedom as it had allowed it to secure the property rights of slaveholders. The Court’s activist judicial review thus created a moral anomaly in constitutional law that has never been corrected.

How have executive departments, such as the Department of Justice, evolved since their founding?

Shugerman: The Department of Justice was created in 1870. Its original purpose was to professionalize and depoliticize the government lawyer. But what we have seen over time is a Department of Justice that has departed from that vision of professionalism and nonpartisanship. The attorney general and the department are too often plagued by partisanship. This is a fault of both major political parties. One egregious problem was President John F. Kennedy appointing his brother Robert attorney general. It would have been much better had Robert been appointed to a position that was more an extension of the pres- idency—secretary of state, for example. In addition to Kennedy, the department has been undermined by Nixon, Reagan, and Bush. And in the past decade, we’ve seen the department used as a partisan wedge—whether it’s Loretta Lynch meeting with Bill Clinton or Jeff Sessions and the abuse of the department. It’s not surprising that when both sides politicize the department, neither side trusts the rule of law when the power is wielded by the other side.

How can ideas of national security be informed by history?

Kent: When I teach and write about national security issues, history is a huge part of it, for a couple reasons. In the national security area, there’s a lot less judicial precedent. Compared with domestic constitutional issues, national security and foreign affairs issues about the Constitution are much more often answered by the president and the Congress. That means there is a much greater need to look for precedents not in the courts but rather in what congresses and presidents have agreed to do over time. In studying national security, we can and do look back to see how older government practices—about what’s lawful during wartime, about how we treat civilians in a country that we might be in a conflict with, and so on—have led to suffering, death, political repression, and other wrongs, and so need to be changed. History is very important in understanding why today we reject the targeting of civilians under the inter- national laws of war; or the detention of American citizens based on their ethnic ancestry; or the suppression of newspapers and other media press organs based on fears that they are hindering a war effort by criticizing the government. So there’s a lot to be learned from history about how we can have a government that effectively protects the country while also doing a better job than in the past at respecting fundamental rights.

Lee: When the Constitution was being written, the United States was a militarily weak state; it desperately needed trade with Great Britain, for example. The United States had this expansive area where it was hemmed in by the British to the north, the Spanish to the south, the French to the west, and the Native American population everywhere. Nowadays, the United States, at least since the Second World War, has been a leading power of the world. It has different needs, different capacities and capabilities, and so the Constitution as it was written is woefully not up to the task of dealing with these types of realities. There have been no amendments that have really affected the war powers and the foreign relations side of things. It is true, however, that the original Constitution had a much more narrow, restrained view of what the president could do in terms of a formative war. But it would be very difficult now to put that genie back into the bottle. If you’re in a situation where the Constitution doesn’t give you much guidance and the reality doesn’t match up very well with the text, what do you do?

Previously little-known parts of the Constitution, such as the Emoluments Clause, are attracting a lot of attention these days. Can history be our guide as to what happens next?

Shugerman: Zephyr has written a fantastic book, Corruption in America, which uses the Emoluments Clause, before President Trump was ever on the radar, to reframe the more general purposes and understandings of the Constitution as an anti-corruption document. In other words, to study the Emoluments Clause and its meaning is to understand the broader document of the Constitution.

Teachout: What is fascinating about the current litigation around the Emoluments Clause is how incredibly essential historians have been; in the lawsuits against Trump, there are briefs by 18th-century historians detailing how this word emolument was used in all kinds of different documents. So it’s very exciting to see that historians, whose specialty in an “arcane” area of the Constitution, are some of the most important characters in a public debate about, for instance, Donald Trump being paid by the Chinese government as a tenant in the Trump Hotel. Parts of the Constitution can sometimes feel like an appendix, but then these seemingly vestigial organs suddenly turn out to have a critically important function.