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CR October Pages

CR October Pages

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Published by: Colorado Christian University on Oct 03, 2011
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Centennial Revie
Editor, John AndrewsPrincipled Ideas from the Centennial InstituteVolume 3, Number 10 • October 2011Publisher, William L. Armstrong
Bradley A. Smith
(J.D., Harvard Law School) was formerly chairman of theFederal Election Commission. He is now president of the Center for CompetitivePolitics, a professor at Capital University School of Law, and the author of
Unfree Speech: The Folly of Campaign Finance Reform 
. This essay is adapted from hislecture at Colorado Christian University on March 18, 2011.
Centennial Institute
sponsors research, events, and publications to enhancepublic understanding of the most important issues facing our state and nation.By proclaiming Truth, we aim to foster faith, family, and freedom, teach citizen-ship, and renew the spirit of 1776.
the pursuit of happiness…all men are created equal…endowed with certain inalienable rights…”—but it did notcreate a government to pursue them. The Constitution was adopted to make those dreams a reality. Thus, how weinterpret the Constitution is vital to our civic life and theshape of our nation.
Bickel was Wrong
It is popular in many circles to suggest that the Constitutionis a “living document” that changes with the times to reectour contemporary understanding social goals. This view isillustrated by the noted constitutional theorist AlexanderBickel of Yale Law School, who wrote in 1962 that“judicial review is the principled process of enunciating and applying certain enduring values of our society.”But in fact, unlike the Declaration or the Gettysburg  Address, the Constitution is not a statement that enunciates values, such as “all created equal,” or “government of thepeople, by the people, and for the people.” Nor does it ask judges to enunciate values. Rather, it is an effort to bring certain implicit values to life through a particularsystem of government. This governmental structure does indeed reectsome specic values, although the particular values are often debated. But it is not an open-ended invitation to future policy makers to take whatever action seems to them appropriate to advance what is, in their opinion, an “enduring value of our society.In fact, it is because values can change dramatically overtime (for example, opposition to slavery, nigh universaltoday, was hardly so in 1790), and because there willalways be disagreement on many values and policies, thatit is particularly important to recognize the structural andprocedural limitations of the Constitution and the processit has created for governing our society.
 THE CONSTITUTIONMEANS WHAT IT SAYS
By Bradley A. Smith
Each Fourth of July we celebrateour nation’s Declaration of Independence with reworks,parades, and celebrations. It isappropriate that we do so, forperhaps no secular document hasinspired so many people aroundthe world, and no nation has doneas much for the cause of humanfreedom as that which was born in July of 1776.But the Declaration, while proclaiming a new nation and itsaspirations, did not actually create a system for governing that nation. And we know that the rst system that wascreated for that nation, the Articles of Confederation, was considered a failure. It was the Constitution of 1787that established what has been a permanentgoverning framework for the United States.
Beacon of Freedom
It is this document that has provided the basicgoverning structure of our nation as we haverisen from an underdeveloped backwaterof civilization to become the driving force of the worldeconomy and a beacon of freedom the world over. Withonly minor changes to its basic structure, many of those(the Bill of Rights) enacted shortly after the basic document was passed, it has seen us through prosperity and recession,through two world wars, through the burning of our capitalin the War of 1812, and through a momentous civil war.I intentionally draw a contrast between the Constitutionand the Declaration or other great American aspirationaldocuments (such as the Gettysburg Address), because when interpreting the Constitution we should recognizethat it was intended to serve a very different purpose thanthe Declaration of Independence. The Declaration wasa political document intended to attract foreign supportfor the American rebellion, and to stiffen the spines andbuild the enthusiasm of the local population. It set forththe goals and dreams of America—“life, liberty, and
It is notan ink blotfor values.
 
Centennial Review, October 2011 ▪ 2
 And it is a
 governing 
document. For example, Article Iincludes such mundane matters as when Congress shallconvene, when “yeas” and “nays” shall be published,that Congress shall publish a record of its proceedings,and how members shall be compensated. Articles IIand III establish the executive and judicialbranches. Later articles take care of suchboring administrative matters as oaths of ofce, provisions for adding new states, andprovisions for amending the document itself.
 When in Doubt, Apply the Text
 The Federalist Papers, those wonderful expositions by Hamilton, Madison, and Jay, do not argue that these are values of the nation—rather, they argue for the Constitutionby pointing out how the language of the document, andthe government it forms, will work to promote a wide variety of values and goals held by different citizens. The Constitution, in other words, is a procedural document.In its few pages, it establishes a government with threeindependent branches, explains how each branch is to beselected, and species the power held by each. It does notproclaim values—rather, it lays out the means by which wehave agreed to pursue those values.If the purpose of the Constitution is indeed to establisha working government, rather than to enunciate broadprinciples of political philosophy, then I suggest thatthe best way to begin any exercise of constitutionalinterpretation is through a straightforward application of the text. Does this seem obvious? That would only bebecause you have not been schooled in the law; for thisstyle of interpretation, sometimes called “formalism,” is widely scorned in legal circles. This theory of interpretation, which takes the Constitutionseriously as a blueprint for a working government, does notsuggest that there is no need to interpret the Constitutionor that all constitutional disputes have clear answers.Nor does it suggest that there is never any room for theconsideration of what some have termed “constitutional values.” But it does dramatically reduce the opportunitiesfor unelected judges to substitute their personal values forthe democratic process and the rights protected by theConstitution.
Reducing Judicial Mischief 
How does this work? Let us start with a simple exampleinvolving another of those pedestrian, administrativeprocedures that make up the bulk of the original document. Article I, Section 4 provides in part that “Congress shallassemble at least once in every year.” Does this mean thatCongress shall meet at least once every 365 days? Or doesit mean that Congress must meet at least once in eachcalendar year? I suppose one could debate this, but eventhe most creative constitutional scholars would be hardpressed to interpret it to mean that Congress may go from January 1 through December 31 without ever meeting, orthat Congress must meet more than once in a year. Thus, while a need to interpret exists, the simple languagegoes a long way to answering any questions. We need not ask ourselves what “values”are at stake—although surely the foundershad reasons for wanting Congress to meetregularly, and those reasons originated in values they held. The values are irrelevant tothe constitutional command. While other cases will bemore difcult, the principle remains.
Confusion from Kagan and Breyer
 Take, for instance, my area of greatest expertise, campaignnance law. Almost all judges and scholars agree thatlimiting spending to circulate political messages violatesthe First Amendment right to free speech. It costs money to publish a book or a movie, to organize a rally, to renta hall for a speech, or to pay for campaign ads. Thus, alaw which specically prohibits raising money for thesepurposes serves to limit political speech. The First Amendment declares that “Congress shall makeno law…abridging the freedom of speech.” Yet despitethis rather clear command, Congress has frequently passedonerous restrictions on political speech, and far too oftenthe Supreme Court has upheld these restrictions. Indeed,in a 2010 case called
Citizens United v. Federal Election Commission 
, then U.S. Solicitor General (now Justice) ElenaKagan argued that the Constitution even permitted the
To curbspending isto curb speech.
 
Centennial Review, October 2011 ▪ 3
U.S. government to ban political books and movies.
1
Evenmore remarkably, four Justices of the Supreme Courtseemed to agree.How can this be? The answer is the substitution of “values”for the actual provisions of the Constitution. JusticeStephen Breyer, for example, is a leading theorist for theidea of a values-based interpretation of the Constitution. While Justice Breyer has made clear that he believes thatcampaign nance regulations abridge free speech, healso believes, as a matter of policy, that the regulation of political speech can improve American self-government by promoting better debate and greater political equality.
 A Strong Presumption
 Thus, despite the constitutional command that“Congress shall make no law,” he argues that“there is no place for a strong presumptionagainst constitutionality” of speech-abridging regulations because “there are constitutionally protected interests on both sides.”
2
To those of us whotake language seriously, this is patently absurd. We do notargue that even such absolutist language as “Congressshall make no law” is in all respects absolute. For example,the government may be able to punish the unauthorizeddistribution of classied material, or maintain libel laws.But surely “Congress shall make no law…abridging thefreedom of speech” must at least mean that there is astrong presumption against the constitutionality of a law abridging what Justice Breyer agrees is “the freedom of speech.” The problem with Justice Breyer’s approach is that every question of constitutional law that reaches the SupremeCourt is likely to have “constitutional interests”—values —“on both sides.” Otherwise, it is difcult to envision thatanyone would ever take a constitutional challenge all the way to Supreme Court. Once “constitutional values” canbe substituted for the actual language of the Constitution,there is no meaningful check on the courts—or frankly, onpopular majorities, for legislators, too, agree to abide by theConstitution—from doing whatever they want. In other words, there is no Constitution.
First Amendment Makes No Exceptions
Moreover, to say that there are “interests” on both sidesand to then ignore the Constitution is, in most cases, likely to be a means of ignoring the values that might actually have led to the inclusion of the constitutional provision atissue. Indeed, in this particular case, the First Amendmentcould have provided exceptions for regulating speech “tofoster political equality” or to “improve public discourse”or simply, “when necessary in the public interest.” That itdid not is perhaps recognition that the value most behind
What part of ‘make no law’don’t they get?
the First Amendment’s protection of speech was a distrustof government regulation of the political process. Why are so many so eager to interpret the Constitution notin terms of its actual provisions, but in terms of its alleged values? The answer, oddly enough, is that many of thesesame persons are not particularly enamored of many of the values that seem to have motivated the drafting of theoriginal document and its rst ten amendments, the Billof Rights. What were some of the values behind the Constitution? They included national unity, as reected in the full faithand credit clause; the power given the federal government tocoin money and carry out foreign policy; the requirementsof Article I, Section 8 that duties, imposts,and excises be uniform throughout thecountry, and of Article I, Sections 9 and 10that no duties may be laid on exports betweenstates; or Congress’s power to establish postroads. Clearly, representative democracy wasanother important value. So far, so good. Few peopletoday do not share these values.
Founders Distrusted Power
But other values of the founding seem more controversialtoday. Among the other values that surely inuencedthe Constitution were respect for private property and atremendous distrust of government power. These valuesare discussed at length in the Federalist Papers and reectedin many provisions of the Constitution.Prominent examples are the due process and proceduralprotections of the Bill of Rights; the explicit protectionsof private property and the right of contract found in Article I and in the Fifth Amendment; and the document’scareful division of power, with its three coequal branchesand bicameral legislature. Another key value reected in the Constitution that seemsparticularly unpopular today is the desire for a limitedgovernment. The framers sought to support this not only in the express limitations of the Bill of Rights but in thestructure of the government as one of enumerated powers. This concept has, over the years, been all but obliterated.By resorting to constitutional “values” or “interests,”legislators and courts have been able to slip the actual
CENTENNIAL REVIEW
is published monthly by the Centennial Institute atColorado Christian University. The authors’ views are not necessarily those ofCCU. Designer, Danielle Hull. Illustrator, Benjamin Hummel. Subscriptions freeupon request. Write to: Centennial Institute, 8787 W. Alameda Ave., Lakewood,CO 80226. Call 800.44.FAITH. Or visit us online at www.CentennialCCU.org.
Please join the Centennial Institute today.
As a Centennialdonor, you can help us restore America’s moral core and preparetomorrow’s leaders. Your gift is tax-deductible. Please use theenvelope provided. Thank you for your support.- John Andrews, Director
1. 30 S. Ct. 876 (2010).2. Nixon v. Shrink Missouri Government PAC, 528 U.S. 377 (2000) (Breyer, J., concurring).

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