TWO HUNDRED YEARS after the framing of the Constitution, people debate its meaning furiously. Long-lived rules are denounced as silly, unprincipled, the sort of thing only fools or opportunists could embrace. Prominent scholars, judges and members of the Cabinet advance different approaches to interpretation and profess incredulity at each other's positions. Some want to look at the text of the document, others its structure, others its background and history (what kind of problems were the framers of the Constitution wrestling with?), others the aspirations implicit in the rules. A proposal to follow original intent elicits the question, "What was the framers' intent concerning wiretaps?," in an effort to show that the question is silly. But a proposal to make the content of the document turn on the aspirations of the living for a better society -- for example, Supreme Court Justice William J. Brennan Jr.'s statement that judges should engage in "a personal confrontation with the wellsprings of our society" and derive "solutions of constitutional questions from that perspective" -- draws howls that this is navel-gazing and puts the judge's personal views above "the law." How can a centuries-old document just happen to mirror modern sentiments? From police practices to capital punishment to abortion, constitutional law seems more a dispute about political and moral philosophy than about the fundamental charter of our government.

Yet almost everyone believes that the answers to these questions must come from judges. Chief Justice John Marshall proclaimed in Marbury v. Madison (1803) that "It is emphatically the province and duty of the judicial department to say what the law is." That is the modern wisdom as well. Many believe that if the questions have no answers, then judges will have to do a bit of inventing.

Why may courts say what the law is, when we cannot identify the "law"? The farther we move from 1787, the more remote the framers' concerns from ours, the less guidance the fundamental charter offers. The less the framers had to say about a problem, the more debatable it is now. And the more debatable it is today, the more power judges possess. As the holders of power "to say what the law is," judges influence more and more complicated social questions so long as we suppose that the Constitution must contain the answer to every problem -- if only we can find it.

The counterweight for many people is "strict construction" or "original intent," a sense of judicial modesty. These often are code words for letting the will of Congress, the president and the states govern. This may be too simple, because the Constitution is designed to check the power of these actors, to hem it in, as much as it hems in the power of judges. Sometimes the Constitution is designed to reduce the powers of the political branches, to put certain decisions off limits to them. The question is when.

Both those who think that the age and open-ended language of the Constitution authorize a greater judicial role, and those who believe that "strict construction" and a preference for democratic government require a confined judicial role, assume that judges have the power to fill in ambiguities. The parties to this dispute differ only in how modest judges should be. That is, almost everyone assumes that judges can decide what the law is, and if that requires creation as well as interpretation, we need only decide whether judges should be brave or meek.

That is wrong. The power of judges to say what the law is comes from the existence of law. Unless a question has been settled by the Constitution, a judge cannot insist that other people abide by his answer. When the document is vague, when the history is obscure, the living must settle their own affairs. But judges are not the representatives of "the living." If old rules no longer fit modern times, this endangers the basis of judicial review. The special power of judges in our legal system comes from a belief that judges are carrying out rules legitimately established by the framers of the Constitution in 1787 and by those who amended it. If there are no rules, if the decisions of the past no longer govern, if modern society must settle hard disputes as it goes along, then judges lack the authority to insist that their druthers prevail over all others.

What almost all modern discussions about the Constitution share is a separation between the theory of judicial review and the meaning of the document. Judges decide all questions of meaning. It's settled -- so now let's worry about meaning. That's wrong. The power of judges comes from the meaning of the document. Only after a judge determines that the Constitution contains a legal rule may the judge insist that his decision be obeyed. The missing question in most modern constitutional debates is: How can we find in such an old document rules to govern modern times? And when we can't find rules, what happens? Claims that constitutional theory must evolve, must lead the nation to a better tomorrow, endanger the institution of judicial review.

Many people treat the modern role of judges as established by our forebears as no longer subject to question. Yet no clause of the Constitution authorizes judges to override (in the name of the Constitution) the decisions of Congress, the president and the states. The power of judges to do this comes from the choice made in 1787 to have a written constitution. Alexander Hamilton, in "Federalist Paper No. 78," concluded that the Constitution implies a hierarchy of rules, with the fundamental charter higher than any law. Because there is a hierarchy, because we have a system of limited government, it is the judges' duty "to declare all acts contrary to the manifest tenor."

Judicial review comes from the written Constitution on which all governmental power depends. Judicial review rests on a belief that the Constitution is law. Its written nature means the perpetuation of the decisions of the drafters. Law means rules. The document says plain as day, for example, that states may not coin money, that the president must be at least 35 years old. These govern over ordinary laws because of the hierarchy of rules.

This means, however, that the institution of judicial review must affect the way we decide whether there is a legal rule. The "rule" must have the final word. If the debate turns on aspirations, on "values" instinct in the document and open to elaboration by future generations, there is neither "law" nor hierarchy. There is only an ongoing debate about how we wish to live and be governed.

One cannot derive meaning without knowing the uses to be made of the meaning. The use influences which treatments are legitimate. Literary criticism may proceed on the basis of modern intuitions and innovative reflections precisely because it is designed to stimulate rather than govern. Philosophical interpretation may invent new ethical systems because it is meant to furnish a theory of life rather than govern an ongoing state. Constitutional interpretation is more confined; it is a process of holding an actual government within certain bounds. The power to issue commands on the basis of interpretation influences the theory of interpretation. Whether other officers of government should do as courts say depends on how courts decide what to say. Much of the contemporary debate about constitutional meaning threatens to erode the theories that allow judges legitimately to say "what the law is" -- because people do not always treat the Constitution as law.

We must start at the beginning, with Justice Marshall's opinion in Marbury. His major premise is that the Constitution is law; it has rules binding on all organs of government. Another premise is that these rules are sufficiently clear to be enforceable as law. Marshall considers the clause saying that "no ex post facto Law shall be passed" and asks rhetorically whether a judge could apply a retrospective criminal law despite such clear language. The third premise is that the Constitution includes a hierarchy, that it is the "supreme law" and not just on a par with statutes and treaties. Finally, Marshall observes that every public official has a duty, by virtue of his oath, if not the written nature of the document, to follow the supreme law in event of conflict. Written instruments are meant to have bite. Otherwise ours is not a limited government after all. So there are rules that were laid down in the past that govern us. To have identified the rule is to have identified the reason why all must obey.

Aspirational approaches to constitutional meaning deny one or more of Marshall's premises. They deny, for example, that rules laid down in the past have content when applied to today's disputes. Perhaps they deny that rules laid down in the past bind us, even if they have content -- perhaps especially if they have content. Why would we want to be ruled by slaveholders from their graves? To deny any of Marshall's premises is to defeat his argument for review, however. The quality of the Constitution as a fixed star was essential to the argument Marbury gave for judicial review.

That the rule is fixed does not imply that society is fossilized. Quite the contrary, it ensures that change come from the living political and social processes rather than the will of judges. The age of the document does not stop the creation of new rights; it simply designates who, among the living, is authorized to speak for the living. Brennan's "wellsprings of our society" are more accessible to legislators than to tenured judges. More to the point, the "wellsprings" are legitimate sources of inspiration for legislators even though not for judges who rely on the Marbury argument for judicial review.

Marshall's approach teases judicial power from constitutional structure rather than language. If review depends on structure, there are other lines of argument. One is that on certain fundamental questions we must speak with one voice. Judicial power comes from the terror of the alternative -- chaos. So it seemed to Justice Oliver Wendell Holmes, who declared that the Republic would dissolve if the federal courts did not have the power to declare state laws unconstitutional. It went without his saying that this meant having judgments obeyed. So it seemed to Judge Learned Hand, whose argument goes: "It was probable, if indeed it was not certain, that without some arbiter whose decision was final the whole system would have collapsed . . . The courts were undoubtedly the best {place} in which to vest such a power, since by the independence of their tenure they were less likely to be influenced by diverting pressure. It was not a lawless act to import into the Constitution such a grant of power."

Why judicial review? Hand answers: Judges, free from pressure, will be most faithful to the decisions of the past. It is a powerful argument. The governing documents are the work of the past. Our history embodies wisdom exceeding that of transient majorities. To allow disobedience to judges' assessments of the claims of the past is to remove that anchor -- those doing the disobeying are apt to be those whose judgment is least reliable. There is a corollary, which Hand acknowledged: "It was absolutely essential to confine the power to the need that evoked it: that is, it was and always has been necessary to distinguish between the frontiers of another 'Department's' authority and the propriety of its choices within those frontiers. The doctrine presupposed that it was possible to make such a distinction, though at times it is difficult to do so." The Constitution, in other words, is a set of boundaries. The vision works to the extent those boundaries are discernible.

Yet fewer and fewer constitutional boundaries are discernible. Aspirational theories of constitutional meaning call old practices into question. They seek not to enforce boundaries but to change them. Suppose one can make a powerful argument that capital punishment is immoral. Will the Republic fall apart if some states use capital punishment and others do not? If some states permit abortion and others prohibit the practice? If some cities allow everyone free access to the beach and others do not? Quite the contrary. Many visions of utopia entail great diversity of moral views and the power of people to choose. Because people are different, because moral views evolve, different practices and the power to choose (or move) are important elements of liberty.

The argument that judges have a comparative advantage at preservation of a constitutional structure, which Holmes and Hand deployed, simply does not imply that judges have a comparative advantage at moving us to a better tomorrow. Constitutional theories in which judges are goads rather than anchors cannot use the justification of judicial review.

The fear of chaos also cannot justify judicial innovations by the "inferior" federal courts and the state courts. (I use this term in its constitutional sense only, you must understand.) There is one Supreme Court. There are 50 state systems. There are 13 federal appellate courts, with 168 (authorized) active judges and more than 50 senior judges. There are more than 700 sitting district judges, each an independent agent. Someone filing suit in the federal court in Chicago may find the case assigned to any of 28 active and senior district judges, appointed by presidents from Roosevelt through Reagan, and the appeal will go to three randomly selected judges out of 15, appointed by the same nine presidents. Those looking for babble can do no better than to consult the inferior federal judiciary, whose opinions contradict each other on important questions aplenty. And remember that all of these judges purport to be interpreting the same document.

Judges, members of the most stable branch of government, have both the time and the insulation from the hurlyburly to deal in principles. So when a question is put as a matter of principle, it seems only natural to turn it over to the experts, the judges. An aspirational theory of constitutional meaning depends on principles rather than politics, and therefore it seems to support judicial review quite nicely. This is a common argument for judicial power, yet it is an empty one. It begs the most important questions.

Why should the answer to a question turn on principles rather than politics? The nature of a democracy is that votes often count more than principles; the aptitude of judges in dealing with principles does not help us determine the domain of principle. For that we need some other source of authority.

When principles matter, why these principles? Any interesting constitutional question puts principles into conflict -- federalism versus individual liberties, or rights of different people. Consider abortion, pitting claims by women who do not want to bear children against claims of putative fathers, grandparents and the potential children themselves. Moral philosophers claim to have only methods of approaching such conflicts, not answers to them. To say that judges are "good at principles" is not to say that they are so good at reconciling conflicts that everyone else must obey, all the time.

And if expertise is the key, why these experts? Professors of law have even more time, and often more philosophical training, than judges. Should the president therefore follow law review articles rather than statutes? A theory of judicial review that cannot explain the difference between a Supreme Court opinion and an article in the journal Ethics is a defective theory.

There is still another way to think about judicial review. We've tried it, and it works. Every government adapts. In England, the queen has all the power, except that she can exercise none. The rule of decision in England is that Parliament is dictator. The rule here is that courts make moral judgments. Judicial review is that method.

This approach should sit uncomfortably with exponents of aspirational constitutional doctrine. Moral theories contain oughts. Experience doesn't. If judicial review evolved from something else, the evolution may continue. From this perspective, there would be no principled objection to a law depriving courts of jurisdiction to hear debatable cases, or to a decision by the president to disobey the court -- as presidents including Jackson and Lincoln have done.

If the power of judges comes from their "success" alone, however, then it is in trouble. Our history has seen colossal mistakes, from the court's declaration in Dred Scott that blacks are not (and cannot be) citizens, to the support of Jim Crow between 1897 and 1954, to the war of attrition against social welfare legislation between 1890 and 1937. A good part of the history of judicial review is a history in which the court either tries to stop the tide of politics and is finally overridden, or allows pernicious practices such as racial discrimination and is finally overridden.

Marbury is quite hearty -- so long as we accept the Constitution as law and confine the theory of meaning to divining rules that fairly bind all branches and do not depend on the will of the interpreter for force. The argument based on chaos also is powerful. The three amendments passed after the Civil War committed the national government to eliminating discrimination against black people based on their race. Race relations became a national rather than a regional problem, a problem that could have only one answer. Courts dealing with race relations are at the apex of their power.

But other disputes, contentious in the political and philosophical spheres, are less amenable to rules of the kind that authorize judges to supply the last word. To the extent our constitutional theory comes from moral aspirations, it does not supply the basis of judicial review. When a judge is driven to say, "This document from an earlier day really does not have a meaning, so the living must settle their own affairs," he has given a reason why he may not demand that everyone else accept his solution. When we observe that the Constitution is irrelevant when applied to a modern problem or stands for "human dignity" but not rules, we have destroyed the basis for judicial review. Democratic choice remains.

The theories that cope well with meaning and the power of review are modest. They are theories in which judges are brakes on change rather than the instruments of change. They are theories in which individual people rather than groups hold rights against the political branches. They are theories in which these rights secure the Republic against identified threats rather than establish "values" on which new entitlements may be built. They are theories in which the Constitution is law, a set of rules, rather than an empty vessel into which we pour hopes and visions of a better society. They are theories in which the judges are the living voices of the past rather than the sirens of the future. That is, I believe, as it should be. ::