For the first time a justice of the Supreme Court, Justice William Brennan, has openly laid claim to judicial power to revise the Constitution. He conjures up a duty, scornfully dismissed by Justice Black, of "keeping it in tune with the times." Those who differ with him "feign self-effacing deference to specific judgments of those who forged our original social compact." It is "arrogance clothed as humility," he said "to pretend that . . . we can gauge accurately the intent of the Framers." And he suggests that this "facile historicism" has a "political underpinning," expressing "antipathy" to minority rights.
Respect for the "original intention" of the Founders is not the bastard doctrine disparaged by Justice Brennan. Instead, as Prof. Thomas Grey, himself an activist, observed, it "is deeply rooted in our history and in our shared principles of political legitimacy. It has equally deep roots in our constitutional law." Professor Jacobus tenBroek noted that the Supreme Court "has insisted, with almost uninterrupted regularity, that the end and object of constitutional construction is the discovery of the intention of those persons who formulated the instrument." Recently the court stated, "Clearly the men who wrote the First Amendment religion clause did not view paid legislative chaplains and opening prayers as a violation of that Amendment."
"What makes a thing true," Sidney Hook wrote, "is not who says it but the evidence for it." Let me therefore briefly adduce some evidence that refutes Brennan's assertion that we cannot gauge accurately the intent of the Framers on application to specific contemporary questions." One example must suffice: the reapportionment decisions that were rested on the 14th Amendment, notwithstanding that, in the words of Justice Harlan, the exclusion of suffrage from the amendment is "irrefutable and still unanswered," as academicians increasingly agree. To mention only two items of evidence: section 2 of the amendment prescribes that a state's representation in the House of Representatives should be reduced in proportion to the exclusion of male inhabitants from voting. Discriminate if you will, was the message, but it will cost you. That limited sanction bars an inference that discrimination was prohibited altogether. Shortly thereafter the 15th Amendment, its framers explained, was adopted to fill the gap left by the 14th. Brennan's joinder in the reapportionment decisions plainly proceeded in the teeth of the framers' unmistakable intention to exclude suffrage from federal control.
To escape such facts, he takes another tack, asserting that to "restrict claims of right to the values of 1789 specifically articulated in the Constitution" is to "turn a blind eye to social progress and eschew adaptation of overarching principle to changes of social circumstances." What is the "overarching principle" that empowers him to reverse the Framers' unmistakable determination to leave suffrage to the states? Of course there must be power to change the Constitution in light of changing circumstances. But that power was vested exclusively in the people by the machinery of amendment. Chief Justice Marshall wrote that the courts have "no power to change the instrument."
Brennan invokes the power of interpreting: "Judicial power resides in the power to give meaning to the Constitution." At the adoption of the Constitution "interpret" was defined and still is as to explain, decipher, and -- as a law dictionary has it -- "to ascertain the meaning of those who used the word," emphatically not to depart from the meaning of those who used it. From Francis Bacon on, the office of a judge was "to interpret the law, not to make it"; and so the court often has held. Whatever "interpret" may mean, one thing it clearly did not mean -- "making law," precisely what Brennan defends.
For him the "ultimate question must be, what do the words mean in our time?" But Justice Holmes considered that "the purpose of written instruments is to express some intention . . . of those who write them, and it is desirable to make that purpose effectual." Brennan is welcome to use words that he employs as he will, but he may not saddle his meaning on the Founders. If "the sense in which the Constitution was accepted and ratified by the Nation," said Madison, "be not the guide in expounding it, there can be no security . . . for a faithful exercise of its power." In his Farewell Address, Washington cautioned, "let there be no change by usurpation" (in place of amendment), for "it is the customary weapon by which free governments are destroyed."
Brennan assails what he terms "unchecked enshrinement of majority will." In "The Federalist," Hamilton said: "To give a minority a negative upon the majority . . . is, in its tendency, to subject the sense of the greater number to that of the lesser." Undeniably a purpose of the Constitution was to "declare certain values . . . beyond the reach of temporary political majorities." But Brennan would go beyond the minority rights "specifically articulated in the Constitution"; he does not feel bound by the "precise, at times anachronistic, contours" of the Constitution. Sailing under that flag, the modern court has fashioned additional, so- called human rights that even activists admit have no roots in the text or history of the Constitution. They are judicial constructs out of thin air. Anti-activists, therefore, do not express "antipathy to claims of the minority to rights against the majority," as Brennan charges, but only against the newly created rights the court has fashioned without constitutional authorization. Arrogation of power, even for benign purposes, violates the Constitution. A judge, Cardozo observed, "is not a knight-errant, roaming at will in pursuit of his own ideal of beauty or goodness."
Finally, it is to be borne in mind that on many important issues Brennan is a dissenter, stubbornly continuing to insist, for example, that death penalties must be abolished. I would commend to him the words of his esteemed colleague, Justice Harlan:
"When the court disregards the express intent and understanding of the Framers, it has invaded the realm of the political process to which the amending power was committed, and it has violated the constitutional structure which it is its highest duty to protect."
Such views are not to be ridiculed as "arrogance cloaked in humility."