Sunday, November 20, 2005

Justice William Brennan's Vision of the Constitution.

Justice Brennan's picture has been blocked as part of the censorship effort emanating from New Jersey's courts and political officials.

William J. Brennan, Jr., "The Constitution of the United States: Contemporary Ratification," in Sanford Levinson and Steven Mailloux, eds., Interpreting Law and Literature: A Hermeneutic Reader (Evanston: Northwestern University Press, 1988), p. 13.

Among the greatest legal thinkers appointed to the United States Supreme Court, I include the late Justice William J. Brennan, Jr., a Jersey boy, who made it to the Court by way of Harvard University after a stint on the Superior Court in Jersey City.

Justice Brennan will always remain an important Constitutional theorist and philosopher of law, despite his deceptive humility, who articulated a vision and understanding of the Constitution for our times that merits further study. Brennan's theory is often compared with former Attorney General Edwin Meese's contemporaneous comments concerning the "intent" of the framers and "original understandings" of key phrases in the Constitution. In my opinion, Justice Brennan's theory of Constitutional interpretation was far more profound and richer than Mr. Meese's rival theory.

Mr. Meese's position has led to a Conservative "originalist" theory of Constitutional interpretation that is associated with Justice Antonin Scalia's able defense of the Supreme Court's task as deciding on the meaning of "what the framers actually wrote and managed to say, regardless of their subjective intentions." Justice Brennan begins his remarks with a crucial observation:

The Declaration of Independence, the Constitution, and the Bill of Rights solemnly committed the United States to be a country where the dignity and rights of all persons were equal before all authority. In all candor we must admit that part of this egalitarianism in America has been more pretension than realized fact. But we are an aspiring people, a people with faith in progress. Our amended Constitution is the lodestar for our aspirations [hopes?]. ...

Justice Brennan recognizes the analogies between judicial responsibility for reading laws and interpretation in the humanities, which mostly concerns the study of literary and philosophical works. He was aware of recent European and American theory of language, philosophical "hermeneutics," along with jurisprudential writings by Lon Fuller, John Hart Ely and Alexander Bickel (who is specifically mentioned in this essay). All of these sources can be detected as influences on the justice's thinking, in addition to the great precedents handed down by the Court. ("Manifesto for the Unfinished American Revolution.")

Among the justices most admired by Justice Brennan, whether in agreement or the opposite, I include Chief Justice Marshall, the first Justice Harlan, Justice Brandeis, Justice Frankfurter (though less so), and no Constitutional thinker in the twentieth century can escape the influence of Mr. Justice Oliver Wendell Holmes, Jr., the "great dissenter." Justice Cardozo -- though clearly endowed with a great legal mind -- was more of a common law judge and not a great public law thinker.

Public law involves relations between the individual and the State in its unique functions; private law is concerned with litigation or other actions between or among entities in civil matters where the State is only one more litigant. Criminal actions are public law; commercial litigation is private law.

Knowledge of the real world, which is impossible to miss in urban America, appears in Justice Brennan's work. Justice Brennan is far from "starry-eyed" about majorities or human nature. He recognizes that part of the judicial task in America is the protection of minority rights against the majority, however unpopular this may be. Justice Brennan discharged that responsibility with great courage. For example, in his fearless commitment to the protection of the franchise and of other hard-won minority rights during the turbulent years when he served on the Court. One wonders what he would make of recent Supreme Court jurisprudence dealing with federal presidential elections, i.e., Bush v. Gore.

There is both intellectual ambition and a becoming modesty about Justice Brennan's understanding of his role and importance: " ... the Constitution cannot be for me a contemplative haven for private moral reflection. My relation to this great text is inescapably public." (emphasis added)

Unlike humanistic scholars interpreting great texts in the history of Western civilization, in other words, a jurist construing the U.S. Constitution's general principles faces some important constraints. Three are listed: 1) the public nature of the task of deciding legal controversies; 2) the obligatory and binding character of the Court's decisions; and 3) the consequentialist aspect, which may involve the entire coercive machinery of the State. This burden of responsiblity gives a jurist pause and appropriate grounds for caution.

When justices interpret the Constitution they speak for their community, not for themselves alone. The act of intrepretation must be undertaken with full consciousness that it is, in a very real sense, the community's interpretation that is sought. ... our commitment to self-governance in a representative democracy must be reconciled with vesting in electorally unaccountable justices the power to invalidate the expressed desires of representative bodies on the ground of inconsistency with higher law. [The natural law roots of the Constitution are unmistakable in such phrases.] Because the judicial power resides in the authority to give meaning to the Constitution, the debate is really about how to read the text, about constraints on what is legitimate interpretation.

The analogies to the interpretive challenge in determining the meaning of Scriptures is unmistakable. The Constitution is America's secular scripture, as James Madison was the first to emphasize. I call it America's Talmud. It is the locus of a people's egalitarian aspirations. It is where one finds our hopes for freedom and equality, with due process of law, containing -- I believe at the most fundamental level -- a vision of the worth of persons as primary, over and above government and other concentrations of power in the State.

I still find this idea of human dignity inspiring and brave, worthy of any sacrifice. It is not for government to tell us what is spiritually or morally true nor how to live our lives. ("What is Law?")

We are self-determining beings whose freedom and equality must remain inviolable. It is individual rights-bearers, persons, that the Constitution enshrines and not a person's representatives, nor the judges appointed to serve the community's jurisprudential needs in their official roles.

The specific intentions of the framers and what they believed to be required by this overarching vision of human dignity and rights is reflective of the philosophy of the Enlightenment, and was both a product of (and a reaction to) historical circumstances at the end of the eighteenth century, but the core principles of the document were set in place, as foundation stones for a society meant to last, not only politically but morally. ("So Black and So Blue in Prison" then "America's Holocaust" and, again, "Manifesto For the Unfinished American Revolution" then "What is Enlightenment?")

The broad intention of the framers of this glorious text was that those called upon to interpret its meaning not be limited to the understanding of key phrases linked to "live" issues at the time of the ratification of the document. Justice Brennan explains:

What do the words of the text mean in our time? For the genius of the Constitution rests not in any static meaning it might have had in a world that is dead and gone, but in the adaptability of its great principles to cope with current problems and current needs. ... Interpretation must account for the transformative purpose of the text. Our Constitution was not intended to preserve a preexisting society but to make a new one, to put in place new principles that the prior political community had not sufficiently recognized.

Notice where this reasoning leads Justice Brennan as he comes to terms with the challenge faced by the contemporary Supreme Court:

As augmented by the Bill of Rights and Civil War amendments, this text is a sparkling vision of the supremacy of the human dignity of every individual. This vision is reflected in the very choice of democratic self-governance: the supreme value of a democracy is the presumed worth of each individual. ...


As government acts ever more deeply upon those areas of our lives once marked Private, there is an even greater need to see that individual rights are not curtailed or cheapened in the interest of what may temporarily appear to be the "public good."

In light of this language, it is not difficult to figure out what Justice Brennan would conclude about the denial of habeas corpus to persons in the custody of the U.S. government, torture, or concerning psychologists lending themselves to the interrogation of impaired persons, using their training to assist in the extraction of information from manipulated victims denied the right to remain silent or any representation, even assaulted or raped, including some (allegedly) very similar "secret" practices taking place today in his own home state, together with the cover-ups of what is done. Men and women serving as judges, with the sort of courage displayed by Justice Brennan, are rarer today than ever before in American history. ("Terry Tuchin, Diana Lisa Riccioli, and New Jersey's Agency of Torture" then "Is there a gay marriage right?")

The ideal emerging from the "penumbra" (a useful word) of the Constitution and its tradition of interpretation, is a ...

... vision of human dignity [which] rejects the possibility of political orthodoxy imposed from above; it respects the right of each individual to form and express political judgments, however far they may deviate from the mainstream and however unsettling they might be to the powerful or the elite. Recognition of these rights of expression and conscience also frees up the private space for both intellectual and spiritual development free from government dominance, either blatant or subtle. Justice Brandeis put it so well years ago when he wrote, "Those who won our independence believed that the final end of the State was to make men [and women] free to develop their faculties; and that in its government the deliberative forces should prevail over the arbitrary. They valued liberty both as an end and as a means. ..."

Justice Brennan recognized that the task of giving meaning to this ideal of human dignity under the vision of the Constitution is an "eternal one," that will always make the American experiment an unfinished revolution:

"[W]e are still striving towards that goal, and doubtless it will be an eternal quest. For if the interaction of ... justice and the constitutional text over the years confirms any single proposition, it is that the demands of human dignity will never cease to evolve." (See, again, my longer and more formal essay "Manifesto for the Unfinished American Revolution" then "Ronald Dworkin's Jurisprudence of Interpretation.")

As Judge Samuel Alito prepares for confirmation hearings before the U.S. Senate, I wonder whether he agrees with Justice Brennan about the dignity of all persons that is protected by the Constitution. If he does not, then I wonder what alternative vision of the Constitution he offers to us now?

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