William Brennan, in his speech to the Text and Teaching Symposium, describes the Constitution as “embodying the aspiration to social justice, brotherhood, and human dignity that brought this nation into being.” For Brennan, the purpose of the Constitution is to make the United States “a country where the dignity and rights of all persons [are] equal before all authority”; since this is not yet a reality, it is a state to which we must aspire, and the Constitution serves as “the lodestar for our aspirations.” Brennan further believes that the Constitution is filled with extremely broad phrasing and provisions: “majestic generalities and ennobling pronouncements” which call forth “interpretation, the interaction of reader and text.”            

            Brennan disparages the view that the Constitution must be interpreted according to the Framers’ intent as “arrogance cloaked as humility.” He believes that it is impossible to “gauge accurately the intent of the Framers on application of principle to specific, contemporary questions,” since evidence of their intent is often sparse and ambiguous, and the Framers often disagreed amongst themselves. Brennan furthermore believes that interpretation based on the Framers’ intent would establish a political “presumption of resolving textual ambiguities against the claim of constitutional right”—which is a choice that implicitly favors the interests of the majority against minority rights and neglects “social progress” as well as “adaptation of overarching principles to social circumstance.”

            Brennan also does not believe that justices must allow the will of the majority to decide questions of “substantive value” in virtually all cases; rather, the purpose of the Constitution is “to declare certain values transcendent, beyond the reach of temporary political majorities”; the Constitution places certain powers beyond the reach of the legislature. However, the specific meaning of the Constitution’s provisions is not fixed. Rather, the judge must always ask himself the “ultimate question” in Brennan’s view: “what do the words of the text mean in our time?” Brennan does not wish to confine the Constitution’s meaning to a “world that is dead and gone,” but rather to adapt “its great principles to cope with current problems and current needs.” Thus, the meaning of the Constitution changes and evolves with the times. Brennan believes that the Constitution’s purpose is to create a new society rather than preserve a preexisting one. Specifically, Brennan believes that the expansion of government creates new possibilities for collision between government action and individual rights. Instead of attempting to limit government, Brennan believes that “the modern activist state… is inevitably with us” and thus seeks to adjust the Constitution’s meaning to redefine and protect individual rights under these new circumstances.

            In “How the Constitution Disappeared,” Lino Graglia argues against Brennan’s view of constitutional interpretation. First, Graglia points out that the function of judges is to apply, not to make the law, and the proper interpretation of the law necessarily implies an attempt to determine the intent of the lawmaker. Graglia notes that historically, the Supreme Court was supposed to serve as a “brake on social change,” rather than “the primary engine of such change,” a role it assumed after its Brown v. Board of Education decision—a change that made the Supreme Court the most important institution of government “in terms of the issues that determine the nature and quality of life in a society.”

            Graglia contrasts the proper scope of judicial review—interpretation of the Constitution in accordance with the Framers’ intent—with the practice of policy-making by judges: an overstepping of the bounds of proper judicial authority. If Brennan’s model of constitutional interpretation is to hold up, reading or interpreting a document would be considered “indistinguishable from composing or rewriting it.” Graglia argues that Brennan’s position in fact amounts to rejecting the requirement that judges confine themselves to interpreting the Constitution when deciding constitutional cases.

            The actual Constitution is “most ill-suited as a basis of substantial judicial policy-making by frequent judicial intervention in the political process in the name of protecting individual rights from majority rights.” The Constitution creates individual rights which are “few, well-defined, and rarely violated,” which leaves little scope for judicial activism. For this reason, judicial activists try to dispose of the written Constitution as “unhelpful, inadequate, or irrelevant to contemporary needs” and to replace it with a more “expansive, elevated, and abstract constitution” of their own imagination, which would enable them to justify enacting “their versions of the public good.”

            Graglia disagrees with Brennan’s assertion that the Constitution’s greatness is derived from its ambiguous and broad generalities; rather, “the Framers’ aims were much more specific and limited.” The Framers wanted to protect human freedom and dignity by creating a structure of decentralized democratic decision-making, “with the regulation of social conditions and personal relations left to the states”—a system which is undermined by Brennan’s claim of “virtually unlimited Supreme Court power to decide basic social issues for the nation as a whole.”

            For Graglia, the assumption that nine unelected lawyers on the Supreme Court should make fundamental decisions of public policy rather than the people’s representatives amounts to an implicit rejection of “the validity of representative self-government.” Graglia believes that those who would wish the courts to invalidate a statute on constitutional grounds must undertake the difficult burden of showing its inconsistency with the Constitution; Graglia thinks that Brennan reverses that presumption and would require “elected representatives to justify their policy choices to the satisfaction of Supreme Court Justices, presumably by showing that those choices contribute to the Justices’ notion of social progress.” In essence, judicial activism seeks to avoid “largely imaginary dangers of a democratic misgovernment by creating a certainty of judicial misgovernment.”

G. Stolyarov II is a science fiction novelist, independent philosophical essayist, poet, amateur mathematician, composer, contributor to Enter Stage Right, Le Quebecois Libre,  Rebirth of Reason, and the Ludwig von Mises Institute, Senior Writer for The Liberal Institute, weekly columnist for GrasstopsUSA.com, and Editor-in-Chief of The Rational Argumentator, a magazine championing the principles of reason, rights, and progress. Mr. Stolyarov also publishes his articles on Helium.com and Associated Content to assist the spread of rational ideas. His newest science fiction novel is Eden against the Colossus. His latest non-fiction treatise is A Rational Cosmology. Mr. Stolyarov can be contacted at gennadystolyarovii@yahoo.com.

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