Apr
12

Lipsky's Constitution: "We The People"?


There will be talk aplenty about what our Constitution means, even what it is, in the weeks and months to come as debate forms around the nomination of the next justice to the United States Supreme Court. The debate, frankly, is too important to be left to lawyers. But where is an ordinary person to turn for information, much less inspiration, about the Constitution?

I'm reading Seth Lipsky's. The Citizen's Constitution: An Annotated Guide, (Basic Books: New York, 2009). It is a refreshing.
Lipsky is a life-long journalist, having worked at the Wall Street Journal and founded the now defunct New York Sun. His editorials earned him a finalist's berth for the Pulitzer Prize in 1991. He's a keen observer of politics, both national and international, and has been following public affairs for 40 some years. In the preface, he notes that over the years he has actually turned to the Constitution as he tried to make sense of the issues of the day.

This business of turning to the Constitution may not seem remarkable to you. But consider, for a moment, the act in the context of Lipsky's life. He is not trained as a lawyer. Rather, he is a journalist. As his newspapers sought to comment on the meaning of the day's events, he turned to a document he regarded as a compact between he, other similarly situated people, and the government. He assumed that as a person of intelligence, he could discern both the Constitution's meaning, and the limits it placed on Government.

You lawyers out there are smirking as you read. You know it's not that simple. The document doesn't speak, it must be read. And even if it could speak, its speech must still be interpreted. The act of interpretation is a highly creative process, requiring very active and self-conscious commitments to interpretive canons. Thus, the current dichotomy between those who support a "living constitution" and those favoring "originalism" is really just a parlor squabble among lawyers and judges about how best to read a document whose meaning and relevance to our time is often far from apparent. We're all activists now, whether we like it or not. And the activity we engage in is interpretation.

But I like Lipsky's experiment. Can a person of ordinary intelligence make sense of the document? Does the Constitution speak in any meaningful sense to the conflicts of our day?

I am reminded of Senator Sam Ervin during the Watergate hearings. One day, he pulled a battered copy of the Constitution from a jacket pocket and waved it around, exclaiming that he did not see any reference in his Constitution to some high-fallutin' nonsense being peddled by a Government lawyer. It is an image that remains with me almost forty years after the fact.

Sure, Ervin was grandstanding. But why not? The Constitution is written so that it can be published and relied upon by all. We speak now of the law's transparency, and then shroud it in doctrines as opaque as medieval theology. Only lawyers benefit from obscurantism.

So what does Lipsky make of the Preamble? Who are, for example, "We the People?" Does that have meaning today? Did it at the time of the founding?

The joy of an annotated interpretation is in the scholarship that supports it. Lipsky has gone to the Founder's writings, and has parsed terms debated about at the time of the Constitutional Convention. His annotations reflect familiarity with the writings of Federalists and Anti-Federalists, as well as Farrand's Records, and a wide variety of other contemporaneous sources.

Three words into the preamble, and already controversy. "Who authorized them to speak the language of, We, the people, instead of, We, the states? States are the characteristic and soul of a confederation," Patrick Henry noted. Sam Adams, too, was puzzled: "I confess, as I enter the building I stumble at the threshold. I meet with a national government, instead of a federal union of sovereign states."

It's always puzzled me that the convention, called to amend the Articles of Confederation, assumed a mandate it was never given: Wholesale restructuring of the Government. It is as though they were sent to purchase a new saddle, and returned with a team of wild new stallions.

James Madison saw perhaps more clearly. The Preamble, he wrote, "is not an unmeaning flourish. The expressions declares, in a practical manner, the principle of this constitution. It is ordained and established by the people themselves; and we, who give our votes for it, are merely the proxies of our constituents. We sign it as their attorneys, and as to ourselves, we agree to it as individuals."

Perhaps. But it is an odd, odd notion for an attorney to assume responsibility not given by his client. Did the people authorize creation of this document? Not in any literal sense. It took a bitter ratification fight for the Constitution to be adopted two centuries ago.

But tell me, today, what binds us to the commitments of a foregone era? Madison was a brilliant lawyer; there was genius among the founders. But they spoke for a people far different than that which populates our continent today. James Madison did not represent me, or my forebears: My father's family was still in Crete, perhaps dreaming yet of Minotaurs. He hadn't hired an American lawyer to dream for him.

"We the people" is wonderful rhetoric. But the words are an old wine skin that requiring refilling each generation. Will new wine burst the old skin?

So we struggle now to select another new justice for the Supreme Court. It is fair to ask this justice just how he will interpret the Constitution. What canons bind? And to what interests are those canons bound? The Constitution has never been revealed truth speaking somehow outside the limiting pressures of particular places and times. More importantly, if this justice serves, in some sense as Madison fancied himself to be serving, as the people's attorney, aren't we entitled to a role in interviewing him or her for the job?

I want a lawyer I can trust, a lawyer who understands the life I lead, and whose world is not so different than mine that I feel a chill of condescension as we discuss the goals of the representation. I want an ordinary sort of lawyer, schooled in chaos, and accustomed to grief. If a judge is going to pretend to represent the people, he ought to be a people's lawyer.

Next: The rest of the Preamble
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About Norm Pattis

Norm Pattis is a Connecticut based trial lawyer focused on high stakes criminal cases and civil right violations. He is a veteran of more than 100 jury trials, many resulting in acquittals for people charged with serious crimes, multi-million dollar civil rights and discrimination verdicts, and scores of cases favorably settled.

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I believe that the state is a necessary fiction and that failing to combat it is the first step toward tyranny.
– Norm Pattis

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