The 2004 Reading of the Sacred Texts, delivered on February 11
by John T. Noonan, Jr.
United States Circuit Judge for the Ninth Circuit Court of Appeals, and Robbins Professor Emeritus at Boalt School of Law at University of California, Berkeley
Introduction. It is an honor and a pleasure to address you this evening on the Constitution of the United States and to have this document ranked among the texts considered sacred. Having invited someone whose profession involves the interpretation of this document, you no doubt expect more than patriotic pabulum and would like a realistic account of how it is interpreted. I should like to do three things: first, to speak of how the constitution is interpreted as an instrument of government, illustrating this interpretation with cases; second, to draw analogies and comparisons with the interpretation of the Bible; and finally, to indicate by an autobiographical account the place of authority, of private judgment and of conscience in the interpretation of this sacred document.
Construing The Constitution. “He who interprets the law makes the law” – so runs an old canonical adage. It is true of interpretation of the constitution, and the maker of the constitution is in particular the constitution’s chief interpreter, the Supreme Court of the United States. In this interpretation of text, two factors are in play: the spirit, i.e., the purposes animating the American government, and structure, meaning fundamental assumptions about the process of governing, assumptions not articulated in the document itself. When one looks at what is actually done, one sees that spirit and structure are not ordinarily put in conflict and that besides these two factors and the text itself, there is a fourth factor: context. No easy formula exists prescribing which factor shall predominate. All the time the interpreter is balancing – balancing the factors. It is the balance struck by the Supreme Court that, in general, sets the meaning of the text for other governmental entities for whom the constitution constitutes the framework of action. Cases are the medium of interpretation.
Let me begin with Marbury v. Madison, whose two hundredth anniversary was celebrated last year by many law schools, law reviews and courts. Marbury, an opinion by Chief Justice John Marshall, is according to Marshall’s admiring biographer, Albert Beveridge, “a landmark in American history so high that all the future could take its bearings from it.” Marbury was an action of mandamus brought in the Supreme Court against Jefferson’s Secretary of State, James Madison. The plaintiffs were appointees of President John Adams as justices of the peace for the District of Columbia. Adams had signed their commissions, but the commissions had not been delivered before Adams left office. Jefferson and Madison declined to deliver them. The context of the case was a political battle. Jefferson feared the Federalists and distrusted Marshall’s claims of power for his court. The case appeared to be a showdown between court and president. Madison, the nominal defendant, did not bother to appear before the court.
Marshall ruled that the act of Congress that gave the Supreme Court authority to issue the extraordinary writ of mandamus was unconstitutional. Congress had conferred on the court a power not specified in Article III, sec. 2. As the act was unconstitutional, the court had no power to issue mandamus. In the course of the opinion, Marshall declared: If the law and the constitution are in conflict, “the court must determine which of these conflicting laws governs the case: this is the very essence of judicial duty.” Marshall had no hesitation in concluding that the constitution prevailed: the justices had taken an oath to uphold the constitution. The oath – a promise made to God – must be observed.
This brilliant decision avoided a confrontation with the president. The court had no power to order delivery of the commissions. At the same time Marshall asserted a tremendous power – the power to nullify an act of Congress. Now if you look at Article III, section 2 of the constitution you will find that Marshall is right: there is nothing there about a court issuing a writ of mandamus. But there is also nothing there about a court having power to override and nullify an act of Congress. The text of the constitution is silent on the stupendous power asserted.
Marbury v. Madison is not explicable from the text alone. It may be understood in terms of the preamble to the constitution, which declares that, among other things, its purposes are
- to form a more perfect Union
- establish Justice
- insure domestic tranquility
- secure the blessings of liberty
Spirit is an elusive concept. But to nullify a law contrary to the constitution does seem to respond to the spirit of the preamble: it establishes justice.
Structure is also at stake. “It is emphatically the province and duty of the judicial department to say what the law is,” Marshall wrote. The structure in short makes the court the final interpreter of what the constitution means. The background assumption is made explicit: as to the constitution, the court has ultimate authority.
Marshall’s claim, it turned out, was too broad. In the course of time other functions have been given the courts of which you can find no mention in Article III: to appoint federal public defenders; to appoint bankruptcy judges; to review extradition decisions of the State Department. If Marbury were followed literally, all these tasks, allocated by Congress to the courts, would be rejected as unconstitutional. But Marbury has not been followed literally. A balance, more or less sensible, has been kept.
Balancing is a favorite metaphor in the law. We permit no value to be supreme, to eat up all the others. We balance. By balance we do not mean putting weights on a scale. We mean achieving the right proportion of each value, as the human body achieves a healthy balance. The sacred text of the constitution is read in this way, balancing.
The court in the course of time declined to say what the constitution meant in disputes over membership in Congress or in the president’s handling of foreign affairs or in the conduct of the military. Nothing in the text of the constitution or in Marshall’s opinion in Marbury kept the court out of these areas. Only prudence drew the line, or what I have called balancing. The court would go some ways but not too far to constrain Congress or the President. In this respect, the balance struck is different from that reached by the Supreme Court of Israel, which heard the case of international relief workers challenging the army’s seizure of the Church of the Saviour in Bethlehem and is now hearing a case challenging the army’s construction of the wall dividing Israel and Palestine. The court’s presiding judge, Aharon Barak, has written that the court performs a “pedagogical function” for the nation. Our Supreme Court is a teacher, too, but one whose balancing has limited its teaching.
I now want to illustrate the reading of the constitution in the context of cases by the story of the states’ immunity from suit.
In 1793, the Supreme Court decided Chisholm v. Georgia. Alexander Farquher had been a supplier of dry goods to the state of Georgia, which owed him 10,000 pounds when he died in 1784. His executor, Alexander Chisholm, attempted to persuade the state to pay, and when it did not, he sued. The state took the position that it was a sovereign, immune from suit, as the English king was immune at common law. The Supreme Court held otherwise. Common law was replaced by the constitution. The constitution gave no immunity: The word sovereign was unknown to the constitution. It was unjust for the state not to pay its debts. The text of Article III, as you can see, plainly provided for a suit “between a State and Citizens of another State.” As Justice Blair put it, “A dispute between A and B is surely a dispute between B and A.” Georgia was held to account.
The states and their friends in Congress were taken aback. They immediately passed the eleventh amendment, whose text you can read. It is a curiously modern text, a lesson in hermeneutics for the court. Article III is not to be construed to permit an out-of-state citizen to sue a state. For nearly a century that was understood to be the limited meaning of the eleventh amendment.
In 1890, Bernard Hans, a citizen of Louisiana, sued the state of Louisiana on bonds issued by the state. The bonds had been issued by a Reconstruction Era legislature. A new legislature did not want them honored. The Northern Republicans after the election of 1876 had come to terms with the South. There was no appetite for forcing a Southern state to pay Reconstruction Era debt. The Supreme Court held that Louisiana was immune from suit.
The opinion in Hans was written by Joseph Bradley, a man brought up in a Calvinist tradition but now self-identified as a liberal Christian. Conscious of theological language, he said that Hans had the letter on his side, but the spirit of the constitution was on the side of the state. It was unheard of that a sovereign state be dragged into court. The eleventh amendment, he said, reflected this view. But in Bradley’s approach, the eleventh amendment was superfluous. In the nature of things, sovereigns could not be sued, and each state of the Union was a sovereign.
Hans, you will observe, is 180 degrees different from Chisholm. A century after the constitution was written, the Supreme Court discovered both a spirit and a structure in it that gave the states an immunity from accountability. The court struck a new balance, understandable only in context: the case was a brake on the centralizing tendency of the Civil War and Reconstruction.
There was a big problem, however, for a court that wanted to protect business from hostile state legislation. To achieve that, the court interpreted the word “person” in section one of the Fourteenth Amendment to mean more than flesh and blood persons. It also meant corporations, so the amendment meant that no state could deprive a corporation of property without due process of law. The fourteenth amendment, intended to solve the problems of the rebel South, became a favorite of corporate lawyers.
But how do you sue a state that is immune from suit? The definitive answer was given in Ex parte Young. You sue an officer of state alleging that he is acting unconstitutionally. A state officer who is acting that way is not the state but merely an unlawfully acting person, who may be sued. Such was the definitive teaching in 1908 of the court in Ex parte Young. Edward Young, the attorney general of Minnesota, could be enjoined from enforcing the railroad rates set by the Minnesota legislature because these rates were confiscatory and therefore took the railroads’ property without due process of law.
There was one problem with Ex parte Young: it violated elementary logic. The Fourteenth Amendment only applied to states. Therefore the railroads had to allege action by the state when they sued Young. At the same time, in the same breath, it had to be said that Young was not the state but a lawless individual. In other words, the state was X and not X at the same time This defiance of logic did not trouble the Supreme Court in 1908 and has not troubled courts or law schools since then. I never heard the oxymoronic difficulty ever mentioned at Harvard Law School. You may well ask, Why not? I believe that the answer is that what was being sought was not fidelity to constitutional text or even to the dictates of logic, but balance. The balance struck – you can sue the state some ways on some issues but not in other ways on other issues – commended itself as sensible. So why worry about verbal or even logical consistency?
Hans, a product of late nineteenth century politics, has become an icon of the Rehnquist Court, the most activist court in the history of the nation in the number of federal laws – 37 in all – that it has used the power invented by Marshall in Marbury to invalidate. A steady theme for the past fourteen years has been the immunity of the fifty sovereign states from suit for money damages. A majority composed of five justices is convinced that to right the structural balance, lopsided since the New Deal, it is necessary to give some substance to the states by shielding them for liability for their torts and from liability from violating such federal laws as the Americans with Disabilities Act or the Age Discrimination in Employment Act. The disabled and the older state employees have been denied relief under these federal laws because, structurally speaking, the states must be treated as sovereign.
It is difficult for any one person to say what the right balance of federal and state power should be. Those who once would have been called state righters now call themselves federalists. It is possible to invoke one of the grand purposes of the constitution and ask if the states’ immunity from suit is compatible with the establishment of justice. Spirit then wars with structure. Text is trumped by the five justices’ reading of the political climate as the right context for the interpretation that they offer.
The cases construing the constitution to give immunity have had, in the absence of any text, a momentum of their own. Most notably, the immunity has been extended beyond the state itself – that is, beyond its executive and legislative offices – to all kinds of entities run by the state. Thus, for example, the University of California is immune from a suit for money damages wherever it chooses to invoke its immunity. So is the University of California Press. A myriad of state agencies that did not exist when the constitution was written are now embraced by the court’s creation of a protective wall that in its calibration preserves the states as a reality. Immunity has metastasized. Structure is under stress.
Analogies and Comparisons. How does the history of the reading of the Constitution by its principal interpreter compare with the story of Sacred Scripture? Some have compared John Marshall to St. Paul, a charismatic interpreter of what without his bold determination would have lacked much of its punch. The analogy is suggestive. Marshall’s invention of judicial review for constitutionality gave the constitution enormous vigor, as Paul’s theology imparted energy to Christianity. But attentive study would also suggest many differences between Paul and the jurist stating the law, and there is no figure like Jesus within the constitution.
Others have compared the position of the court with that of the pope. The court cloaks itself with a kind of infallibility in asserting that it has the last word on the meaning of the constitution. It is true that no agency of government has been able to prevent the court from making this claim to the last word. But the court makes no claim that its last word will last forever. In fact the court often changes its mind on what the constitution means. It has done so, for example, on the immunity of the states and is likely to do so again when a different party appoints the justices. As Robert Jackson, a very perceptive Episcopalian, once remarked of the court: “We are not final because we are infallible. We are infallible because we are final.” That kind of infallibility has less duration than the papal claim.
What is true both of constitution and the Bible is that the existence of a text permits each generation, if it wants to disregard oppressive precedent, to appeal afresh to the text. Justices of the Supreme Court swear to uphold the constitution, not John Marshall’s reading of it. Christians take the Gospel as the word of God; they need not be bound by some twenty-first century construction of it. The text is often not controlling. It is always a point of reference.
One use of the text is its use by those who can be called fundamentalists. Recourse to the text becomes what one could call worship of the text or textology. In religion I take that to mean persons who seize on one text or another as all-controlling or as dispositive of all controversies without regard to their context. The fundamentalist says that same answer must be given even when the question changes. Catholic fundamentalists, for example, were conspicuous in the controversy over the lawfulness of contraception. Judicial fundamentalists can be exemplified by three different justices: George Sutherland, who said that he laid a law down by the side of the constitution and so was able to measure the law’s legitimacy; Justice Hugo Black, who said, “The Constitution is my Bible” and brought a textual fervor to his opinions; and Justice Antonin Scalia, who has proclaimed his devotion to “the original intention” of the Founding Fathers.
What is true of all fundamentalists, I believe, is that they cannot consistently maintain their positions. Sooner or later, they will advocate positions contrary to their strict tenets. To take an example from religion, Catholics who assert that every lawful marital act must be open to life have never condemned the marital intercourse of those whose age prohibits conception. In the constitutional field, Justice Scalia has followed an evolutionary view of the constitution as to school segregation, not an original intent view that would take into account that the writers of the Fourteenth Amendment accepted school segregation in the District of Columbia.
The moral I would draw as to fundamentalism is that this rigidity is a symptom of weakness. Just as injured muscles become taut and tense, so do positions that have been intellectually discredited but whose holders do not see how they can be abandoned. To give one large historical instance, the Catholic Church, after the injuries inflicted on it by the French Revolution and the Napoleonic conquests, became notoriously reactionary and rigid; its muscles froze in self-preservation. The current Supreme Court majority maintaining the immunity of the states cannot break ranks without endangering the overthrow of a position almost devoid of academic support.
Academics have a lot to say in both theology and constitutional law; they thrive on texts. As the Marxists used to say, it is no accident that our country began with a written constitution. Protestant America was used to looking to a written text for guidance. It is equally no accident that a substantial number of the most acute and influential interpreters of the American constitution in modern times have been Jewish – Paul Freund, Gerald Gunther, Herbert Wechsler; the list could go on well beyond the illustrious dead. These persons brought to the study of the text an educated grasp of the stubbornness of words and their plasticity.
An Autobiographical Note. I now come to autobiography to illustrate my sense of the importance of a collective and authoritative understanding of the scripture we call the constitution and its relation to the claims of an individual’s conscience. I have discussed how the constitution works as the framework of government, allocating power between the three branches and between the federal and state governments. But the constitution also has an impact on individuals. Most notably, the ten amendments that constitute the Bill of Rights guarantee to the individual both freedom of religion (the first freedom) and freedom of speech. The Bill of Rights also gives the individual a guarantee against governmental oppression – the denial of due process is taking one’s life, liberty or property; unreasonable governmental search of one’s property or person; compulsion by the government to testify against oneself. These guarantees assume that the government is not always right. They balance the need of the government to govern against the privacy, dignity, and relative inviolability of the human person. It is in this areas of human rights that the claims of conscience may have an impact on interpretation of the constitution.
Allow me to illustrate with this anecdote. Sitting as a district judge in Boston, I tried the case of a young electrician, who, as he described it, had studied the constitution in the public library of Quincy, Massachusetts and come to the conclusion that the Fifth Amendment’s prohibition of being made a witness against oneself meant that the federal government could not make him file an income tax return and that the Fourth Amendment barring unreasonable searches by the government buttressed this position. He was willing to pay taxes if assessed; much of his pay was subject to withholding anyway; but he would not file.
The jury convicted him of the misdemeanor of failure to file. I sentenced him to probation and to community service as an electrician and to do a book report on Tocqueville’s Democracy in America, so he would understand how our political process worked. He did the service; he wrote a good book report; but he flunked a standard condition of probation, not to commit a crime. He reverted to principle and refused to file his income tax return for the current year. I had to deal with this violation of his probation.
The electrician claimed no religious revelation. But I felt like someone in the seventeenth century confronted with the claim of a special revelation from God or like a medieval inquisitor confronted by a defiant heretic. Who was this electrician to challenge everyone else’s reading of the Fifth Amendment? I did what an inquisitor would have done. I assured him that hundreds of judges, thousands of lawyers, millions of his co-citizens did not read the constitution as he read it. I told him that if he persisted in his reading he would be sent to prison, and that prison was not a pleasant place, and that his wife and two small children would miss him. In the end, I gave him two weeks to think it over. Within that period, he agreed to file. I was immensely relieved. But I do remember the encounter keenly as one where my conscientious adhesion to one reading of our secular scripture led to the coercion of another man’s conscientious interpretation.
Suppose his claim had been that God had given him the right to interpret the constitution as he did. Would I have respected that claim? I don’t see how I could have because, like John Marshall, I had taken an oath to uphold the constitution, and in context that meant the constitution as interpreted by the Supreme Court, whose cases denied the young electrician’s interpretation.
But suppose the stakes were higher. Suppose the penalty for his disobedience to the law had been death. Would I have hesitated to carry out the prescribed penalty? I think so – not only because the death penalty is dubiously legitimate in today’s America but because in this case it would have been so disproportionate to the offense. Conscience – my conscience – would at this point have compelled me to a reading of the constitution that nullified the legal penalty and required me to recuse myself, or if the conflict was widespread, to resign my secular office. For nearly all judges, I believe, there is a point at which the constitution is interpreted by conscience. The response to God requires a reading of the secular sacred text that does not violate the interpreter’s own subordination to a sovereign greater than that recognized by the common law or the constitution.