In 1803, Supreme Court Chief Justice John Marshall wrote in Marbury v. Madison that it was “emphatically the duty of the Judicial Department to say what the law is.” He was referring to interpreting statutes and judging whether they comported with the United States Constitution, which Article VI proclaimed “the supreme Law of the Land.” From that decision came judicial review, the ability of the Supreme Court to strike down any law it deemed in conflict with the Constitution, a power that the Framers had omitted from the text of the document, probably on purpose.
But there is a deeper question that Marshall did not address, that of the nature of law itself. While the law is always expressed in language, is the law only language, words on a page, or does it go deeper? Is the American Constitution no more than a series of articles, sections, and clauses, or is it an assertion of moral principles expressed through the written word? If the latter is true, as most Americans believe, then the Constitution is, at its core, an attempt to devise a system of government that will guarantee equal justice. And so, while the courts use language as its primary tool, never should parsing language overwhelm that basic goal.
Tools, in other words, must be used for the purpose for which they were designed. If employed otherwise, there is every possibility that they can destroy the very thing they were supposed to help create. This distinction, especially in Constitutional law, is hardly academic. Throughout our history, viewing law only as language has had a profound impact, especially on the powerless.
For example, in 1874, Associate Supreme Court Justice Joseph Bradley used a semantic attack on the 15th Amendment to doom African American voting rights for almost a century. The 15th Amendment, drafted specifically to guarantee Black Americans equal access to the ballot box, read simply, “The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude,” which is as straightforward as it could have been.
But the wording was not so straightforward to Bradley. In an opinion for the circuit court in United States v. Cruikshank, which was not even a voting rights case, Justice Bradley wrote: “The Fifteenth Amendment confers no right to vote. That is the exclusive prerogative of the states. It does confer a right not to be excluded from voting by reason of race, color or previous condition of servitude, and this is all the right that Congress can enforce.” (Italics added.)
Bradley’s linguistic legerdemain totally changed both the amendment’s meaning and its potential as a means for the federal government to protect Black voters. Under Bradley’s definition, if a Black person was threatened, beaten, and his house burned to the ground in order to terrorize him into not voting, and the state refused to prosecute the offenders, the federal government could do nothing, unless the victim could prove that the actions were motivated only by race. He had thus transferred the burden of proof from the state to demonstrate it had not discriminated to the individual whose right to vote had been denied to demonstrate it had. That proved virtually impossible when, in subsequent cases, the Supreme Court upheld laws and state constitutions in which racial discrimination could not have been more obvious. Jim Crow was the result.
Bradley’s definition was never repudiated and stood until it was rendered moot by the 1965 Voting Rights Act, which in turn was disemboweled by the Supreme Court in in 2013 in Shelby County v. Holder.
Despite denials by Chief Justice John Roberts in his majority opinion, Shelby County is an appropriate descendent of Bradley’s Cruikshank decision. In the Roberts Court, which has shown itself as antagonistic to minority voting rights as was Justice Bradley, a majority of the nine justices operate under a language-heavy philosophy called originalism, textualism, or sometimes strict construction. This approach was perhaps best described by former Justice Antonin Scalia in a 1996 speech at Catholic University in Washington, DC. “I take the words as they were promulgated to the people of the United States, and what is the fairly understood meaning of those words.”
The phrase “fairly understood meaning” seems benign enough but turns out to be not at all as innocent as it sounds. The American Constitution is notoriously and often deliberately vague, kept that way so those who would be tasked with running the new government could be flexible in meeting unexpected challenges. For example, in Article I, Section 8, which grants explicit powers to Congress, the final clause reads, “To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.”
This is an extremely broad power, appearing to allow Congress to do pretty much as it pleases with no real defining limits. But a system of checks and balances seems certain to contain some limits. But what are they? How can we discern a “fairly understood meaning,” an objective meaning, of “necessary and proper”? The phrase defies objectivity, as language often does.
But difficulties of this sort don’t seem to concern the current crop of objectivist justices. And they have succeeded in not only setting the tone of jurisprudence, but also in enabling a conservative movement whose members are privy, they insist, to the Constitution’s one and only true meaning. Any judge or justice who disagrees, or even worse, applies a broad notion of fundamental justice, is denounced as an “activist,” a term that seems to have taken on a connotation just this side of “communist.” But who is really the activist, the justice who admits that language itself is a good deal more subjective than the chemical makeup of an amino acid, or the one who insists he or she can say indisputably what an imprecise phrase means?
For the United States to approach the ideals that we ascribe to those who drafted and ratified the Constitution, language must not be allowed to overwhelm ideals, as it too often has in cases such as in Cruikshank, Shelby County, and Citizens United. Hiding behind false objectivity will never ensure equal justice. Quite the reverse.
And without justice, there can be no freedom.
