The living Constitution

Abstract

I. LECTURE ONE: ARE WE A NATION? The telephone rang, and a familiar conversation began: since 1989, the State Department had been badgering me to serve on delegations to advise one or another country on its constitutional transition to democracy. I had refused, and refused, and refused: no junketing for me, no ignorant professing in front of politicians I did not know on countries I barely understood. But once again, I heard an earnest midwestern voice at the end of the line, speaking self-importantly in the name of the Special Assistant to the Assistant to the Deputy Assistant Secretary of State. This time, he assured me, it was going to be completely different. The State Department wasn't asking me to help write a constitution in a language I couldn't read. It was inviting me to engage in a one-on-one tutorial with the great Akhil Alfarabi, a master of both the European and Islamic legal traditions, who was eager to extend his understanding to American constitutional law. Nothing but mutual enlightenment, the cheery voice guaranteed: it was past time to bridge the fearsome cavern separating the great legal systems of the world. And they were asking only for a week of my time. Why not? I asked, and I soon found myself, jetlagged, encountering a smiling Alfarabi at an undisclosed location. After drinking endless cups of tea, we began serious conversation where I always begin: with the written Constitution, starting from the words "We the People" and working our way to the end of the text. Alfarabi fulfilled my fondest expectations. He was a master of the art of elaborating profound legal principles out of lapidary texts and listened intently as I presented the famous words left behind by the American Founding and Reconstruction. A couple of days of joyful conversation passed, and we finally moved into our final lap: the texts of the twentieth century. But Alfarabi was getting impatient, and a bit resentful, at my treating him like a brilliant first-year student. "How about changing roles," he suggested, "and letting me take the lead in interpreting the last few constitutional amendments?" Truth to tell, I was a bit doubtful: for all his learning, he didn't have the foggiest idea of American history. But after all, I didn't have any idea of his country's history, and that hadn't stopped us from engaging in some great conversation. "Why not?" I asked myself, glimpsing the ghost of John Dewey (1) enthusiastically nodding his approval: "We have reached the Twenty-First Amendment. What do you think it means?" "Well, the year is 1933, and Franklin Roosevelt is coming into office--he's the one who announced the New Deal, no?" I nodded enthusiastically, as is my habit, and was greatly relieved to learn that the guy knew more about my country's history than I knew of his. "And looking at the amendment," said Akhil, "I can see precisely why they call it the New Deal. I find it deeply regrettable that the American people repealed the ban on the consumption of alcoholic beverages, but as a lawyer it's obvious that something very new is happening: We the People are demanding a sharp cutback in overly ambitious federal regulatory schemes. The larger constitutional principle is clear: the era of Big Government is over." Alfarabi spoke with confidence, for great lawyers never lack self-confidence. Before I could figure out what to say, Akhil was pushing on to the next amendment. "This Twenty-Second Amendment," he explained triumphantly, "only confirms my interpretation. I see that it was enacted when Harry Truman was in the White House--wasn't he a loyal follower of Roosevelt?--and the text makes it clear that the People are moving right along in the direction marked by Roosevelt's New Deal. In 1933, they repudiated Big Government; now they are cutting the imperial presidency down to size by limiting incumbents to two terms in office. …