The Politics Of The Constitution

Guests:

Akhil Reed Amar, Yale professor and author of America's Constitution: A Biography

Richard Stengel, managing editor for Time magazine

In the fierce debates over health care, Libya, debt, gay marriage and other issues, Americans have been getting a lecture on the meaning of the Constitution and the intentions of its authors. Andrea Seabrook speaks with Richard Stengel of Time magazine and Yale law professor Akhil Amar about the political divide over the Constitution and how an 18th-century document applies in a 21st-century world.

Copyright © 2011 NPR. For personal, noncommercial use only. See Terms of Use. For other uses, prior permission required.

ANDREA SEABROOK, host: This is TALK OF THE NATION. I'm Andrea Seabrook, in Washington. It's a great American pastime: debating the U.S. Constitution. Even before the framers set their hands to the document, they fought and argued and gnashed their teeth about the powers it would enumerate.

In recent years, Americans have turned to the document again and again, especially since the disputed election in 2000. The past decade or so has been a kind of extended lesson in the meaning of the Constitution and the intentions of its authors.

To name just a few of our current debates, what are the limits on executive power? Think Libya. What are the rights of people within our borders? Think illegal immigration and terrorist detainees. How far does the right to free speech extend? Think children buying violent video games and corporations paying for political campaigns, not to mention gay marriage, health care, the federal budget.

What's your issue, and how does the Constitution inform it? Our number here is 800-989-8255. Email us, talk@npr.org, and you can join the - the Constitution and our conversation on our website. Go to npr.org, and click on TALK OF THE NATION.

Later this hour...

Unidentified Man: Eight, seven, six - four, three, two - zero and liftoff.

(SOUNDBITE OF ROCKET)

SEABROOK: The end of the Space Shuttle program. What will we lose? Send your emails now to that same address, talk@npr.org.

Joining us now from community station WGXE in Hudson, New York, Time magazine's managing editor Richard Stengel. His issue - "One Document Under Siege" is the cover story of the July Fourth issue. Thanks so much for joining us.

RICHARD STENGEL: Great to be here.

SEABROOK: Also with us is Akhil Amar, Sterling Professor of Law and Political Science at Yale University. He's written several books, most recently "America's Constitution: A Biography." He joins us from the studios of Connecticut Public Radio. Thanks for joining us, as well.

AKHIL AMAR: Happy Fourth.

SEABROOK: Let me go with you, start with you, Mr. Stengel, Richard Stengel. We're familiar with the rights we talk about all the time enumerated in the Constitution. But where does it apply where we wouldn't expect?

STENGEL: Where does - what do you mean?

SEABROOK: Well, what I mean is I guess we talk about it a lot in these past decades, and always, I guess, the great American pastime. But what are some ways that it affects our political debate that are surprising?

STENGEL: Well, I find it kind of surprising that people cite the Constitution a lot when it comes to political issues. I mean, that's a relatively recent phenomenon in our modern politics, and I think what we're seeing now is because of the rise of the Tea Party and their fidelity to the Constitution as they interpret it, they are filtering every political issue with a constitutional debate. I mean, I would defer to Akhil on any issue, really, having to do with the Constitution, but my sense is that the Constitution is kind of a guardrail, and it's supposed to prevent us from going off the road. It doesn't necessarily apply to every political debate that we're having, although at the current time, when it comes to Libya, when it comes to the debt ceiling, when it comes to health care and President Obama's proposal, there are constitutional issues, and people are forcing the issue and making them constitutional issues, and that's pretty interesting right now.

SEABROOK: Well, let me ask you: Is this a particularly contentious period, I mean historically, about the meaning of the Constitution? I guess I'll direct that to Akhil Amar.

AMAR: I think it is because thanks in part to constitutional events that took place in the mid-'60s, the Civil Rights Act of 1964 and the Voting Rights Act of 1965, we've witnessed in our lifetime a huge polarization of the political process, the end of conservative Democrats, Southern Democrats, the end of liberal Republicans, so-called Rockefeller Republicans from an earlier era.

So the Democratic Party is more liberal than ever before. The Republican Party is more conservative than ever before, and so that means actually our politics are more partisan and polarized. This is not unique in American history. That happened in the 1860s. Not a single Democrat voted for the 14th Amendment, and virtually every Republican except one voted for it.

So it was a total party-line vote in the 1860s. We're seeing more party-line votes today because of this polarization, and that polarization, as I said, occurred largely because of a political realignment thanks to a voting rights statute that Congress passed in 1965 to vindicate the deep vision of the Reconstruction amendment. So there is more polarization today than was true when you had conservative Democrats from the South and some liberal Republicans from the Northeast.

SEABROOK: Richard Stengel, is that why it often seems these days that the Constitution feels, in public debate anyway, less like a guardrail and more like a bludgeon?

(SOUNDBITE OF LAUGHTER)

STENGEL: Well, you know, I do think that our country has always had these political debates. I mean, the Constitution is meant to be a kind of referee of those political debates. I mean, I wouldn't disagree necessarily with Akhil, but if you look at the periods - and I'm going sort of in reverse chronological order - you know, the '60s, you know, the period where Franklin Roosevelt was trying to pack the court.

If you look at the Civil War era where, you know, Lincoln suspended habeas corpus, and if you go back, you know, to the time that they were writing the Constitution, I mean, it was in crisis in all of those times, in a far deeper way than currently.

I think now the Constitution isn't in crisis, the Constitution is something which we're looking to for some direction, which I think is a good thing. I mean, you know, if we didn't have it - if - you know, there are plenty of, you know, democracies that don't have constitutions, like the U.K.

The fact is, in periods like this of conflict, where as Akhil says there is a great deal of polarization, the Constitution is a great way of saying look, let's try to - let's try to come together around some core principles that we all accept.

SEABROOK: Well, let me lay out some definitions here because we throw about a lot of language when we talk about this, and I think it's easy to sort of fudge it, to get sort of confused about what things mean. So maybe Akhil Amar, could you tell me what does strict constructionist mean? What does originalist mean? How do we call people that aren't strict constructionists? Are they elastic constitutionalists? I mean, could you frame the debate for me?

AMAR: Sure. The phrase "strict construction" really arose as a reaction to the Warren Court. It was popularized by Richard Nixon, who ran against the Warren Court, won on an anti-Warren Court campaign that realigned the political parties.

The South shifted from being solidly Republican in - excuse me, solidly Democratic before, let's say, 1964 to solidly Republican today, and this shift in the mid - beginning in the mid-'60s, let by Richard Nixon with a Southern campaign. Kevin Phillips wrote about this and others. And the phrase that he popularized was strict construction, which is I think somewhat of a code for a certain politically conservative understanding of the Constitution because the so-called strict constructionists believe that there are implicit things, just as the liberals do. They just have a different set of implicit things that they read into the Constitution: sovereign immunity, anti-affirmative-action principles, broad protection for corporate speech and so on.

But strict construction emerged in the discourse, really in the '60s, led by people by - like James Kilpatrick and later Pat Buchanan, Richard Nixon, for a kind of politically conservative jurisprudence that emerged very self-consciously as a reaction against the Warren Court.

SEABROOK: So politically conservative. We're not saying a conservative reading necessarily but a reading that supports political ideology.

AMAR: Politically conservative. They said it cut across the political spectrum, but I think in practice strict construction tends to be a label proudly used by political conservatives and not so much by liberals.

Originalism is something a little different. Originalism - fidelity to the original intent and a vision and purpose and public meaning of the Constitution and its amendments - that's something that even some political liberals have claimed allegiance to. I believe very much in fidelity to the vision, the purpose of various provisions of the Constitution.

Before Ed Meese, before Robert Bork and Nino Scalia and Clarence Thomas popularized a kind of conservative originalism, that was the great Hugo Black, a justice on the Supreme Court from the South, from Alabama, FDR's first appointee to the court.

He was politically liberal, a Democrat, and he famously carried the Constitution around with him, but he was a big believer in the Warren Court and didn't always construe things strictly. He would say he construed things faithfully to the original vision, and faithfully meant, for example, that indigent defendants should get appointed counsel in Gideon v. Wainwright, even if they didn't do that at the founding.

And people should have a right to testify on their own behalf even if that wasn't true at the founding. So he believed in original intent, but he believed in carrying through the basic principles of the Constitution and making them real today.

And so - and there are some political liberals who do today even answer to originalism. I probably am one of them.

SEABROOK: Gentlemen, let's get right to some callers. We have great questions coming in. This is John(ph) in Columbus, Ohio. Hi.

JOHN (Caller): Hi, thanks for taking my call. I guess my question kind of spans many different issues, but one issue that it would include is right to privacy and particularly the Roe v. Wade decision.

What I'm wondering is: From the perspective of a strict constructionist who always - you know, like for example the way Clarence Thomas writes his opinions, trying to cite specific things that were said or done by founding fathers in every single thing, I thought the founding fathers believed in the principle of democracy in which once your turn is done, as far as being in power, being in control, you go off into exile, and you let the new people kind of take over, that they wouldn't want for their - they wouldn't want their forebears to be having a seance with them every single time something is of question. What do you think of that?

AMAR: Well, Clarence Thomas is a very interesting justice, methodologically fascinating, far more generative and powerful than many critics have observed. You talked about privacy. Now, the word privacy doesn't appear in the Constitution, it's true.

SEABROOK: Yes.

AMAR: But the word privileges does, and that sounds a little like privacy. The words privileges and immunities appear actually not just in the original Constitution but in the 14th Amendment. Clarence Thomas, in fact, in a recent case about gun rights, a case called City of Chicago versus McDonald, argued that we should be taking seriously the privileges or immunities clause.

And the privileges or immunities clause talks about, in effect, unenumerated rights. For the conservatives, that might be the right to have a gun in your home. For the liberals, that might be a freedom from a certain effort by the government to tell you whom you can marry and how you can live in your home.

SEABROOK: We're talking about the Constitution and how it informs many of the political debates playing out today. I'm Andrea Seabrook. Stay tuned. This is TALK OF THE NATION, from NPR News.

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SEABROOK: This is TALK OF THE NATION. I'm Andrea Seabrook. We the people of the United States, in order to form a more perfect union, establish justice, ensure domestic tranquility, provide for the common defense, promote the general welfare and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.

The U.S. Constitution and its preamble are more than 200 years old and still play a significant role in debates over - all over the country and on policy, from gay marriage and health care to war powers, immigration, terrorist detainees and many, many others.

What's your issue, and how does the Constitution inform it? Our phone number here is 800-989-8255. Email us at talk@npr.org. You can always join the conversation on our website, npr.org, and click on TALK OF THE NATION.

Our guests today are Akhil Amar. He's a Yale professor. He's written several books on the Constitution, and his most recent is "America's Constitution: A Biography." And Time magazine managing editor Richard Stengel. His article "One Document Under Siege" is the cover story for the July Fourth issue of the magazine.

And gentlemen, let me go straight to the phones with a great question. Here's Michael in - someplace in Florida. Hello, Michael.

MICHAEL (Caller): Hello. How are you? Happy Independence Day.

SEABROOK: Thank you, sir. Go ahead.

MICHAEL: I'm a gay person in a committed relationship of 10 years, and although we've done all the legal paperwork to make our relationship as legal as possible, we're traveling to Vermont this summer to become married.

My question is: As I understand Article IV of the Constitution and the 14th Amendment, how possibly could a conservative court uphold the DOMA, as I see it just clearly - despite what anybody feels morally or socially - clearly DOMA is unconstitutional.

SEABROOK: DOMA meaning the Defense of Marriage Act. Let's turn to you, Richard Stengel. What do you say?

STENGEL: Well, it's a good question. I don't know the answer to it, because the court can decide whatever it wants. But I would put your question in the context of what we were talking about in terms of originalism and the limits of originalism, because I think the framers would certainly not really understand the idea of same-sex marriage.

Marriage, of course, is not mentioned in the Constitution, nor is privacy, as Akhil mentioned it. And I do think that we have evolved socially, in terms of different things that we now believe are morally correct and morally true, and we have to - the Constitution has to adapt.

I mean, I would say that the original vision of the framers, as interpreted, is that they did want equity for all Americans and that they wanted, you know, fairness before the law. And you could argue that, you know, if Madison or Washington or Jefferson were alive today, they would be in favor of same-sex marriage.

SEABROOK: Michael, one thing comes to my mind as you ask your question is just how personal these questions can be. And Akhil Amar, I want to ask you about this point that Richard Stengel is making, this idea of originalism when we're so far, these days, from the original intent of - from the imaginings, the wild imaginings of the framers.

AMAR: Well, so Michael raises a wonderful question, and it's a beautiful illustration. Before I give you my take, my effort to try to harmonize everything, first, Michael, best wishes to you and your partner. Congratulations.

Now, the Declaration of Independence that was signed on July Fourth that we mark today very famously says all men are created equal, that that's what we - we hold these truths to be self-evident. What does it mean to be created equal? One idea is that people, at birth, are supposed to be equal, whether you're born today, we might say, black or white, male or female, Jew or Gentile, gay or straight.

That idea, which Jefferson and his colleagues didn't fully implement, because of course theirs was a slave-holding society...

SEABROOK: And it, in fact, says all men are created equal.

AMAR: Exactly. But now take the 14th Amendment and its first sentence: All persons born or naturalized in the United States are citizens of the United States. So now the idea is all persons, not just all men, all persons are born citizens and therefore born equal. So we should be equal at birth.

It should be about what you do in life, you know, the content of your actions, of your deeds, rather than the circumstances of your birth - again, whether you're born male or female, Jew or Gentile, rich or poor, whether you're born first in the family or third, your inheritance, legal inheritance rights shouldn't matter, whether you're born in wedlock or out of wedlock, and I would say today whether you're born gay or straight.

Now, the Supreme Court hasn't said that yet, but I think that they will within the next decade or decade and a half at the latest, and they will do so in part because they will be in track with evolving social understandings of what really equality means.

There was a time when we thought that separate, Americans - white Americans thought that separate was equal, and eventually we came to realize, as a society, separate wasn't equal, and the Supreme Court said so.

There was a time when whites and blacks couldn't get married, and the Supreme Court in 1967 said, well, of course they can get married, because it's not really equal if only people of the same race can marry each other. And I suspect that one day, within our lifetime, the Supreme Court will say something similar about same-sex marriage. We're not there yet.

SEABROOK: Interesting. Let's - gentlemen, let's do sort of a lightning round here. There are a lot of issues that callers and emails are bringing up, and I want to just touch on them with as succinct answers as we can get. Richard Stengel, what about patents? This is an email from G. Sacks(ph). He asks: Who did the founding fathers intend patents to go to? Who are first authors of ideas, those to file first, or those who first come up with ideas?

(SOUNDBITE OF LAUGHTER)

STENGEL: I don't know the answer to that. I would defer to Akhil on that one.

AMAR: They wanted to protect intellectual property, but in limited ways, in order to promote progress.

SEABROOK: Okay. Let me try you on this one, Richard Stengel. A man from the Marine Corps - he's Darryl(ph) in Bend, Oregon - writes that he uses cannabis daily to treat both his symptoms of PTSD and chronic pain, no narcotics, no alcohol. He wants to know, he uses it responsibly, and he believes that cannabis is - the prohibition of it is unconstitutional for many reasons. Your thoughts?

STENGEL: Well, of course the high court did prohibit the use of alcohol as an amendment, and then that was overturned. I'm not sure that the Constitution says very much about that. But if you look at the use of alcohol and medication, you know, state courts right now, you know, have the predominant opinion about that. And if the states can legalize marijuana, as some states have, then, you know, that's - you should probably live in one of those states.

SEABROOK: Okay, next, my question: Libya, one of the things that's being debated right now. The Constitution gives Congress the right to declare war, makes the president commander-in-chief. So who's right on the Libya question right now, Akhil Amar?

AMAR: I'm with President Obama: small-scale operations, especially in response to emergencies, have not typically required congressional pre-authorization. And that includes Ronald Reagan's invasion of Grenada and Bill Clinton's use of ground troops in Haiti, Jack Kennedy's repulsion of Soviet aggression in the Cuban Missile Crisis.

This is a relatively small-scale operation. There are no American bodybags. There are no serious American casualties. And so it's not the kind of full-blown war that requires congressional pre-authorization.

SEABROOK: Next question is from Paul in Toledo, Ohio. Go ahead.

PAUL (Caller): Hello, yes. My question pertains to the latest Supreme Court ruling, Citizens United, and how that pertains to the Constitution. And where in the Constitution does it say corporations have the same rights as individuals, that corporations are persons? I find this hard to believe when corporations, you know, don't have a deadline - a death, you know. They can live on forever and then accumulate large quantities of wealth and influence. And I think it's really perturbing the political system right now.

SEABROOK: Great question, Paul. And I'll turn it to you, Richard Stengel.

STENGEL: Well, the - you know, I would again defer to Akhil on this. And, I mean, it depends on where you argue. I mean, the Constitution has equities that are all across the continuum. One of them is freedom of speech. I mean, how do you deny anyone or any entity some freedom of speech, even if that entity is - can be very powerful and put a lot of money behind it, as corporations do?

Again, another area where the originalist vision is not necessarily perfectly 20/20. I mean, there were - there was no money in politics in the 18th century. The founders, you know, regarded parties as factions, as they called them. So I'm not sure it's something that there's an originalist vision for. But I would love to hear Akhil on this issue.

SEABROOK: Now hold on, Akhil, I have one more question from a listener that's right along these things. Rocco(ph) in Edwardsville, Illinois, go ahead.

ROCCO (Caller): Yeah. Good day, gentlemen. Thank you for - and ladies - for the discussion. With regard to freedom of speech, I had - I've always had a question regarding limitless money being identified as freedom of speech because I know in - even in high school, in school levels with regard to participating in clubs, campaigns, debates and what have you, everybody is allotted a distinct amount of access and impact, whereas when we allow that money can limitlessly be applied, that's not free - I mean, I don't see where that's freedom of speech.

There should be an equitable or a mechanism, and I wonder - since I'm not the constitutional expert - where in the Constitution it supports the notion that freedom of speech would apply to unlimited, you know, economic limitless power being applied to it as counting for being someone's individual freedom of speech?

SEABROOK: Well, we're lucky to have a constitutional scholar here. Akhil Amar, your answer?

AMAR: I'm sympathetic to that point of view. I think that there is a difference between speech and money. Freedom - there's another free speech clause in the Constitution, even before the First Amendment. It's talking about freedom of speech and debate in Congress, and there, the idea is freedom of speech is in the French parlay, to speak; what's a parliament, is a place where people parlay, they speak. And we don't auction off speech rights in Congress to the highest bidder. We allocate it sort of democratically. You get your turn, I get my turn, if we're equally elected. And it's an idea of equality rather than property as the organizing idea.

Now, that said, operationalizing that is tricky, and I would not try to just prevent corporations from doing anything because Time Inc. is a corporation and so is Random House and so is The New York Times. So corporations have rights. It's how Americans organize. But I am sympathetic to the idea that the deep idea of the First Amendment is an equality idea, democratic idea about political discourse, and property is, by its very nature, allocated unequally. And so there is a deep tension here between kind of democracy and pure capitalism.

SEABROOK: And, of course, the court was divided over the Citizens United case.

AMAR: Right.

SEABROOK: Could you explain...

AMAR: And I'm more sympathetic...

SEABROOK: ...what's the rationale there?

AMAR: Well, the court most recently just last week had another case involving campaign finance out of Arizona. The court divided five to four. In a very deep division, Chief Justice Roberts wrote for the majority, but your listener who spoke - was sympathetic to this - the idea of trying to limit money would find very powerful and very congenial, a very impressive debut opinion by Elena Kagan writing for the four, saying the deep idea here should be, of the First Amendment, really should be democracy and not plutocracy.

SEABROOK: You're listening to TALK OF THE NATION from NPR News. Richard Stengel, another idea is the public debt. The Senate has just canceled its July Fourth holiday recess to try to hammer out a deal in the nation's debt ceiling. You - the take you have on the article is that the Constitution actually speaks about the national debt, and that the actual attempt - the president could in fact go around the Congress' limit there on the debt ceiling.

STENGEL: Well, yes. The - these - I think a little-known clause of the 14th Amendment, Section 4, basically says that the public debt of the U.S. can't be violated. It's one of the only kind of full, you know, 100 percent prescriptions in the Constitution, and it's not something that people pay that much attention to. And I believe that the president could say that in fact the U.S. defaulting on its public debt is unconstitutional, and therefore I, as president, will take these extraordinary measures to avoid that from happening.

And I think certainly if you, again, look at the original intent of the framers, I think, they certainly didn't want the U.S. defaulting on its debt, and part of the reason that the Constitution was created in the first place was to have an organization, a central government that could actually pay off the debts from the Revolution.

SEABROOK: It's something that I wonder about, Akhil Amar, because the Congress has already authorized and appropriated all the money to be spent, and now, they're going to limit the president's ability to use that money. I mean, does it - where does the Constitution come down on that?

AMAR: There's a really interesting conversation going on on a website that might be of interest to your listeners. Balkinization is the website - balkin.blogspot.com and - but if your readers just Google balkinization, they can read some really fascinating conversation among America's top scholars on this question. Here's one thing that - implicit to what Rick said, there're these obscure provisions in the Constitution, and no one pays any attention to them, and then they can suddenly spring to life.

No one talked about the Second Amendment 20 years ago, and now, it's all the rage. The Ninth Amendment sort of lapsed into obscurity. It's about unenumerated rights. It's making a comeback. I keep talking about the privileges or immunities clause. Justice Thomas does too; we're on opposite sides, sometimes, of the political spectrum, but we both think actually this is an important clause, this Section 4 of the 14th Amendment. I had almost never paid any attention to it, and I'd written about the 14th Amendment. And now it's at the center of controversy. A written Constitution is like that because it endures, because actually we can all read it. Its clauses never go away, and they have this really interesting capacity to vault from obscurity into absolutely the center of the limelight at any moment.

SEABROOK: A quick question from Mike in Charlotte, North Carolina. Go ahead.

MIKE (Caller): Hey.

SEABROOK: Hi.

MIKE: First of all, I just got to give you guys a big shout-out and thanking you for this sort of civic discussion. This is the sort of thing that, frankly, some little bit of public funding is appropriate because it's the sort of civic discussion you just don't get in any other media. So thumbs up to NPR on Fourth of July. It's very appropriate.

SEABROOK: Thank you, sir.

MIKE: But let me ask just - one of my big concerns. I'm an attorney in Charlotte, and one of my big concerns is, frankly, how few people seemed to really appreciate the Constitution and how these four pages that were signed 224 years ago in Philadelphia still govern every law that we have in the country. And what I'd like to ask the panel is how we as listeners, we as citizens might be able to engage our fellow citizens in a bit more appreciation of the give and take and just the rarity that we have as a government to still be governed by what this Constitutional Convention did.

Instead of amending the Articles of Confederation, they branched off into this whole new thing - a mere 11 years after, you know, the Fourth of July, and what we can do to get the 17th of September in 1787, as big a date as the Fourth of July in terms of our celebration.

SEABROOK: Mike, thank you so much for your call. It's a great end thought for this conversation about the Constitution. My guests have been Akhil Amar, Yale professor of law and political science, and Richard Stengel, the managing editor for Time magazine. Thanks to both of you, gentlemen.

STENGEL: Thank you.

AMAR: Thank you. Happy Fourth.

SEABROOK: Happy Fourth of July. And coming up, Friday marks the end of the space shuttle era. What we'll we lose? What we'll gain? 800-989-8255 or talk@npr.org. I'm Andrea Seabrook. This is TALK OF THE NATION.

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