Our Divided Political Heart (23 page)

“And you do look at these other factors,” Roberts went on, “like settled expectations, like the legitimacy of the court, like whether a particular precedent is workable or not, whether a precedent has been eroded by subsequent developments.” He paraphrased Alexander Hamilton as saying in
“Federalist #78,” “
To avoid an arbitrary discretion in the judges
, they need to be bound down by rules and precedents.” This was, one might say, a thoughtful,
conservative
view.

By Roberts’s own standards,
Citizens United
should have gone the other way. Tossing out an established system whose construction went back to 1907 was indeed an act of “arbitrary discretion.” The ban on corporate money in politics had been upheld over many years by justices of various philosophical leanings. It was not the product of a single decision by a temporarily activist Court. And the precedents were clearly workable, since no one was asking the Court to change them, and parties and candidates had long lived by them. They had not been eroded. The corporate ban had been upheld in case after case, no matter where particular court majorities stood on other campaign finance provisions. The ban on corporate contributions was simply taken for granted. As the court had stated just six years earlier, Congress’s power to prohibit direct corporate and union political spending “
has been firmly embedded in our law
.”

Rarely has a case so clearly pitted republican notions of self-government and the community’s right to keep the political system free of corruption against a radical kind of individualism conveying to corporations the same rights as those guaranteed citizens. The Founders played a key role in the dueling opinions of Justice Scalia, who supported the ruling, and Justice Stevens, who denounced the result as threatening “
to undermine the integrity of elected institutions across the Nation
.” The fact that each read the Founders differently pointed to the limits of a jurisprudence based on “original intention,” given the complexity of the Founders’ views and the habit of originalists to be absolutely confident in their ability to read the Founders’ minds.

The Framers, Stevens argued, “took it as a given that corporations could be comprehensively regulated in the service of the public welfare.” The conservative majority “
enlists the Framers in its defense without seriously grappling
with their understandings of corporations or the free speech right, or with the republican principles that underlay those understandings . . . To the contrary, this history helps illuminate just how extraordinarily dissonant the decision is.”

Citing the work of legal scholar Zephyr Teachout, Stevens noted that
“it is fair to say” that the Framers “were obsessed with corruption.” They understood this “
to encompass the dependency of public officeholders
on private interests . . . They discussed corruption ‘more often in the Constitutional Convention than factions, violence, or instability.’ . . . When they brought our constitutional order into being, the Framers had their minds trained on a threat to republican self-government that this Court has lost sight of.”

Scalia barely took Stevens’s argument seriously:

The Framers didn’t like corporations
, the dissent concludes, and therefore it follows (as night the day) that corporations had no rights of free speech. Of course the Framers’ personal affection or disaffection for corporations is relevant only insofar as it can be thought to be reflected in the understood meaning of the text they enacted. . . . Even if we thought it proper to apply the dissent’s approach of excluding from First Amendment coverage what the Founders disliked, and even if we agreed that the Founders disliked founding-era corporations; modern corporations might not qualify for exclusion. Most of the Founders’ resentment towards corporations was directed at the state-granted monopoly privileges that individually chartered corporations enjoyed. Modern corporations do not have such privileges, and would probably have been favored by most of our enterprising Founders—excluding, perhaps, Thomas Jefferson and others favoring perpetuation of an agrarian society.

There is something breathtaking about defending a Court decision that overturned decades of precedent with the remarkably weak assertion that modern corporations “would
probably
have been favored by most of our enterprising Founders,” as if it were possible to know what the Founders would have made of Microsoft, Apple, General Motors, or ExxonMobil. All involved forms of economic organization unknown in 1787 and products that Hamilton, Madison, or Franklin could not have imagined. On the matter of fearing corruption, Stevens was surely closer to the Founders’ republican principles. And the very effort to convert a corporation into an actual person would have been as alien to the Founders as it was to Stevens. He wrote:

Although they make enormous contributions to our society
, corporations are not actually members of it. They cannot vote or run for office. Because they may be managed and controlled by nonresidents, their interests may conflict in fundamental respects with the interests of eligible voters . . . It might also be added that corporations have no consciences, no beliefs, no feelings, no thoughts, no desires. Corporations help structure and facilitate the activities of human beings, to be sure, and their “personhood” often serves as a useful legal fiction. But they are not themselves members of “We the People” by whom and for whom our Constitution was established.

The dissenting justice added a bit of common sense that seemed to escape the Court that day. “
A democracy cannot function effectively
,” he wrote, “when its constituent members believe laws are being bought and sold.”

Thus did conservative originalism help produce a decision about a set of institutions that the Founders would have found peculiar, involving an election campaign process totally unknown to them, on the basis of a theory that they would have considered bizarre.

Arguing that “originalism is hardly the only way to abide by the Constitution,” the historian Jill Lepore made the essential point. “
Setting aside the question of whether it makes good law
,” she wrote in her delightful book
The Whites of Their Eyes
, “it is, generally, lousy history.” It’s possible, she insisted, “to cherish the stability of the law and the durability of the Constitution, as amended over two and a half centuries of change and one civil war, and tested in the courts, without dragging the Founding Fathers from their graves.”

Lepore described the impossibility of placing ourselves in the minds (or the smocks) of our eighteenth-century forebears in about as memorable a way as any writer I have come across:

In eighteenth-century America, I wouldn’t have been able to vote
. I wouldn’t have been able to own property, either. I’d very likely have
been unable to write, and, if I survived childhood, chances are that I’d have died in childbirth. And, no matter how long or short my life, I’d almost certainly have died without having once ventured a political opinion preserved in any historical record, except that none of these factors has any meaning or bearing whatsoever on whether an imaginary eighteenth-century me would have supported the Obama administration’s stimulus package or laws allowing the carrying of concealed weapons or the war in Iraq, because I did not live in eighteenth-century America, and no amount of thinking that I could, not even wearing petticoats, a linsey-woolsey calico smock, and a homespun mobcap, can make it so.

Respect for the Founders and for the words of our Constitution cannot be allowed to become a mandate for trying to turn the twenty-first century into the eighteenth. It cannot become an all-purpose veto of any idea, any advance, any change, any innovation that seems appropriate and just in our times. It cannot become an excuse for skipping over everything that happened since 1787 and ignoring the expansion of democratic rights to previously excluded groups. It cannot ignore the Civil War amendments, which opened the way for full participation of African Americans in our public life. It cannot ignore the Progressive Era amendments, which sought to update our government for the challenges of a new economy and a very different world—and also began the process of recognizing women as full partners in public life.

We should honor the history of what actually happened in 1787 by acknowledging that the writers of the Constitution were gifted men with interests, ideas, and even prejudices. They were human beings like us. They were also visionaries quite prepared to break with the conventions of their times and to push the boundaries of what was then considered possible.

And surely we must get the history of the period right. Rick Perry’s view, cited at the beginning of this chapter, suggests that the Constitution was all about states’ rights. This is flatly wrong. As the legal scholar Garrett Epps has written, conservatives “
claim that the Constitution was set up to restrain
the federal government. If so, there’s precious little evidence of it.
The actual text of the Constitution is overwhelmingly concerned with making sure the new government had enough power; the framers thought the old Articles of Confederation were fatally weak.”

Of course, Epps added, the Constitution also protected rights. The Founders “
didn’t want to set up a government that could throw people in jail
without a good reason, or steal their property, or do away with free elections. The original Constitution prohibited oppressive practices, and the Bill of Rights added other restrictions.” But anyone who reads the 5,000 words agreed upon in Philadelphia cannot escape Epps’s conclusion: that “
the document as a whole is much more concerned
with what the government
can
do—not with what it can’t.”

Originalism itself also needs to be challenged on its own grounds. As the colloquy between Justices Scalia and Stevens on
Citizens United
suggested, there is a serious argument to be had over what the Constitution actually says, and what the Founders actually intended. By many lights, Stevens could be said to have won the argument in the case on originalist grounds alone with his emphasis on corruption and the republican tradition that shaped the Founders’ view. He was pointing to the distance between the Framers’ understandings and the majority’s decision. As Epps points out, originalists not only want to claim that “what the framers said governs.” They also “want to control what counts as what the founders said.” With tongue in cheek—but only partly—Epps argued that Scalia’s originalism often seems inspired by the thought: “
Trust me, I knew the framers
and here’s what they would have said.”

It is thus a salutary development that a new school of originalism has arisen among liberals. It insists that the Framers’ Constitution is a far more progressive document than conservatives have claimed. “
Progressives are losing the fight over the courts
and the Constitution because conservatives have maneuvered us into running from, rather than embracing, the text and history of the Constitution,” argued Doug Kendall and Jim Ryan, legal scholars who are pioneering a progressive originalism. They also pointed to the key flaw in the conservatives’ argument: their desire to focus only on “
the original Constitution
” while ignoring “the whole Constitution as amended throughout the nineteenth and twentieth centuries,” changes that “have often been the result of liberal and progressive reform efforts.” Kendall
and Ryan
cite the distinguished legal scholar Akhil Amar
, the author of
America’s Constitution: A Biography
, who argued that rather than abandon constitutional history, liberals should “claim it as their own.”

Kendall, Ryan, and Amar are key figures in a broad debate among legal progressives over how to reclaim ground that has been ceded to conservative originalists by default. It is an urgent task, even if there are limits to this new liberal originalism. In a 2011 exchange with Kendall and Ryan in
Democracy
journal, legal scholars Geoffrey Stone and William Marshall insisted that “
liberals should not pretend that honest answers
to vexing constitutional questions can be gleaned simply by staring hard at an ambiguous text.” This is true.

It’s also true, as William E. Forbath has argued, that the “public appeal” of the conservative originalists is not based on widespread confidence that their reading of the Constitution is right. Rather, it has “
aroused citizens, lawmakers, and judges
” because it offers a “narrative of a ‘traditional’ nation that it promises to restore: an America dedicated to personal responsibility and limited government, private property and godliness.” There is, Forbath argues, an alternative narrative also deeply embedded in our history: that “
you can’t have what the Framers called a ‘republican form of government,’
and certainly not a constitutional democracy, in the context of gross material inequality among citizens.” Our tradition has resisted such inequalities because they produce oligarchy; because they destroy “
the material independence and security that citizens must have
in order to think and act on their own behalf and participate on a roughly equal footing in the polity and society;” and because they impede “access to basic goods that are the foundation of dignity and standing in one’s own eyes and in the eyes of the community.” In sum: “
The Framers believed that personal liberty and political equality
required a measure of economic independence and material security.” Protecting our constitutional democracy thus demands that we address “our unequal and unfair society.”

Where Kendall, Ryan, Stone, Marshall, and Forbath all agree is that progressives must rejoin the battle for American history. The time has come for a more accurate and less mythologized view of the Founding. We need both a more respectful
and
a more realistic view of the Founders that honors them for their efforts to balance their philosophical principles and
their practical concerns. In particular, as I have been arguing throughout this book, they were republicans
and
liberals, they understood the possibilities
and
limits of government, and they honored individual rights
and
the imperative of building a durable sense of community, nationally as well as locally.