that judges should
not change? It
is the meaning
understood at the
time of the law’s
enactment.
thus manifested in the words used and in secondary materials, such as de- bates at the conventions, public discussion, newspaper articles, dictionaries in use at the time, and the like. Almost no one would deny this; in fact almost everyone would find it obvious to the point of thinking it fatuous to state the matter—except in the case of the Constitution. Why our legal theorists make an exception for the Constitution is worth exploring. The search for the intent of the lawmaker is the everyday procedure of lawyers and judges when they must apply a statute, a contract, a will, or the opinion of a court. To be sure, there are differences in the way we deal with different legal materials, which was the point of John Marshall’s observation in McCulloch v. Maryland that “we must never forget, that it is a constitution we are expounding.”2 By that he meant that narrow, legal- istic reasoning was not to be applied to the document’s broad provisions, a document that could not, by its nature and uses, “partake of the prolixity of a legal code.” But he also wrote there that it was intended that a provi- sion receive a “fair and just interpretation,” which means that the judge is to interpret what is in the text and not something else. . . . Thus, questions of breadth of approach or of room for play in the joints aside, lawyers and judges should seek in the Constitution what they seek in other legal texts: the original meaning of the words.
. . .
If the Constitution is law, then presumably its meaning, like that of all other law, is the meaning the lawmakers were understood to have intend- ed. . . . It is here that the concept of neutral principles, which Wechsler said were essential if the Supreme Court was not to be a naked power organ, comes into play. . . .
The Court cannot, however, avoid being a naked power organ merely by practicing the neutral application of legal principle. The Court can act as a legal rather than a political institution only if it is neutral as well in the way it derives and defines the principles it applies.
Neutrality in the Derivation of Principle
When a judge finds his principle in the Constitution as originally under- stood, the problem of the neutral derivation of principle is solved. The judge accepts the ratifiers’ definition of the appropriate ranges of majority and minority freedom. . . .
This means, of course, that a judge, no matter on what court he sits, may never create new constitutional rights or destroy old ones. Any time he does so, he violates not only the limits to his own authority but, and
for that reason, also violates the rights of the legislature and the people. To put the matter another way, suppose that the United States, like the United Kingdom, had no written constitution and, therefore, no law to apply to strike down acts of the legislature. The U.S. judge, like the U.K. judge, could never properly invalidate a statute or an official action as unconsti- tutional. The very concept of unconstitutionality would be meaningless. The absence of a constitutional provision means the absence of a power of judicial review. But when a U.S. judge is given a set of constitu tional provisions, then, as to anything not covered by those provisions, he is in the same position as the U.K. judge. He has no law to apply and is, quite properly, powerless. In the absence of law, a judge is a functionary without a function.
This is not to say, of course, that majorities may not add to minority freedoms by statute, and indeed a great deal of the legislation that comes out of Congress and the state legislatures does just that. The only thing majorities may not do is invade the liberties the Constitution specifies. In this sense, the concept of original under standing builds in a bias toward individual freedom. Thus, the Su preme Court properly decided in Brown [v. Board of Education] that the equal protection clause of the fourteenth amendment forbids racial segregation or discrimination by any arm of gov- ernment, but, because the Constitu tion addresses only governmental ac- tion, the Court could not address the question of private discrimination. Congress did address it in the Civil Rights Act of 1964 and in subsequent legislation, enlarging minority freedoms beyond those mandated by the Constitution.
Neutrality in the Definition of Principle
The neutral definition of the principle derived from the historic Constitu- tion is also crucial. The Constitution states its principles in majestic gen- eralities that we know cannot be taken as sweepingly as the words alone might suggest. The first amendment states that “Congress shall make no law . . . abridging the freedom of speech,” but no one has ever supposed that Congress could not make some speech unlawful or that it could not make all speech illegal in certain places, at certain times, and under certain circumstances. . . .
But the question of neutral definition remains and is obviously closely related to neutral application. Neutral application can be gained by defin- ing a principle so narrowly that it will fit only a few cases. Thus, [in] Gris- wold [a case in which the Supreme Court invalidated a Connecticut law that prohibited the use of contraceptives], we can make neutral applica tion possible by stating the principle to be that government may not prohibit the use of contraceptives by married couples. But that tactic raises doubts
as to the definition of the principle. Why does it extend only to married couples? Why, out of all forms of sexual behavior, only to the use of con- traceptives? Why, out of all forms of behavior in the home, only to sex? There may be answers, but if there are, they must be given.
Thus, once a principle is derived from the Constitution, its breadth or the level of generality at which it is stated becomes of crucial importance. The judge must not state the principle with so much generality that he transforms it. . . .
. . .
The role of a judge committed to the philosophy of original under- standing is not to “choose a level of abstraction.” Rather, it is to find the meaning of a text—a process which includes finding its degree of gener- ality, which is part of its meaning—and to apply that text to a particular situation, which may be difficult if its meaning is unclear. With many if not most textual provisions, the level of generality which is part of their meaning is readily apparent. The problem is most difficult when dealing with the broadly stated provi sions of the Bill of Rights. . . . In dealing with such provisions, a judge should state the princi ple at the level of generality that the text and historical evidence warrant. The equal protection clause was adopted in order to protect the freed slaves, but its language, being general, applies to all persons. . . . Without meaning to suggest what the historical evidence in fact shows, let us assume we find that the ratifiers intended to guarantee that blacks should be treated by law no worse than whites, but that it is unclear whether whites were intended to be protected from discrimination in favor of blacks. On such evidence, the judge should protect only blacks from discrimination, and Alan Bakke [the plaintiff in the challenge to affirmative action in Regents of the University of California v. Bakke] would not have had a case. The reason is that the next higher level of generality above black equality, which is racial equality, is not shown to be a constitutional principle, and therefore there is nothing to be set against a current legislative majority’s decision to favor blacks. Democratic choice must be accepted by the judge where the Constitution is silent. The test is the reasonableness of the distinc tion, and the level of generality chosen by the ratifiers determines that. If the evidence shows the ratifiers understood racial equality to have been the principle they were enacting, Bakke would have a case. In cases concerning gender and sexual orientation, however, interpretation is not additionally assisted by the presence of known inten- tions. The general language of the clause, however, continues to subject such cases to the test of whether statutory distinctions are reasonable. Sex- ual differences obviously make some distinctions reasonable while others have no apparent basis. That has, in fact, been the rationale on which the law has developed. Society’s treat ment of sexual orientation is based upon