THERE’S A SAYING that senators frequently use when asked to describe their firstyear on Capitol Hill: “It’s like drinking from a fire hose.”
The description is apt, for during my first few months in the Senate everything seemedto come at me at once. I had to hire staff and set up offices in Washington and Illinois. Ihad to negotiate committee assignments and get up to speed on the issues pendingbefore the committees. There was the backlog of ten thousand constituent letters thathad accumulated since Election Day, and the three hundred speaking invitations thatwere arriving every week. In half-hour blocks, I was shuttled from the Senate floor tocommittee rooms to hotel lobbies to radio stations, entirely dependent on an assortmentof recently hired staffers in their twenties and thirties to keep me on schedule, hand methe right briefing book, remind me whom I was meeting with, or steer me to the nearestrestroom.
Then, at night, there was the adjustment of living alone. Michelle and I had decided tokeep the family in Chicago, in part because we liked the idea of raising the girls outsidethe hothouse environment of Washington, but also because the arrangement gaveMichelle a circle of support—from her mother, brother, other family, and friends—thatcould help her manage the prolonged absences my job would require. So for the threenights a week that I spent in Washington, I rented a small one-bedroom apartment nearGeorgetown Law School, in a high-rise between Capitol Hill and downtown.
At first, I tried to embrace my newfound solitude, forcing myself to remember thepleasures of bachelorhood—gathering take-out menus from every restaurant in theneighborhood, watching basketball or reading late into the night, hitting the gym for amidnight workout, leaving dishes in the sink and not making my bed. But it was no use;after thirteen years of marriage, I found myself to be fully domesticated, soft andhelpless. My first morning in Washington, I realized I’d forgotten to buy a showercurtain and had to scrunch up against the shower wall in order to avoid flooding thebathroom floor. The next night, watching the game and having a beer, I fell asleep athalftime, and woke up on the couch two hours later with a bad crick in my neck. Take-out food didn’t taste so good anymore; the silence irked me. I found myself callinghome repeatedly, just to listen to my daughters’ voices, aching for the warmth of theirhugs and the sweet smell of their skin.
“Hey, sweetie!”
“Hey, Daddy.”
“What’s happening?”
“Since you called before?”
“Yeah.”
“Nothing. You wanna talk to Mommy?”
There were a handful of senators who also had young families, and whenever we metwe would compare notes on the pros and cons of moving to Washington, as well as thedifficulty in protecting family time from overzealous staff. But most of my newcolleagues were considerably older—the average age was sixty—and so as I made therounds to their offices, their advice usually related to the business of the Senate. Theyexplained to me the advantages of various committee assignments and thetemperaments of various committee chairmen. They offered suggestions on how toorganize staff, whom to talk to for extra office space, and how to manage constituentrequests. Most of the advice I found useful; occasionally it was contradictory. Butamong Democrats at least, my meetings would end with one consistentrecommendation: As soon as possible, they said, I should schedule a meeting withSenator Byrd—not only as a matter of senatorial courtesy, but also because SenatorByrd’s senior position on the Appropriations Committee and general stature in theSenate gave him considerable clout.
At eighty-seven years old, Senator Robert C. Byrd was not simply the dean of theSenate; he had come to be seen as the very embodiment of the Senate, a living,breathing fragment of history. Raised by his aunt and uncle in the hardscrabble coal-mining towns of West Virginia, he possessed a native talent that allowed him to recitelong passages of poetry from memory and play the fiddle with impressive skill. Unableto afford college tuition, he worked as a meat cutter, a produce salesman, and a welderon battleships during World War II. When he returned to West Virginia after the war, hewon a seat in the state legislature, and he was elected to Congress in 1952.
In 1958, he made the jump to the Senate, and during the course of forty-seven years hehad held just about every office available—including six years as majority leader andsix years as minority leader. All the while he maintained the populist impulse that ledhim to focus on delivering tangible benefits to the men and women back home: blacklung benefits and union protections for miners; roads and buildings and electrificationprojects for desperately poor communities. In ten years of night courses while serving inCongress he had earned his law degree, and his grasp of Senate rules was legendary.
Eventually, he had written a four-volume history of the Senate that reflected not justscholarship and discipline but also an unsurpassed love of the institution that had shapedhis life’s work. Indeed, it was said that Senator Byrd’s passion for the Senate wasexceeded only by the tenderness he felt toward his ailing wife of sixty-eight years (whohas since passed away)—and perhaps by his reverence for the Constitution, a pocket-sized copy of which he carried with him wherever he went and often pulled out to wavein the midst of debate.
I had already left a message with Senator Byrd’s office requesting a meeting when Ifirst had an opportunity to see him in person. It was the day of our swearing in, and wehad been in the Old Senate Chamber, a dark, ornate place dominated by a large,gargoyle-like eagle that stretched out over the presiding officer’s chair from an awningof dark, bloodred velvet. The somber setting matched the occasion, as the DemocraticCaucus was meeting to organize itself after the difficult election and the loss of itsleader. After the new leadership team was installed, Minority Leader Harry Reid askedSenator Byrd if he would say a few words. Slowly, the senior senator rose from his seat,a slender man with a still-thick snowy mane, watery blue eyes, and a sharp, prominentnose. For a moment he stood in silence, steadying himself with his cane, his head turnedupward, eyes fixed on the ceiling. Then he began to speak, in somber, measured tones, ahint of the Appalachians like a knotty grain of wood beneath polished veneer.
I don’t recall the specifics of his speech, but I remember the broad themes, cascadingout from the well of the Old Senate Chamber in a rising, Shakespearean rhythm—theclockwork design of the Constitution and the Senate as the essence of that charter’spromise; the dangerous encroachment, year after year, of the Executive Branch on theSenate’s precious independence; the need for every senator to reread our foundingdocuments, so that we might remain steadfast and faithful and true to the meaning of theRepublic. As he spoke, his voice grew more forceful; his forefinger stabbed the air; thedark room seemed to close in on him, until he seemed almost a specter, the spirit ofSenates past, his almost fifty years in these chambers reaching back to touch theprevious fifty years, and the fifty years before that, and the fifty years before that; backto the time when Jefferson, Adams, and Madison roamed through the halls of theCapitol, and the city itself was still wilderness and farmland and swamp.
Back to a time when neither I nor those who looked like me could have sat within thesewalls.
Listening to Senator Byrd speak, I felt with full force all the essential contradictions ofme in this new place, with its marble busts, its arcane traditions, its memories and itsghosts. I pondered the fact that, according to his own autobiography, Senator Byrd hadreceived his first taste of leadership in his early twenties, as a member of the RaleighCounty Ku Klux Klan, an association that he had long disavowed, an error heattributed—no doubt correctly—to the time and place in which he’d been raised, butwhich continued to surface as an issue throughout his career. I thought about how hehad joined other giants of the Senate, like J. William Fulbright of Arkansas and RichardRussell of Georgia, in Southern resistance to civil rights legislation. I wondered if thiswould matter to the liberals who now lionized Senator Byrd for his principledopposition to the Iraq War resolution—the MoveOn.org crowd, the heirs of the politicalcounterculture the senator had spent much of his career disdaining.
I wondered if it should matter. Senator Byrd’s life—like most of ours—has been thestruggle of warring impulses, a twining of darkness and light. And in that sense Irealized that he really was a proper emblem for the Senate, whose rules and designreflect the grand compromise of America’s founding: the bargain between Northernstates and Southern states, the Senate’s role as a guardian against the passions of themoment, a defender of minority rights and state sovereignty, but also a tool to protectthe wealthy from the rabble, and assure slaveholders of noninterference with theirpeculiar institution. Stamped into the very fiber of the Senate, within its genetic code,was the same contest between power and principle that characterized America as awhole, a lasting expression of that great debate among a few brilliant, flawed men thathad concluded with the creation of a form of government unique in its genius—yetblind to the whip and the chain.
The speech ended; fellow senators clapped and congratulated Senator Byrd for hismagnificent oratory. I went over to introduce myself and he grasped my hand warmly,saying how much he looked forward to sitting down for a visit. Walking back to myoffice, I decided I would unpack my old constitutional law books that night and rereadthe document itself. For Senator Byrd was right: To understand what was happening inWashington in 2005, to understand my new job and to understand Senator Byrd, Ineeded to circle back to the start, to America’s earliest debates and founding documents,to trace how they had played out over time, and make judgments in light of subsequenthistory.
IF YOU ASK my eight-year-old what I do for a living, she might say I make laws. Andyet one of the surprising things about Washington is the amount of time spent arguingnot about what the law should be, but rather what the law is. The simplest statute—arequirement, say, that companies provide bathroom breaks to their hourly workers—canbecome the subject of wildly different interpretations, depending on whom you aretalking to: the congressman who sponsored the provision, the staffer who drafted it, thedepartment head whose job it is to enforce it, the lawyer whose client finds itinconvenient, or the judge who may be called upon to apply it.
Some of this is by design, a result of the complex machinery of checks and balances.
The diffusion of power between the branches, as well as between federal and stategovernments, means that no law is ever final, no battle truly finished; there is always theopportunity to strengthen or weaken what appears to be done, to water down aregulation or block its implementation, to contract an agency’s power with a cut in itsbudget, or to seize control of an issue where a vacuum has been left.
Partly it’s the nature of the law itself. Much of the time, the law is settled and plain. Butlife turns up new problems, and lawyers, officials, and citizens debate the meaning ofterms that seemed clear years or even months before. For in the end laws are just wordson a page—words that are sometimes malleable, opaque, as dependent on context andtrust as they are in a story or poem or promise to someone, words whose meanings aresubject to erosion, sometimes collapsing in the blink of an eye.
The legal controversies that were stirring Washington in 2005 went beyond the standardproblems of legal interpretation, however. Instead, they involved the question ofwhether those in power were bound by any rules of law at all.
When it came to questions of national security in the post–9/11 era, for example, theWhite House stood fast against any suggestion that it was answerable to Congress or thecourts. During the hearings to confirm Condoleezza Rice as secretary of state,arguments flared over everything from the scope of Congress’s resolution authorizingthe war in Iraq to the willingness of executive branch members to testify under oath.
During the debate surrounding the confirmation of Alberto Gonzalez, I reviewed memosdrafted in the attorney general’s office suggesting that techniques like sleep deprivationor repeated suffocation did not constitute torture so long as they did not cause “severepain” of the sort “accompanying organ failure, impairment of bodily function, or evendeath”; transcripts that suggested the Geneva Conventions did not apply to “enemycombatants” captured in a war in Afghanistan; opinions that the Fourth Amendment didnot apply to U.S. citizens labeled “enemy combatants” and captured on U.S. soil.
This attitude was by no means confined to the White House. I remember headingtoward the Senate floor one day in early March and being stopped briefly by a dark-haired young man. He led me over to his parents, and explained that they had traveledfrom Florida in a last-ditch effort to save a young woman—Terri Schiavo—who hadfallen into a deep coma, and whose husband was now planning to remove her from lifesupport. It was a heartbreaking story, but I told them there was little precedent forCongress intervening in such cases—not realizing at the time that Tom DeLay and BillFrist made their own precedent.
The scope of presidential power during wartime. The ethics surrounding end-of-lifedecisions. These weren’t easy issues; as much as I disagreed with Republican policies, Ibelieved they were worthy of serious debate. No, what troubled me was the process—orlack of process—by which the White House and its congressional allies disposed ofopposing views; the sense that the rules of governing no longer applied, and that therewere no fixed meanings or standards to which we could appeal. It was as if those inpower had decided that habeas corpus and separation of powers were niceties that onlygot in the way, that they complicated what was obvious (the need to stop terrorists) orimpeded what was right (the sanctity of life) and could therefore be disregarded, or atleast bent to strong wills.
The irony, of course, was that such disregard of the rules and the manipulation oflanguage to achieve a particular outcome were precisely what conservatives had longaccused liberals of doing. It was one of the rationales behind Newt Gingrich’s Contractwith America—the notion that the Democratic barons who then controlled the House ofRepresentatives consistently abused the legislative process for their own gain. It was thebasis for the impeachment proceedings against Bill Clinton, the scorn heaped on the sadphrase “it depends on what the meaning of the word ‘is’ is.” It was the basis ofconservative broadsides against liberal academics, those high priests of politicalcorrectness, it was argued, who refused to acknowledge any eternal truths or hierarchiesof knowledge and indoctrinated America’s youth with dangerous moral relativism.
And it was at the very heart of the conservative assault on the federal courts.
Gaining control of the courts generally and the Supreme Court in particular had becomethe holy grail for a generation of conservative activists—and not just, they insisted,because they viewed the courts as the last bastion of pro-abortion, pro-affirmative-action, pro-homosexual, pro-criminal, pro-regulation, anti-religious liberal elitism.
According to these activists, liberal judges had placed themselves above the law, basingtheir opinions not on the Constitution but on their own whims and desired results,finding rights to abortion or sodomy that did not exist in the text, subverting thedemocratic process and perverting the Founding Fathers’ original intent. To return thecourts to their proper role required the appointment of “strict constructionists” to thefederal bench, men and women who understood the difference between interpreting andmaking law, men and women who would stick to the original meaning of the Founders’
words. Men and women who would follow the rules.
Those on the left saw the situation quite differently. With conservative Republicansmaking gains in the congressional and presidential elections, many liberals viewed thecourts as the only thing standing in the way of a radical effort to roll back civil rights,women’s rights, civil liberties, environmental regulation, church/state separation, andthe entire legacy of the New Deal. During the Bork nomination, advocacy groups andDemocratic leaders organized their opposition with a sophistication that had never beenseen for a judicial confirmation. When the nomination was defeated, conservativesrealized that they would have to build their own grassroots army.
Since then, each side had claimed incremental advances (Scalia and Thomas forconservatives, Ginsburg and Breyer for liberals) and setbacks (for conservatives, thewidely perceived drift toward the center by O’Connor, Kennedy, and especially Souter;for liberals, the packing of lower federal courts with Reagan and Bush I appointees).
Democrats complained loudly when Republicans used control of the JudiciaryCommittee to block sixty-one of Clinton’s appointments to appellate and district courts,and for the brief time that they held the majority, the Democrats tried the same tacticson George W. Bush’s nominees.
But when the Democrats lost their Senate majority in 2002, they had only one arrow leftin their quiver, a strategy that could be summed up in one word, the battle cry aroundwhich the Democratic faithful now rallied:
Filibuster!
The Constitution makes no mention of the filibuster; it is a Senate rule, one that datesback to the very first Congress. The basic idea is simple: Because all Senate business isconducted by unanimous consent, any senator can bring proceedings to a halt byexercising his right to unlimited debate and refusing to move on to the next order ofbusiness. In other words, he can talk. For as long as he wants. He can talk about thesubstance of a pending bill, or about the motion to call the pending bill. He can chooseto read the entire seven-hundred-page defense authorization bill, line by line, into therecord, or relate aspects of the bill to the rise and fall of the Roman Empire, the flight ofthe hummingbird, or the Atlanta phone book. So long as he or like-minded colleaguesare willing to stay on the floor and talk, everything else has to wait—which gives eachsenator an enormous amount of leverage, and a determined minority effective vetopower over any piece of legislation.
The only way to break a filibuster is for three-fifths of the Senate to invoke somethingcalled cloture—that is, the cessation of debate. Effectively this means that every actionpending before the Senate—every bill, resolution, or nomination—needs the support ofsixty senators rather than a simple majority. A series of complex rules has evolved,allowing both filibusters and cloture votes to proceed without fanfare: Just the threat ofa filibuster will often be enough to get the majority leader’s attention, and a cloture votewill then be organized without anybody having to spend their evenings sleeping inarmchairs and cots. But throughout the Senate’s modern history, the filibuster hasremained a preciously guarded prerogative, one of the distinguishing features, it issaid—along with six-year terms and the allocation of two senators to each state,regardless of population—that separates the Senate from the House and serves as afirewall against the dangers of majority overreach.
There is another, grimmer history to the filibuster, though, one that carries specialrelevance for me. For almost a century, the filibuster was the South’s weapon of choicein its efforts to protect Jim Crow from federal interference, the legal blockade thateffectively gutted the Fourteenth and Fifteenth Amendments. Decade after decade,courtly, erudite men like Senator Richard B. Russell of Georgia (after whom the mostelegant suite of Senate offices is named) used the filibuster to choke off any and everypiece of civil rights legislation before the Senate, whether voting rights bills, or fairemployment bills, or anti-lynching bills. With words, with rules, with procedures andprecedents—with law—Southern senators had succeeded in perpetuating blacksubjugation in ways that mere violence never could. The filibuster hadn’t just stoppedbills. For many blacks in the South, the filibuster had snuffed out hope.
Democrats used the filibuster sparingly in George Bush’s first term: Of the President’stwo-hundred-plus judicial nominees, only ten were prevented from getting to the floorfor an up-or-down vote. Still, all ten were nominees to appellate courts, the courts thatcounted; all ten were standard-bearers for the conservative cause; and if Democratsmaintained their filibuster on these ten fine jurists, conservatives argued, there would benothing to prevent them from having their way with future Supreme Court nominees.
So it came to pass that President Bush—emboldened by a bigger Republican majority inthe Senate and his self-proclaimed mandate—decided in the first few weeks of hissecond term to renominate seven previously filibustered judges. As a poke in the eye tothe Democrats, it produced the desired response. Democratic Leader Harry Reid calledit “a big wet kiss to the far right” and renewed the threat of a filibuster. Advocacygroups on the left and the right rushed to their posts and sent out all-points alerts,dispatching emails and direct mail that implored donors to fund the air wars to come.
Republicans, sensing that this was the time to go in for the kill, announced that ifDemocrats continued in their obstructionist ways, they would have no choice but toinvoke the dreaded “nuclear option,” a novel procedural maneuver that would involvethe Senate’s presiding officer (perhaps Vice President Cheney himself) ignoring theopinion of the Senate parliamentarian, breaking two hundred years of Senate precedent,and deciding, with a simple bang of the gavel, that the use of filibusters was no longerpermissible under the Senate rules—at least when it came to judicial nominations.
To me, the threat to eliminate the filibuster on judicial nominations was just one moreexample of Republicans changing the rules in the middle of the game. Moreover, a goodargument could be made that a vote on judicial nominations was precisely the situationwhere the filibuster’s supermajority requirement made sense: Because federal judgesreceive lifetime appointments and often serve through the terms of multiple presidents,it behooves a president—and benefits our democracy—to find moderate nominees whocan garner some measure of bipartisan support. Few of the Bush nominees in questionfell into the “moderate” category; rather, they showed a pattern of hostility toward civilrights, privacy, and checks on executive power that put them to the right of even mostRepublican judges (one particularly troubling nominee had derisively called SocialSecurity and other New Deal programs “the triumph of our own socialist revolution”).
Still, I remember muffling a laugh the first time I heard the term “nuclear option.” Itseemed to perfectly capture the loss of perspective that had come to characterize judicialconfirmations, part of the spin-fest that permitted groups on the left to run ads featuringscenes of Jimmy Stewart’s Mr. Smith Goes to Washington without any mention thatStrom Thurmond and Jim Eastland had played Mr. Smith in real life; the shamelessmythologizing that allowed Southern Republicans to rise on the Senate floor andsomberly intone about the impropriety of filibusters, without even a peep ofacknowledgment that it was the politicians from their states—their direct politicalforebears—who had perfected the art for a malicious cause.
Not many of my fellow Democrats appreciated the irony. As the judicial confirmationprocess began heating up, I had a conversation with a friend in which I admittedconcern with some of the strategies we were using to discredit and block nominees. Ihad no doubt of the damage that some of Bush’s judicial nominees might do; I wouldsupport the filibuster of some of these judges, if only to signal to the White House theneed to moderate its next selections. But elections ultimately meant something, I toldmy friend. Instead of relying on Senate procedures, there was one way to ensure thatjudges on the bench reflected our values, and that was to win at the polls.
My friend shook her head vehemently. “Do you really think that if the situations werereversed, Republicans would have any qualms about using the filibuster?” she asked.
I didn’t. And yet I doubted that our use of the filibuster would dispel the image ofDemocrats always being on the defensive—a perception that we used the courts andlawyers and procedural tricks to avoid having to win over popular opinion. Theperception wasn’t entirely fair: Republicans no less than Democrats often asked thecourts to overturn democratic decisions (like campaign finance laws) that they didn’tlike. Still, I wondered if, in our reliance on the courts to vindicate not only our rights butalso our values, progressives had lost too much faith in democracy.
Just as conservatives appeared to have lost any sense that democracy must be more thanwhat the majority insists upon. I thought back to an afternoon several years earlier,when as a member of the Illinois legislature I had argued for an amendment to include amother’s health exception in a Republican bill to ban partial-birth abortion. Theamendment failed on a party line vote, and afterward, I stepped out into the hallwaywith one of my Republican colleagues. Without the amendment, I said, the law wouldbe struck down by the courts as unconstitutional. He turned to me and said it didn’tmatter what amendment was attached—judges would do whatever they wanted to doanyway.
“It’s all politics,” he had said, turning to leave. “And right now we’ve got the votes.”
DO ANY OF these fights matter? For many of us, arguments over Senate procedure,separation of powers, judicial nominations, and rules of constitutional interpretationseem pretty esoteric, distant from our everyday concerns—just one more example ofpartisan jousting.
In fact, they do matter. Not only because the procedural rules of our government helpdefine the results—on everything from whether the government can regulate polluters towhether government can tap your phone—but because they define our democracy justas much as elections do. Our system of self-governance is an intricate affair; it isthrough that system, and by respecting that system, that we give shape to our values andshared commitments.
Of course, I’m biased. For ten years before coming to Washington, I taughtconstitutional law at the University of Chicago. I loved the law school classroom: thestripped-down nature of it, the high-wire act of standing in front of a room at thebeginning of each class with just blackboard and chalk, the students taking measure ofme, some intent or apprehensive, others demonstrative in their boredom, the tensionbroken by my first question—“What’s this case about?”—and the hands tentativelyrising, the initial responses and me pushing back against whatever arguments surfaced,until slowly the bare words were peeled back and what had appeared dry and lifelessjust a few minutes before suddenly came alive, and my students’ eyes stirred, the textbecoming for them a part not just of the past but of their present and their future.
Sometimes I imagined my work to be not so different from the work of the theologyprofessors who taught across campus—for, as I suspect was true for those teachingScripture, I found that my students often felt they knew the Constitution without havingreally read it. They were accustomed to plucking out phrases that they’d heard andusing them to bolster their immediate arguments, or ignoring passages that seemed tocontradict their views.
But what I appreciated most about teaching constitutional law, what I wanted mystudents to appreciate, was just how accessible the relevant documents remain after twocenturies. My students may have used me as a guide, but they needed no intermediary,for unlike the books of Timothy or Luke, the founding documents—the Declaration ofIndependence, the Federalist Papers, and the Constitution—present themselves as theproduct of men. We have a record of the Founders’ intentions, I would tell my students,their arguments and their palace intrigues. If we can’t always divine what was in theirhearts, we can at least cut through the mist of time and have some sense of the coreideals that motivated their work.
So how should we understand our Constitution, and what does it say about the currentcontroversies surrounding the courts? To begin with, a careful reading of our foundingdocuments reminds us just how much all of our attitudes have been shaped by them.
Take the idea of inalienable rights. More than two hundred years after the Declarationof Independence was written and the Bill of Rights was ratified, we continue to argueabout the meaning of a “reasonable” search, or whether the Second Amendmentprohibits all gun regulation, or whether the desecration of the flag should be consideredspeech. We debate whether such basic common-law rights as the right to marry or theright to maintain our bodily integrity are implicitly, if not explicitly, recognized by theConstitution, and whether these rights encompass personal decisions involving abortion,or end-of-life care, or homosexual partnerships.
And yet for all our disagreements we would be hard pressed to find a conservative orliberal in America today, whether Republican or Democrat, academic or layman, whodoesn’t subscribe to the basic set of individual liberties identified by the Founders andenshrined in our Constitution and our common law: the right to speak our minds; theright to worship how and if we wish; the right to peaceably assemble to petition ourgovernment; the right to own, buy, and sell property and not have it taken without faircompensation; the right to be free from unreasonable searches and seizures; the right notto be detained by the state without due process; the right to a fair and speedy trial; andthe right to make our own determinations, with minimal restriction, regarding familylife and the way we raise our children.
We consider these rights to be universal, a codification of liberty’s meaning,constraining all levels of government and applicable to all people within the boundariesof our political community. Moreover, we recognize that the very idea of theseuniversal rights presupposes the equal worth of every individual. In that sense, whereverwe lie on the political spectrum, we all subscribe to the Founders’ teachings.
We also understand that a declaration is not a government; a creed is not enough. TheFounders recognized that there were seeds of anarchy in the idea of individual freedom,an intoxicating danger in the idea of equality, for if everybody is truly free, without theconstraints of birth or rank or an inherited social order—if my notion of faith is nobetter or worse than yours, and my notions of truth and goodness and beauty are as trueand good and beautiful as yours—then how can we ever hope to form a society thatcoheres? Enlightenment thinkers like Hobbes and Locke suggested that free men wouldform governments as a bargain to ensure that one man’s freedom did not becomeanother man’s tyranny; that they would sacrifice individual license to better preservetheir liberty. And building on this concept, political theorists writing before theAmerican Revolution concluded that only a democracy could fulfill the need for bothfreedom and order—a form of government in which those who are governed grant theirconsent, and the laws constraining liberty are uniform, predictable, and transparent,applying equally to the rulers and the ruled.
The Founders were steeped in these theories, and yet they were faced with adiscouraging fact: In the history of the world to that point, there were scant examples offunctioning democracies, and none that were larger than the city-states of ancientGreece. With thirteen far-flung states and a diverse population of three or four million,an Athenian model of democracy was out of the question, the direct democracy of theNew England town meeting unmanageable. A republican form of government, in whichthe people elected representatives, seemed more promising, but even the most optimisticrepublicans had assumed that such a system could work only for a geographicallycompact and homogeneous political community—a community in which a commonculture, a common faith, and a well-developed set of civic virtues on the part of eachand every citizen limited contention and strife.
The solution that the Founders arrived at, after contentious debate and multiple drafts,proved to be their novel contribution to the world. The outlines of Madison’sconstitutional architecture are so familiar that even schoolchildren can recite them: notonly rule of law and representative government, not just a bill of rights, but also theseparation of the national government into three coequal branches, a bicameralCongress, and a concept of federalism that preserved authority in state governments, allof it designed to diffuse power, check factions, balance interests, and prevent tyranny byeither the few or the many. Moreover, our history has vindicated one of the Founders’
central insights: that republican self-government could actually work better in a largeand diverse society, where, in Hamilton’s words, the “jarring of parties” and differencesof opinion could “promote deliberation and circumspection.” As with our understandingof the Declaration, we debate the details of constitutional construction; we may object toCongress’s abuse of expanded commerce clause powers to the detriment of the states, orto the erosion of Congress’s power to declare war. But we are confident in thefundamental soundness of the Founders’ blueprints and the democratic house thatresulted. Conservative or liberal, we are all constitutionalists.
So if we all believe in individual liberty and we all believe in these rules of democracy,what is the modern argument between conservatives and liberals really about? If we’rehonest with ourselves, we’ll admit that much of the time we are arguing about results—the actual decisions that the courts and the legislature make about the profound anddifficult issues that help shape our lives. Should we let teachers lead our children inprayer and leave open the possibility that the minority faiths of some children arediminished? Or do we forbid such prayer and force parents of faith to hand over theirchildren to a secular world eight hours a day? Is a university being fair by taking thehistory of racial discrimination and exclusion into account when filling a limitednumber of slots in its medical school? Or does fairness demand that universities treatevery applicant in a color-blind fashion? More often than not, if a particular proceduralrule—the right to filibuster, say, or the Supreme Court’s approach to constitutionalinterpretation—helps us win the argument and yields the outcome we want, then for thatmoment at least we think it’s a pretty good rule. If it doesn’t help us win, then we tendnot to like it so much.
In that sense, my colleague in the Illinois legislature was right when he said that today’sconstitutional arguments can’t be separated from politics. But there’s more than justoutcomes at stake in our current debates about the Constitution and the proper role ofthe courts. We’re also arguing about how to argue—the means, in a big, crowded, noisydemocracy, of settling our disputes peacefully. We want to get our way, but most of usalso recognize the need for consistency, predictability, and coherence. We want therules governing our democracy to be fair.
And so, when we get in a tussle about abortion or flag burning, we appeal to a higherauthority—the Founding Fathers and the Constitution’s ratifiers—to give us moredirection. Some, like Justice Scalia, conclude that the original understanding must befollowed and that if we strictly obey this rule, then democracy is respected.
Others, like Justice Breyer, don’t dispute that the original meaning of constitutionalprovisions matters. But they insist that sometimes the original understanding can takeyou only so far—that on the truly hard cases, the truly big arguments, we have to takecontext, history, and the practical outcomes of a decision into account. According to thisview, the Founding Fathers and original ratifiers have told us how to think but are nolonger around to tell us what to think. We are on our own, and have only our ownreason and our judgment to rely on.
Who’s right? I’m not unsympathetic to Justice Scalia’s position; after all, in many casesthe language of the Constitution is perfectly clear and can be strictly applied. We don’thave to interpret how often elections are held, for example, or how old a president mustbe, and whenever possible judges should hew as closely as possible to the clear meaningof the text.
Moreover, I understand the strict constructionists’ reverence for the Founders; indeed,I’ve often wondered whether the Founders themselves recognized at the time the scopeof their accomplishment. They didn’t simply design the Constitution in the wake ofrevolution; they wrote the Federalist Papers to support it, shepherded the documentthrough ratification, and amended it with the Bill of Rights—all in the span of a fewshort years. As we read these documents, they seem so incredibly right that it’s easy tobelieve they are the result of natural law if not divine inspiration. So I appreciate thetemptation on the part of Justice Scalia and others to assume our democracy should betreated as fixed and unwavering; the fundamentalist faith that if the originalunderstanding of the Constitution is followed without question or deviation, and if weremain true to the rules that the Founders set forth, as they intended, then we will berewarded and all good will flow.
Ultimately, though, I have to side with Justice Breyer’s view of the Constitution—that itis not a static but rather a living document, and must be read in the context of an ever-changing world.
How could it be otherwise? The constitutional text provides us with the generalprinciple that we aren’t subject to unreasonable searches by the government. It can’t tellus the Founders’ specific views on the reasonableness of an NSA computer data-miningoperation. The constitutional text tells us that freedom of speech must be protected, butit doesn’t tell us what such freedom means in the context of the Internet.
Moreover, while much of the Constitution’s language is clear and can be strictlyapplied, our understanding of many of its most important provisions—like the dueprocess clause and the equal protection clause—has evolved greatly over time. Theoriginal understanding of the Fourteenth Amendment, for example, would certainlyallow sex discrimination and might even allow racial segregation—an understanding ofequality to which few of us would want to return.
Finally, anyone looking to resolve our modern constitutional dispute through strictconstruction has one more problem: The Founders and ratifiers themselves disagreedprofoundly, vehemently, on the meaning of their masterpiece. Before the ink on theconstitutional parchment was dry, arguments had erupted, not just about minorprovisions but about first principles, not just between peripheral figures but within theRevolution’s very core. They argued about how much power the national governmentshould have—to regulate the economy, to supersede state laws, to form a standingarmy, or to assume debt. They argued about the president’s role in establishing treatieswith foreign powers, and about the Supreme Court’s role in determining the law. Theyargued about the meaning of such basic rights as freedom of speech and freedom ofassembly, and on several occasions, when the fragile state seemed threatened, they werenot averse to ignoring those rights altogether. Given what we know of this scrum, withall its shifting alliances and occasionally underhanded tactics, it is unrealistic to believethat a judge, two hundred years later, can somehow discern the original intent of theFounders or ratifiers.
Some historians and legal theorists take the argument against strict construction onestep further. They conclude that the Constitution itself was largely a happy accident, adocument cobbled together not as the result of principle but as the result of power andpassion; that we can never hope to discern the Founders’ “original intentions” since theintentions of Jefferson were never those of Hamilton, and those of Hamilton differedgreatly from those of Adams; that because the “rules” of the Constitution werecontingent on time and place and the ambitions of the men who drafted them, ourinterpretation of the rules will necessarily reflect the same contingency, the same rawcompetition, the same imperatives—cloaked in high-minded phrasing—of thosefactions that ultimately prevail. And just as I recognize the comfort offered by the strictconstructionist, so I see a certain appeal to this shattering of myth, to the temptation tobelieve that the constitutional text doesn’t constrain us much at all, so that we are free toassert our own values unencumbered by fidelity to the stodgy traditions of a distant past.
It’s the freedom of the relativist, the rule breaker, the teenager who has discovered hisparents are imperfect and has learned to play one off of the other—the freedom of theapostate.
And yet, ultimately, such apostasy leaves me unsatisfied as well. Maybe I am toosteeped in the myth of the founding to reject it entirely. Maybe like those who rejectDarwin in favor of intelligent design, I prefer to assume that someone’s at the wheel. Inthe end, the question I keep asking myself is why, if the Constitution is only aboutpower and not about principle, if all we are doing is just making it up as we go along,has our own republic not only survived but served as the rough model for so many ofthe successful societies on earth?
The answer I settle on—which is by no means original to me—requires a shift inmetaphors, one that sees our democracy not as a house to be built, but as a conversationto be had. According to this conception, the genius of Madison’s design is not that itprovides us a fixed blueprint for action, the way a draftsman plots a building’sconstruction. It provides us with a framework and with rules, but fidelity to these ruleswill not guarantee a just society or assure agreement on what’s right. It won’t tell uswhether abortion is good or bad, a decision for a woman to make or a decision for alegislature. Nor will it tell us whether school prayer is better than no prayer at all.
What the framework of our Constitution can do is organize the way by which we argueabout our future. All of its elaborate machinery—its separation of powers and checksand balances and federalist principles and Bill of Rights—are designed to force us into aconversation, a “deliberative democracy” in which all citizens are required to engage ina process of testing their ideas against an external reality, persuading others of theirpoint of view, and building shifting alliances of consent. Because power in ourgovernment is so diffuse, the process of making law in America compels us to entertainthe possibility that we are not always right and to sometimes change our minds; itchallenges us to examine our motives and our interests constantly, and suggests thatboth our individual and collective judgments are at once legitimate and highly fallible.
The historical record supports such a view. After all, if there was one impulse shared byall the Founders, it was a rejection of all forms of absolute authority, whether the king,the theocrat, the general, the oligarch, the dictator, the majority, or anyone else whoclaims to make choices for us. George Washington declined Caesar’s crown because ofthis impulse, and stepped down after two terms. Hamilton’s plans for leading a NewArmy foundered and Adams’s reputation after the Alien and Sedition Acts suffered forfailing to abide by this impulse. It was Jefferson, not some liberal judge in the sixties,who called for a wall between church and state—and if we have declined to heedJefferson’s advice to engage in a revolution every two or three generations, it’s onlybecause the Constitution itself proved a sufficient defense against tyranny.
It’s not just absolute power that the Founders sought to prevent. Implicit in its structure,in the very idea of ordered liberty, was a rejection of absolute truth, the infallibility ofany idea or ideology or theology or “ism,” any tyrannical consistency that might lockfuture generations into a single, unalterable course, or drive both majorities andminorities into the cruelties of the Inquisition, the pogrom, the gulag, or the jihad. TheFounders may have trusted in God, but true to the Enlightenment spirit, they also trustedin the minds and senses that God had given them. They were suspicious of abstractionand liked asking questions, which is why at every turn in our early history theoryyielded to fact and necessity. Jefferson helped consolidate the power of the nationalgovernment even as he claimed to deplore and reject such power. Adams’s ideal of apolitics grounded solely in the public interest—a politics without politics—was provenobsolete the moment Washington stepped down from office. It may be the vision of theFounders that inspires us, but it was their realism, their practicality and flexibility andcuriosity, that ensured the Union’s survival.
I confess that there is a fundamental humility to this reading of the Constitution and ourdemocratic process. It seems to champion compromise, modesty, and muddlingthrough; to justify logrolling, deal-making, self-interest, pork barrels, paralysis, andinefficiency—all the sausage-making that no one wants to see and that editorialiststhroughout our history have often labeled as corrupt. And yet I think we make a mistakein assuming that democratic deliberation requires abandonment of our highest ideals, orof a commitment to the common good. After all, the Constitution ensures our freespeech not just so that we can shout at one another as loud as we please, deaf to whatothers might have to say (although we have that right). It also offers us the possibility ofa genuine marketplace of ideas, one in which the “jarring of parties” works on behalf of“deliberation and circumspection”; a marketplace in which, through debate andcompetition, we can expand our perspective, change our minds, and eventually arrivenot merely at agreements but at sound and fair agreements.
The Constitution’s system of checks and balances, separation of powers, and federalismmay often lead to groups with fixed interests angling and sparring for narrow advantage,but it doesn’t have to. Such diffusion of power may also force groups to take otherinterests into account and, indeed, may even alter over time how those groups think andfeel about their own interests.
The rejection of absolutism implicit in our constitutional structure may sometimes makeour politics seem unprincipled. But for most of our history it has encouraged the veryprocess of information gathering, analysis, and argument that allows us to make better,if not perfect, choices, not only about the means to our ends but also about the endsthemselves. Whether we are for or against affirmative action, for or against prayer inschools, we must test out our ideals, vision, and values against the realities of a commonlife, so that over time they may be refined, discarded, or replaced by new ideals, sharpervisions, deeper values. Indeed, it is that process, according to Madison, that broughtabout the Constitution itself, through a convention in which “no man felt himselfobliged to retain his opinions any longer than he was satisfied of their propriety andtruth, and was open to the force of argument.”
IN SUM, the Constitution envisions a road map by which we marry passion to reason,the ideal of individual freedom to the demands of community. And the amazing thing isthat it’s worked. Through the early days of the Union, through depressions and worldwars, through the multiple transformations of the economy and Western expansion andthe arrival of millions of immigrants to our shores, our democracy has not only survivedbut has thrived. It has been tested, of course, during times of war and fear, and it will nodoubt be tested again in the future.
But only once has the conversation broken down completely, and that was over the onesubject the Founders refused to talk about.
The Declaration of Independence may have been, in the words of historian Joseph Ellis,“a transformative moment in world history, when all laws and human relationshipsdependent on coercion would be swept away forever.” But that spirit of liberty didn’textend, in the minds of the Founders, to the slaves who worked their fields, made theirbeds, and nursed their children.
The Constitution’s exquisite machinery would secure the rights of citizens, thosedeemed members of America’s political community. But it provided no protection tothose outside the constitutional circle—the Native American whose treaties provedworthless before the court of the conqueror, or the black man Dred Scott, who wouldwalk into the Supreme Court a free man and leave a slave.
Democratic deliberation might have been sufficient to expand the franchise to whitemen without property and eventually women; reason, argument, and Americanpragmatism might have eased the economic growing pains of a great nation and helpedlessen religious and class tensions that would plague other nations. But deliberationalone could not provide the slave his freedom or cleanse America of its original sin. Inthe end, it was the sword that would sever his chains.
What does this say about our democracy? There’s a school of thought that sees theFounding Fathers only as hypocrites and the Constitution only as a betrayal of the grandideals set forth by the Declaration of Independence; that agrees with early abolitioniststhat the Great Compromise between North and South was a pact with the Devil. Others,representing the safer, more conventional wisdom, will insist that all the constitutionalcompromise on slavery—the omission of abolitionist sentiments from the original draftof the Declaration, the Three-fifths Clause and the Fugitive Slave Clause and theImportation Clause, the self-imposed gag rule that the Twenty-fourth Congress wouldplace on all debate regarding the issue of slavery, the very structure of federalism andthe Senate—was a necessary, if unfortunate, requirement for the formation of theUnion; that in their silence, the Founders only sought to postpone what they werecertain would be slavery’s ultimate demise; that this single lapse cannot detract from thegenius of the Constitution, which permitted the space for abolitionists to rally and thedebate to proceed, and provided the framework by which, after the Civil War had beenfought, the Thirteenth, Fourteenth, and Fifteenth Amendments could be passed, and theUnion finally perfected.
How can I, an American with the blood of Africa coursing through my veins, choosesides in such a dispute? I can’t. I love America too much, am too invested in what thiscountry has become, too committed to its institutions, its beauty, and even its ugliness,to focus entirely on the circumstances of its birth. But neither can I brush aside themagnitude of the injustice done, or erase the ghosts of generations past, or ignore theopen wound, the aching spirit, that ails this country still.
The best I can do in the face of our history is remind myself that it has not always beenthe pragmatist, the voice of reason, or the force of compromise, that has created theconditions for liberty. The hard, cold facts remind me that it was unbending idealistslike William Lloyd Garrison who first sounded the clarion call for justice; that it wasslaves and former slaves, men like Denmark Vesey and Frederick Douglass and womenlike Harriet Tubman, who recognized power would concede nothing without a fight. Itwas the wild-eyed prophecies of John Brown, his willingness to spill blood and not justwords on behalf of his visions, that helped force the issue of a nation half slave and halffree. I’m reminded that deliberation and the constitutional order may sometimes be theluxury of the powerful, and that it has sometimes been the cranks, the zealots, theprophets, the agitators, and the unreasonable—in other words, the absolutists—that havefought for a new order. Knowing this, I can’t summarily dismiss those possessed ofsimilar certainty today—the antiabortion activist who pickets my town hall meeting, orthe animal rights activist who raids a laboratory—no matter how deeply I disagree withtheir views. I am robbed even of the certainty of uncertainty—for sometimes absolutetruths may well be absolute.
I’M LEFT THEN with Lincoln, who like no man before or since understood both thedeliberative function of our democracy and the limits of such deliberation. Weremember him for the firmness and depth of his convictions—his unyielding oppositionto slavery and his determination that a house divided could not stand. But his presidencywas guided by a practicality that would distress us today, a practicality that led him totest various bargains with the South in order to maintain the Union without war; toappoint and discard general after general, strategy after strategy, once war broke out; tostretch the Constitution to the breaking point in order to see the war through to asuccessful conclusion. I like to believe that for Lincoln, it was never a matter ofabandoning conviction for the sake of expediency. Rather, it was a matter ofmaintaining within himself the balance between two contradictory ideas—that we musttalk and reach for common understandings, precisely because all of us are imperfect andcan never act with the certainty that God is on our side; and yet at times we must actnonetheless, as if we are certain, protected from error only by providence.
That self-awareness, that humility, led Lincoln to advance his principles through theframework of our democracy, through speeches and debate, through the reasonedarguments that might appeal to the better angels of our nature. It was this same humilitythat allowed him, once the conversation between North and South broke down and warbecame inevitable, to resist the temptation to demonize the fathers and sons who didbattle on the other side, or to diminish the horror of war, no matter how just it might be.
The blood of slaves reminds us that our pragmatism can sometimes be moral cowardice.
Lincoln, and those buried at Gettysburg, remind us that we should pursue our ownabsolute truths only if we acknowledge that there may be a terrible price to pay.
SUCH LATE-NIGHT meditations proved unnecessary in my immediate decision aboutGeorge W. Bush’s nominees to the federal court of appeals. In the end, the crisis in theSenate was averted, or at least postponed: Seven Democratic senators agreed not tofilibuster three of Bush’s five controversial nominees, and pledged that in the futurethey would reserve the filibuster for more “extraordinary circumstances.” In exchange,seven Republicans agreed to vote against a “nuclear option” that would permanentlyeliminate the filibuster—again, with the caveat that they could change their minds in theevent of “extraordinary circumstances.” What constituted “extraordinary circumstances”
no one could say, and both Democratic and Republican activists, itching for a fight,complained bitterly at what they perceived to be their side’s capitulation.
I declined to be a part of what would be called the Gang of Fourteen; given the profilesof some of the judges involved, it was hard to see what judicial nominee might be somuch worse as to constitute an “extraordinary circumstance” worthy of filibuster. Still, Icould not fault my colleagues for their efforts. The Democrats involved had made apractical decision—without the deal, the “nuclear option” would have likely gonethrough.
No one was more ecstatic with this turn of events than Senator Byrd. The day the dealwas announced, he walked triumphantly down the halls of the Capitol with RepublicanJohn Warner of Virginia, the younger members of the Gang trailing behind the oldlions. “We have kept the Republic!” Senator Byrd announced to a pack of reporters, andI smiled to myself, thinking back to the visit that the two of us had finally been able toarrange a few months earlier.
It was in Senator Byrd’s hideaway on the first floor of the Capitol, tucked alongside aseries of small, beautifully painted rooms where Senate committees once regularly met.
His secretary had led me into his private office, which was filled with books and whatlooked to be aging manuscripts, the walls lined with old photographs and campaignmemorabilia. Senator Byrd asked me if it would be all right if we took a fewphotographs together, and we shook hands and smiled for the photographer who waspresent. After the secretary and the photographer had left, we sat down in a pair of well-worn chairs. I inquired after his wife, who I had heard had taken a turn for the worse,and asked about some of the figures in the photos. Eventually I asked him what advicehe would give me as a new member of the Senate.
“Learn the rules,” he said. “Not just the rules, but the precedents as well.” He pointed toa series of thick binders behind him, each one affixed with a handwritten label. “Notmany people bother to learn them these days. Everything is so rushed, so manydemands on a senator’s time. But these rules unlock the power of the Senate. They’rethe keys to the kingdom.”
We spoke about the Senate’s past, the presidents he had known, the bills he hadmanaged. He told me I would do well in the Senate but that I shouldn’t be in too muchof a rush—so many senators today became fixated on the White House, notunderstanding that in the constitutional design it was the Senate that was supreme, theheart and soul of the Republic.
“So few people read the Constitution today,” Senator Byrd said, pulling out his copyfrom his breast pocket. “I’ve always said, this document and the Holy Bible, they’vebeen all the guidance I need.”
Before I left, he insisted that his secretary bring in a set of his Senate histories for me tohave. As he slowly set the beautifully bound books on the table and searched for a pen, Itold him how remarkable it was that he had found the time to write.
“Oh, I have been very fortunate,” he said, nodding to himself. “Much to be thankful for.
There’s not much I wouldn’t do over.” Suddenly he paused and looked squarely into myeyes. “I only have one regret, you know. The foolishness of youth…”
We sat there for a moment, considering the gap of years and experience between us.
“We all have regrets, Senator,” I said finally. “We just ask that in the end, God’s graceshines upon us.”
He studied my face for a moment, then nodded with the slightest of smiles and flippedopen the cover of one of the books. “God’s grace. Yes indeed. Let me sign these for youthen,” he said, and taking one hand to steady the other, he slowly scratched his name onthe gift.