Article by John Stick
Among the many impassioned responses to Attorney General Meese's speech before the Tulane University Citizens' Forum, one of the most interesting was written by Sanford Levinson. The article first captures one's attention because a very liberal writer, in a very liberal magazine, suggests that Meese in large measure may be correct. But the lasting interest of Levinson's analysis is the striking way it manifests our ambivalence toward the roles of the Supreme Court and government officials in interpreting the Constitution.
Levinson explains his position by means of an analogy to Christianity. The Reformation, which established the schism between Catholicism and Protestantism, raised two fundamental questions: “Where is God's message to be found? Who offers the last word, or at least the currently authoritative understanding, concerning what that message is?” For Protestants, God's message is found in scripture; for Catholics, it resides in both scripture and the traditions of the church. For Catholics, the authoritative interpreter of God's message is the church, with the Pope as the ultimate arbiter and symbol of infallibility. Protestants do not believe in a single institutional authority and emphasize the participation of all believers in scriptural interpretation.
Our constitutional tradition raises similar issues. One can define the Constitution as only the words ratified in 1788 along with all amendments, or one can include our broader political traditions: Supreme Court decisions, the Declaration of Independence, and the Gettysburg Address, as well as longstanding institutional accommodations between the executive branch and Congress. Beyond the issue of what constitutes the Constitution, there is also the issue of whether there is an ultimate interpreter. Is the Supreme Court the ultimate interpretive authority on constitutional issues like the Pope is the ultimate authority on Catholic Church doctrine?
Attorney General Meese is, in Levinson's terms, a double “protestant.”' In his speech, Meese defines the Constitution in those words that begin “We the People”' and end with the latest amendment. He also rejects any notion of “‘catholic”’ interpretive authority: the Supreme Court's opinions may be constitutional law, but constitutional law is not the same thing as the Constitution. Quoting the historian Charles Warren, “it is still the Constitution which is the law and not the decision of the Court.”'
The Attorney General and Levinson focus their discussion on the second issue. Levinson finds much that is positive in Meese's protestant vision of the limited role of the Supreme Court in constitutional interpretation. By “‘rejecting the papal role of the Court,”’ we can emphasize “the Constitution as a public source of social understanding, and the concomitant ability of all citizens to share in the debates about the meaning of our tenuously shared life.”' Levinson would like to see officials, attorneys, and citizens internalize the norms of the Constitution and take responsibility for the moral character of their own political actions. He believes yielding ultimate authority to the Supreme Court induces people to act less responsibly: all is permitted except what the Supreme Court has forbidden, and if we misstep, the Court will set us right. For example, legislators grandstand by passing bills they know will never take effect because the courts will strike them down. Finally, Levinson thinks the denunciation of Meese's speech by the left and the left's embrace of the Supreme Court “further legitimizes government by legally trained elites, speaking an ever-more esoteric language.”' Protestantism in constitutional interpretation is antielitist.
Of course, much of the hullaballoo aroused by the Attorney General's speech was motivated not by theoretical disagreement, but by practical fears of what actions the Attorney General will take guided by his theory of the Constitution. Substantive disagreement with Meese over school prayer, methods for implementing desegregation, affirmative action, and even separation of powers fueled the criticism by his detractors. Meese's remarks on Cooper v. Aaron, the Little Rock school desegregation case in which the Supreme Court announced that its interpretations of constitutional law were authoritative, seem sinister because they carry undertones of rejecting not only the Supreme Court's understanding of its interpretive role, but also the Supreme Court's moderate commitment to protecting civil rights.
I think Levinson's use of the protestant-catholic metaphor helps delineate the real theoretical disagreement between Meese and his critics. But I believe there are also middle positions that can only be seen clearly if the issue is refined still further.
About the Author
John Stick. Associate Professor of Law, Tulane University. B.A., B.S. 1975 Michigan State University; M.A. 1977, J.D. 1980 University of California at Los Angeles.
Citation
61 Tul. L. Rev. 1079 (1987)