The Governance Imperative

A Theory of Constitutional Interpretation: The Governance Imperative
 

by Craig Gibson & Kelly French

Few issues have divided Americans like abortion. The questions of whether society should allow abortions and under which circumstances haunt even people who seem convinced of their position. Norma McCorvey, represented as “Roe” in the infamous case Roe v. Wade, has become an out-spoken advocate of the pro-life position in the years since the Supreme Court’s decision which ruled state laws banning abortions to be unconstitutional. Justice Blackmun, the author of the Roe v. Wade decision, struggled with the Court’s appropriate response to the case and acknowledged the emotional sensitivity in the published opinion. That people of good conscience change their positions regarding abortion or put forward opinions filled with emotional uncertainty and angst should be evidence that there is something deeper at work than simple “Absolute Truth” or “Unerring Right.” Rather than leading us to prophecy the downfall of a society that would “kill innocent children” by allowing abortion or lamenting the oppressive manner of a state which would forever force victimized women to birth unwanted babies, the doubt engendered within us and among us by the questions of abortion should serve as evidence of our humanity and serve notice that hubris is not something that only inflicts those with whom we disagree.

Principles in Conflict

Abortion is a difficult issue for the very reason that there is no easy answer. There are real reasons why a woman would want the option of having an abortion: her health might be at risk if she carries the baby to term or gives birth to the baby; perhaps she is the victim of rape or incest; maybe she does not have the financial, emotional or psychological means of enduring a pregnancy or raising a baby. Who should get to choose if a woman in any of these situations gets to have an abortion? Is it the woman because she has to live with the decision? Will the baby’s father have any say in the decision if he is willing to live with the decision? Should the State have any say in the decision so that the baby will have a chance to live with the decision?

These questions bring into focus the conflicting interests and rights which are involved in the debate our society is having over abortion. On the one hand, society has an interest in protecting the lives of all its citizens, especially the weakest among us, the unborn. On the other hand, pregnant women have health and privacy concerns which must be respected – and protected – by society. Deciding, as a society, where to draw the line becomes the challenge. Where should the Law be in respect to these two competing interests? A manifestation of our hubris is that we expect answers to every question we ask even if that which we ask is unknowable. If we are interested in being right, we want to have answers to our questions written in stone. If we want to be fair, we have to keep asking the questions and be prepared for the answers to change.

And it is typically because we are more interested in being right than we are in being fair that we enter into such an emotionally-charged atmosphere when it comes to the abortion debate. It is the premise of this paper that abortion is so heated and divisive because we have forgotten the First Principles upon which our Constitution was founded: the Constitution and courts decide what is fair, which we shall propose covers issues of governance; the Legislature (acting for the People) decides what is right, which we shall propose covers issues of morality.

When the Framers were writing the Constitution, they were not interested in a document which would dictate the moral fabric of the new American nation. There is a need in man to know truth absolutely, to have a certainty to life and living. Throughout our history, humans have sought to understand and apply the fundamental truths which govern his world (the transcendent), but he is by nature limited in his ability to understand and apply these fundamental truths because of his limited senses and experience (the immanent). Man can only know as far as his physical world can confirm. So as long as we recognize the fact that there is a world wider and deeper than man’s experience, we have to accept the fact that there is some portion of fundamental (or absolute) truth that is unknowable. We can know certain truths that are timeless given who we are in the world, but we can’t absolutely know all that is beyond us.

Yet humanity has struggled in accepting this limitation and constantly tries to establish society in a manner which balances and integrates both the transcendent and immanent realms. But rather than finding balance and integration, man has swung from one extreme to the other. The brilliance of the Constitution is that it shines a guiding beacon to lead mankind past the rocky shoals of its own hubris and towards calmer waters where they might find a system that is self-regulating in governing man’s inclination to these two extremes. We can find the key to this self-regulation in the downfall of the ancient and medieval civilizations. The Greeks and, by extension, the Romans, tried to control the divine by trying to control Reason, while Medieval Europe tried to control the human by trying to speak for God through the Church. First, control by the State, and then control by the Church. But where was the human in all of this? If the Greeks and the Romans tried to rule what was right by what was reasonable and fair (as defined by the State), then the Medievals tried to rule what was reasonable and fair by what was right (as defined by the Church). In both instances, the questions of morality (what is right?) and judgment (what is fair?) were collapsed into one another.

The truth of the matter is that when it comes to matters of moral principles, there are more different interpretations of those principles than there are people alive. Just ask Martin Luther. He didn’t nail his 95 Theses to the door of the Wittenburg Church without feeling that strongly. Conversely Luther was excommunicated because the Catholic Church felt just as strongly in its position. But it was the same principles on which they disagreed. All involved were learned and intelligent: Luther deeply believed the Church needed reform, and the Church’s position was not capricious. Neither side can be demonized, which we have a tendency to do.

So the question becomes, “How do we resolve the dilemma when good people disagree?” Might we embody rules that govern behavior between people who disagree? Without resolving the question of who gets to pick the rules the question becomes upon what should those rules be based. The hitch is that if you ask the Catholic Church the same question, the rules are to be based on canon. If you ask Luther, the rules are to be based on scripture alone. There is disagreement as to where ultimate authority lies – in other words, the governing imperative. By separating the moral from the governing imperative, you can establish a framework that doesn’t raise the problems that Luther ran into with the Church. The moral authority is no longer bound to the governing imperative.

It would seem, then, that a government which could separate these two functions (deciding what is right and deciding what is fair) might have a chance to create a society which could avoid the transcendent and immanent extremes of the past. It is our contention that this is what the Fathers of the new American nation accomplished in establishing an independent judiciary charged with interpreting the Constitution. Viewing the Constitution as a contract among the people of our society, the Framers ensconced into it – not in an individual or even a group of individuals – the responsibility of setting where each question will be decided. In other words, decisions of fairness were written into the Constitution itself. While you can legislate anything you want based on the moral values of the People, the Framers established a system of checks and balances in a document to be sure one group could not run roughshod over another.

The Will of the Governed (or The Government We Deserve)

The outrage expressed by the different parties over “activist judges” usually involves a case where a judge declared something unconstitutional. While that’s not new, there is a set of decisions that have something in common to cause the outrage. What seems to cause the most outcry are issues decided by the courts that seek to resolve debates over public morality. The Constitution simply is not concerned with weighing in on moral questions, and any judicial excursion into questions of rightness is inappropriate. Same-sex marriage, access to pornography, and abortion are morality debates which the courts have recently inserted themselves. Civil rights is one that is a close equivalent, except there is a constitutional basis in the 14th and 15th Amendments (passed after the Civil War to outlaw slavery and guarantee equal protection to black Americans) upon which the courts could base their rulings.

If we set aside the 14th and 15th Amendments for the purpose of this mental exercise, the doctrine of “separate but equal” is a good example of how a redefinition of right vs. fair can play out in American society. The Framers wrote the Constitution to set up a structure in which the American people could decide issues of morality while respecting the rights of the individual. We know from other societies what happens without a sound constitutional framework: dictatorship or war.

In this, we find a theory of governance.

We can follow the history of the “separate but equal” doctrine to see how understandings and perceptions of society can change regarding an issue, and how society’s changing attitudes can impact a Supreme Court operating within the bounds of constitutional jurisprudence. The 14th and 15th Amendments were passed in the immediate aftermath of the Civil War, in the midst of Reconstruction. Many southern states approved the two amendments as conditions for readmission into the Union, so there were large swaths of society that were not ready to treat their fellow black Americans as equals. Consequently, many state legislatures in the South passed the infamous Jim Crow laws. Congress felt the Jim Crow laws were not right (Stage 2 laws) and passed the Civil Rights Act of 1875, but the Supreme Court invalidated much of this Act, claiming that the 14th Amendment didn’t protect against discrimination perpetrated by private entities. After Reconstruction and the return of southern representatives and senators to Congress, congressional interest turned to other matters. When the constitutionality of the southern states’ Jim Crow laws was challenged before the Supreme Court in the mid 1890’s, the Court issued its famous Plessy decision, upholding the state laws as constitutional.

We believe the Court acted erroneously in Plessy because the Constitution had been amended, in the form of the 14th and 15th Amendments, to define as unfair any form of racial discrimination. The legislatures of the country should not have been able to define segregation as morally sound because the Constitution had removed it from the competence of the moral arena and turned racial equality into a question of fair application of power. Nevertheless, the Court did rule the way it did, so it becomes an interesting study in the progression of an issue from Stage 1 to Stage 4.

When laws are passed at the state or federal level, courts do not give their assent or approval. So unless a specific case is brought before a court challenging the constitutionality of a law, the law is considered to be valid legislation. The legislative branch has deemed an issue, segregation in this case, to be right, or moral. However, when people who feel wronged by the law, they have the right to bring suit before the state or federal courts to challenge the fairness (i.e., constitutionality) of the law and seek relief from the law. This was the case with the Jim Crow laws of the South, and the issue worked its way through the court system, culminating in the Supreme Courts Plessy decision of 1896. The Court validated the South’s Jim Crow laws as a fair application of state power, leaving the matter as a Stage 1 issue. There was an alignment of opinion regarding segregation among the state legislatures, the Supreme Court, and the people (as represented then by the super-majority white population). And the fact that the Court was a party to this alignment is the problem; the Court ruled in Plessy to settle a question of morality, rather than to deal with what the Constitution actually said.

For a Stage 4 issue, the people demand action. Generally, Congress and the courts are release valves for issues that are in Stage 4, and if one of them acts, the demands of the people will be satisfied and stability is restored. However, if both branches ignore the issue long enough, it will only be a matter of time before something will trigger a reaction among the populace to affect change. For slavery, it was the Civil War; for segregation, it was the Civil Rights Movement.

The Founders understood the governance imperative enough to know that these situations can and would occur and that mechanisms are needed to resolve the tension between the people and the state — the ying and yang of the governance imperative. While the system of checks and balances is normally associated with the balance of power between branches, the genius of the Founders was that they also instituted mechanisms to help keep the balance between the people and the state. The forces that build up between the people and the state are considered in the structure that the Constitution lays out. Checks and balances treat the system but not the disease, which is the tension between the government and the people. This tension will always be there, but the goal is to balance it out. It’s in the nature of man and the nature of governing. To understand the governance imperative is to understand the relationship between the governed and those who govern.

Tipping the Scales

The modern-day imbalance began with the 1965 Supreme Court ruling in Griswold v Connecticut that set forth the sanctity of marriage and ruled state bans on birth control as unconstitutional because of a right to privacy within a marriage. The courts have increasingly inserted themselves into the role of deciding questions of morality, of seeking to answer for society the constant question: What is right? With its 1972 ruling in Roe v Wade that struck down state bans on abortion, the Court structurally changed where the debate over abortion could happen, tossing it out of the legislative frying pan into the Constitutional fire. Up to that point, state legislatures were engaged in the debate over the morality of allowing abortions and under which circumstances they were appropriate. In Roe v Wade the Supreme Court upset the balance between the moral imperative, the realm of the People, and the governing imperative, the realm of the structure of government itself. The Supreme Court acted before the abortion issue was ripe, a majority of the justices feeling that the issue was in Stage 4 long enough among enough people that the time had come to act to release the public pressure.The Court issued a sweeping ruling to resolve the moral question of abortion for the entire nation, making law and creating constitutional rights out of whole cloth.

Once you separate the legislative, executive, and judicial branches of government, you make some people unhappy because they do not get to dictate and/or enforce what is right for the rest of society. Through the ratification and continued support for our Constitution, Americans have decided that we would rather have a State that values fairness over rightness. We are primarily concerned with robust processes and institutions to guide us in our debates and disagreements, even if our processes and institutions are slow or inefficient. That is, we engage in politics to resolve our differences.

Although we have grown to distrust politics in our day and time, the debates and compromises to which our politics lead us are exactly what it means to value fairness over rightness. We are betting that if everyone is treated equally and has a voice, then the right will be the natural, unavoidable result, even if it takes longer than some would like to realize it. This is about valuing the stuff of humanity – doubting and questioning and listening – over simple theories of “absolute knowledge” which have failed humanity time and again. In attempting to describe a system of government we must always remember that humans are fallible, but our nature provides a richness without which our existence would be empty and mechanical. To be human is to laugh with them and cry with them; to take the depths of irrationality along with the triumphs of thought and will. No certainties can relieve us of our responsibility to engage in this fully human quest. Even if we don’t find the complete answer to absolute truth and apply it to our society in a perfect manner, there is value in encouraging the magic of politics, which works to bring all interested parties together to talk and compromise and, through our legislatures, forge a solution with which the whole of society can live.