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By Root 1429 0

also the separation of the national government into three coequal branches, a bicameral Congress, and a concept of federalism that preserved authority in state governments, all of it designed to diffuse power, check factions, balance interests, and prevent tyranny by either 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 large and diverse society, where, in Hamilton’s words, the “jarring of parties” and differences of opinion could “promote deliberation and circumspection.” As with our understanding of the Declaration, we debate the details of constitutional construction; we may object to Congress’s abuse of expanded commerce clause powers to the detriment of the states, or to the erosion of Congress’s power to declare war. But we are confident in the fundamental soundness of the Founders’ blueprints and the democratic house that resulted. 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’re honest 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 and difficult issues that help shape our lives. Should we let teachers lead our children in prayer and leave open the possibility that the minority faiths of some children are diminished? Or do we forbid such prayer and force parents of faith to hand over their children to a secular world eight hours a day? Is a university being fair by taking the history of racial discrimination and exclusion into account when filling a limited number of slots in its medical school? Or does fairness demand that universities treat every applicant in a color-blind fashion? More often than not, if a particular procedural rule—the right to filibuster, say, or the Supreme Court’s approach to constitutional interpretation—helps us win the argument and yields the outcome we want, then for that moment at least we think it’s a pretty good rule. If it doesn’t help us win, then we tend not to like it so much.

In that sense, my colleague in the Illinois legislature was right when he said that today’s constitutional arguments can’t be separated from politics. But there’s more than just outcomes at stake in our current debates about the Constitution and the proper role of the courts. We’re also arguing about how to argue—the means, in a big, crowded, noisy democracy, of settling our disputes peacefully. We want to get our way, but most of us also recognize the need for consistency, predictability, and coherence. We want the rules governing our democracy to be fair.

And so, when we get in a tussle about abortion or flag burning, we appeal to a higher authority—the Founding Fathers and the Constitution’s ratifiers—to give us more direction. Some, like Justice Scalia, conclude that the original understanding must be followed and that if we strictly obey this rule, then democracy is respected.

Others, like Justice Breyer, don’t dispute that the original meaning of constitutional provisions matters. But they insist that sometimes the original understanding can take you only so far—that on the truly hard cases, the truly big arguments, we have to take context, history, and the practical outcomes of a decision into account. According to this view, the Founding Fathers and original ratifiers have told us how to think but are no longer around to tell us what to think. We are on our own, and have only our own reason and our judgment to rely on.

Who’s right? I’m not unsympathetic to Justice Scalia’s position; after all, in many cases the language of the Constitution is perfectly clear and can be strictly applied. We don’t have to interpret how often elections are held, for example, or how old a president must be, and whenever possible judges should hew as closely as possible to the clear meaning of the text.

Moreover,