Justice Brennan’s Challenge to Historians: A Response

In the December 1986 issue of Perspec­tives, Dr. Wilcomb Washburn, Director of the Office of American Studies at the Smithsonian Institution, took issue with Associate Justice of  the Supreme Court William J. Brennan  on the question of the historian’s role in interpreting the Constitution. Dr. Washburn based his remarks upon two addresses that Justice Brennan delivered in recent months: at a Georgetown University symposium (October 12, 1985) and at Harvard Uni­versity (September 5, 1986).

In these lectures, Dr. Washburn charges, Justice Brennan showed no comprehension of the historian’s func­tion; that he belittled the relevance of historical evidence in achieving an un­derstanding of the Constitution and its contemporary meaning. “Will histori­ans,” asks Dr. Washburn. “accept the challenge?”

Dr. Washburn thus introduces the readers of Perspectives to an interesting contemporary debate about what the Constitution means. Today conservative constitutionalists are advocating an in­terpretation of the Constitution based upon the “original intent” of the Found­ing Fathers. Attorney General Edwin Meese is a leading spokesperson for this position. He calls for the overthrow of the “selective incorporation” doctrine by which the Supreme Court has made many fundamental provisions of the Bill of Rights binding upon the states. Thanks to this doctrine the federal government has made great gains, over the years, in the definition  and  protection of civil rights and other basic American liberties.

In this context the Administration slo­gan “get the government off our backs” means cutting down the scope of para­mount federal power in the area of human rights. If Edwin Meese’s views prevail, national rights, nationally enforced, are likely to dwindle. This, as I see it, is something that millions of Americans regardless of race, creed, color, sex, or age ought to take very seriously.

During the past year, Justice Brennan has subjected “original intent” to an examination that has been both public and critical. The central thrust of the Justice’s pos1t10n is not, as Dr. Wash­burn would have it, an attack upon the idea that historians have a role to play in constitutional interpretation. What the Justice does do is to make a plea for a broad, rather than an excessively nar­row approach to this interpretive work. “The genius of the Constitution,” he says, “rests not in any static meaning it might have had in a world that is dead and gone, but in the adaptability of its great principles to cope with current problems and current needs” (George­town University address, cited above, page 7).

Is Justice Brennan rejecting history as an aid to constitutional interpretation? I think not. On the contrary, he is con­tending for the position that it is essen­tial to view the law in a broad historical context. In the two addresses under examination here, he makes it quite clear what he deems that historical con­ text to be.

The original intent of the Constitu­tion’s makers, Justice Brennan points out, was revolutionary in nature, not conservative. “It was not intended,” he writes, “to preserve preexisting society but to make a new one.” This revolutionary intent of our Constitution-mak­ers surfaced once more within three-quarters of a century of the document’s ratification. The wartime amendments to the Constitution swept away the foun­dations of slave society and conferred upon black people the rights of full citizens, including the right to vote. The Justice here reminds us that the original intent of the makers of these wartime amendments did not lie in a desire “to enshrine the status quo. Their goal was to make over the world, to eliminate all vestiges of the slavery caste” (George­town address, page 8).

Today the mandate of the Constitu­tion to America’s leaders remains as it was stated in 1787–1791 and as it was reaffirmed, after trial by combat, 1860–1865: to preserve and to protect the American birthright of freedom, and to pass it on to generations yet unborn. But Justice Brennan reminds us—and I for one feel that the reminder is timely—that an ancient birthright cannot be preserved, over the years, without an inevitable change in tactics. Today the vast majority of us are city dwellers; the pristine agricultural environment has passed away. Government today is called upon to play an unprecedented role in our society; one that our fore­ bears two centuries ago would never have dreamed of. We cannot abolish the “activist state,” says the Justice. Such talk, according to the Justice, is mere rhetoric. The real issue before us is the way that we shall choose to use the immense national resources at our dis­posal: either (I would add) for the last­ing benefit of our people, or for their impoverishment and destruction.

Millions today suffer the pain of job insecurity, joblessness, homelessness, ra­cial discrimination, and racially targeted violence. Liberty and the pursuit of hap­piness can mean little to these people if their rights to a job, to a decent home, to security, to freedom from racial oppres­sion, remain unhonored and ignored. They should be encouraged, during this bicentennial celebration, 1987–1991, to invoke the original intent of our Consti­tution and the promise that it was set up to fulfill the safeguarding of life, liberty, and happiness for  all. This, rather than a return to the shopworn principles of nineteenth-century laissez-faire, is sure­ ly what the bicentennial celebration ought to be about.