Publications: What the Constitution Means to Me: Remarks on the Occasion of Constitution Day by Al Harris

I suppose that as a lawyer I pay more attention to the United States Constitution than most lay people. I was once fortunate enough to be asked to write a brief for the Supreme Court in a Commerce Clause case and then to sit at counsel’s table when the case was argued. Great stuff. But to tell you the truth, the Constitution plays a very small part in my professional life. What it means to me flows primarily from what I take it to say about political possibilities, about the capacities and limitations of human beings living in the modern world. Let me explain what I mean by that by briefly discussing four things that the Constitution means to me.

Perversely perhaps, I view the most noteworthy provision in the Constitution itself to be the three fifths clause in Section 2 of Article 1. That clause, as I am sure all of you well know, provided, until it was stricken by the 14th Amendment, that the representation of states in the House of Representatives would be by population: counting free persons as one, Indians who did not pay taxes as none, and all others, that is, slaves, as three fifths. What this meant was that at the very heart of our Constitution was the acceptance, no, the endorsement of a profound and fundamental evil: slavery. Yet, without the endorsement of that evil, there would not have been a United States. As Rufus King, a Massachusetts delegate to the Constitutional Convention put it, this clause was a “necessary sacrifice to the establishment of the Constitution.” So the first thing that the Constitution means to me is as a reminder that sometimes in our collective human endeavors a deep and erosive evil must be accepted as the price of achieving a much desired good. How the balance is to be struck between evil and good, how great an evil can be accepted in light of the good to be achieved is, of course, the vexing, tragic question. But what the three fifths clause reminds us is that sometimes a truly great evil must be used as the glue to hold together a great and noble enterprise. But this, of course, is always a bargain with the devil and a time will come when the devil demands to be paid. For the United States, that time came 77 years later, and the payment included the lives of over 600,000 men.

If for me the three fifths clause in our Constitution is a reminder of the profoundly disturbing moral grounding of our country, the 18th Amendment is a reminder of our citizens capacity to do silly, perverse and ultimately self-destructive things in the name of virtue. As those of you know who have started to watch HBO’s new show, Boardwalk Empire, in 1919, the United States adopted the 18th Amendment prohibiting the manufacture, sale and transportation of intoxicating liquors. In the middle of this 14 year long foolish and naive social experiment, H. L. Mencken wrote:

“None of the great boons and usufructs that were to follow the passage of the Eighteenth Amendment has come to pass. There is not less drunkenness in the Republic, but more. There is not less crime, but more. There is not less insanity, but more. The cost of government is not smaller, but vastly greater. Respect for law has not increased, but decreased.”

And so the second thing that the Constitution means to me is as a reminder that great and wondrous human projects are susceptible to corruption through well intended but ultimately self-destructive actions. For I view the 18th Amendment not just as a mistake, but as a frightening example of the capacity of our legislators and citizens to cause great harm and unleash great mischief in the name of the preservation and enforcement of virtue.

The third thing that the Constitution means to me is much less dark than the first two. I believe that the soul of the Constitution lies in its proclamation of a set of fundamental moral values. I am not now challenging or defending legal positivism, I am merely asserting that key provisions of the Constitution, such as the First, Fourth and Fourteenth Amendments, express an aspiration for the ordering of our commonwealth on a firm ethical foundation. These provisions are not just legal concepts. Think about them: “free exercise of religion,” “freedom of speech and of the press,” the “right of the people to peaceably assemble,” the “right of the people to be secure in their persons against unreasonable searches and seizures,” the obligation for there to be “probable cause for places to be searched and persons or things to be seized,” the prohibition against “the abridgment of the privileges and immunities of citizens,” the “protection of life, liberty and property through due process of law” and finally that all people are entitled to the “equal protection of the laws.” These are ethical commandments. They are embodied in our Constitution as values with which our laws must conform and our courts and our government must strive to realize. That this is so, says a very important thing about our country. It says, at least to me, that whatever mistakes we make, whatever evils we permit or perform, whatever follies we perpetrate, we are committed to do better, to continue to strive to make our country better, a place that does, indeed, manifest these values. So the third thing that the Constitution means to me is as an assurance that I am bound together with other citizens in a grand and noble enterprise, the quest for an ethical republic.

And now for the last of my Constitutional meanings. Stuart Warner has been kind enough to let me sit in this semester on his Montaigne class. So Montaigne is much on my mind. In his essay “Of a Saying of Caesar’s,” Montaigne discusses our inability to know or choose what we truly need because we do not know what we truly should be. In the course of this essay, Montaigne writes the following:

“A good proof of this [inability] is the great dispute that has always gone on between the philosophers over the sovereign good of man, and that still goes on and will go on eternally, without solution and without agreement.”

If we were to substitute “lawyers” for “philosophers” and “Constitutional values,” for “sovereign good of man” we would have a profound reflection on the impossibility of our ever collectively agreeing on the “true meaning” of the Constitution.

While I just referred to a number of the phrases in the First, Fourth and Fourteenth Amendments as grand moral objectives, I did not mean to suggest that the content or contours of these objectives mean or even will mean the same thing to all people of good will. Our Supreme Court will never unanimously agree as to the meaning in all contexts of due process, establishment of religion, or equal protection of the laws. Does this mean that the Constitution is imperfect? It most certainly is imperfect, but not for this reason. Then does it mean that human beings are imperfect? Surely I don’t need to answer that question.

So the fourth thing that the Constitution means to me is as a reminder that as we strive for a more perfect union, as we seek ways to make our country more just and good, we must be modest in our expectations and acknowledge that we will never agree among ourselves as to the substantive content of or the concrete conduct called for by justice and goodness. In other words, I believe that the Constitution is a reminder to all of us that our disagreements about what Montaigne calls the “sovereign good of man” will, as he says, go on eternally without solution or agreement.

Thank you very much.