Remarks of Senator Sheldon Whitehouse, 2009 Living Constitution Lecture
Thank you very much to the Brennan Center for Justice for inviting me to give the 2009 Living Constitution lecture. The Center’s great work, on issues from national security, to voting rights, to criminal and civil law reform, lives up to the legacy of Justice Brennan’s vision of our core constitutional freedoms. Our nation is far better for your work. Thank you.
Our Constitution is the statement of the first principles of our republic. As we reflect on it tonight, let me share three of my firm beliefs:
First, beyond our borders, our Constitution is a beacon of light in a shadowed world; a promise of justice and freedom that bears the best hopes and aspirations of mankind—it has a special role in our world.
Second, at home, our Constitution is the organizing principle of the world’s strongest democracy; both a complex set of interlocking procedural balances that protect our liberty, and a moral force more powerful than any internal faction or division.
Thus my third belief, that any path away from the promise of our Constitution – and particularly the previous administration’s descent to the “Dark Side” – is a path to ruin.
It takes work to live up to our Constitution, and will to resist the easy convenience of abandoned principles. Justice Brennan said, “the Constitution will endure as a vital charter of human liberty as long as there are those with the courage to defend it, the vision to interpret it, and the fidelity to live by it.” But this courage, this vision, and this fidelity, are challenged by the rightward lurch of the Supreme Court, and the wretched legacy of the Bush Administration.
In the last few years, our Supreme Court has turned away from long-standing precedents, consistently remaking laws and the Constitution in line with today’s politically conservative orthodoxy. The Court has abandoned true judicial conservatism and systematically dishonored congressional intent. Consider the Ledbetter decision, for instance, which time-barred a victim of admitted discrimination for no fault of her own; or the Louisville and Seattle integration cases, which abandoned the legacy of Brown v. Board of Education; or the first abortion restriction since Roe v. Wade was decided that ignores consideration of the woman’s health and safety; or, perhaps the favorite of movement conservatives, the Heller decision, which discovered (5–4) a constitutional right to own guns that the Court had previously failed to notice for 220 years. Consider the direction and motivation of a Chief Justice who, to quote Jeffrey Toobin, “(i)n every major case . . . has sided with the prosecution over the defendant, the state over the condemned, the executive branch over the legislative, and the corporate defendant over the individual plaintiff.”
This deliberate rightward shift makes it harder work to live up to our Constitution. A proper understanding of our Constitution must prevail in our national debate, and this understanding must penetrate beneath the grand architecture of separated powers into the myriad details that give life to our Constitution’s central promises of liberty and justice. To honor is different than to obey. Even when precise obedience is not commanded, we can live up to our Constitution by honoring its principles. Tonight I will give four examples:
- demanding that the executive branch remains committed to the rule of law,
- protecting our democratic process,
- strengthening our civil justice system, and
- enhancing the economic opportunities of every American.
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The Bush Administration left a parade of horribles: grandiose views of executive power and executive privilege; politicized hiring and firing at the Department of Justice, with the work of that illustrious agency manipulated for political ends; political meddling at the Environmental Protection Agency that turned enforcement of our nation’s environmental laws over to the polluters; torture memos and other shameful national security opinions from the Department of Justice’s Office of Legal Counsel that are now the subject of disciplinary investigation.
The Bush Administration’s torture memos make clear how important it is for the executive branch to commit itself to the rule of law. I will not discuss their failings in detail, but will simply offer what I think is the clear lesson from that episode: For a country that holds up a lantern to the world, turning down to the “Dark Side” is a grave mistake. To borrow an image from Winston Churchill: the stairway to the “Dark Side” may seem “a fine broad stairway at the beginning, but after a bit the carpet ends. A little farther on there are only flagstones, and a little farther on still these break beneath your feet.”
To put this in practical terms, if our nation is to live up to our Constitution, we must insist that executive branch attorneys have the independence and integrity necessary to protect the rule of law. This is not merely a question of hiring good people. Process matters. We must recognize the importance, well down in the executive agencies’ corridors, of the traditions, procedures, and practices that have evolved over decades to buttress agencies against interference and impropriety. As Jack Goldsmith told the Judiciary Committee two years ago, the Office of Legal Counsel, or OLC, had “developed a number of practices to help it avoid errors, and to compensate for the fact that its opinions are not subject to the same critical scrutiny of adversary process and dissent that characterize the judiciary. These practices include:
(1) insisting that agencies seeking OLC’s advice request OLC opinions in writing, setting forth their view of the law and facts;
(2) seeking the written legal and factual views of all agencies with expertise or that may be affected by the opinion;
(3) subjecting draft opinions to multiple levels of scrutiny and review inside OLC;
(4) writing narrowly tailored opinions; and
(5) publishing non-classified opinions when possible.”
The flawed torture opinions germinated in the feverish ideology of John Yoo and David Addington, but they grew to life through the failure of these procedures—living up to our Constitution means respecting such procedures.
The Bush Administration also made it painfully clear that substance matters, as well as process. Outlandish “unitary executive” theories spawned a litter of mischief: the endless signing statements claiming a unilateral right to amend laws; seemingly unlimited Article II authority claimed for the President in anything touching upon national security; the claim that Congress could not limit the President’s control over lower-ranking officials; exaggerated claims of executive privilege—for example during our investigation into the politicized firing of U.S. Attorneys, an assertion of executive privilege against Congress whose purpose to avoid executive embarrassment or responsibility for wrong-doing appears confirmed by the White House later stonewalling executive branch investigators. (As a former DOJ prosecutor, I can’t tell you how disappointing it is that Attorney General Mukasey allowed himself to be rolled by the White House.)
Each episode reveals hostility to Congress and to the laws it has passed. Each jumped the well-established rails of governmental practice, whether those rails were laid on solid judicial precedent or in traditions yielding a settled modus vivendi. We now need to put the trains back on the rails. Congress and President Obama have taken many steps to do so. The President and Attorney General Holder have made us once again a nation whose concern is eradicating torture, not evading liability for torture. President Obama nominated and the Senate confirmed Justice Sotomayor to the Supreme Court, breaking the grip of right-wing orthodoxy on Supreme Court nominees. The Matthew Shepard Hate Crimes Bill has been signed into law, adding to the law protections for those who are harmed because of their gender preference or sexual orientation. President Obama has renounced exotic theories of executive privilege from the Bush Administration and worked cooperatively with Congress to protect civil liberties while ensuring our national security. And perhaps most important, they are allowing appropriate investigations to go where the law and the evidence lead. There are some ugly truths to be revealed, I fear, but only banana republics curb the exercise of investigative authority for fear of where the investigation might lead. We live up to our Constitution by letting its institutions operate the way they should under law.
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Let me turn to the second place where we must live up to our Constitution: the ballot box. The ballot box is the pedestal on which freedom stands in our democracy. Fortunately, we now have left to history’s dustbin the poll tax and the restricted franchise. But Americans’ access to the ballot box is nonetheless still under pressure.
We must be vigilant to ensure that every American with the right to vote be given every opportunity to exercise that right. Electioneering games that trick voters into not participating; voter caging; burdensome documentation requirements that disproportionately affect the poor and the elderly; strategically planned election venues that cause discouragingly long lines for certain voters; politically motivated investigations of voter fraud that in practice cause voter disenfranchisement—these are the modern tools to deny access to the ballot.
But even unfettered ballot access is not enough if the free speech of “We, the People” is drowned out by corporations flooding the airwaves with propaganda pushing their own economic interests. Congress and the Supreme Court have recognized for at least a century that corporate involvement in elections, with its corrupting self-interest, must be controlled.
However, the conservative bloc of the Supreme Court seems, in a pending case, Citizens United v. FEC, poised to undo that plain and well-settled principle. The Court would have to upend opinions like Austin v. Michigan State Chamber of Commerce (1990), when Justice Thurgood Marshall warned of “the corrosive and distorting effects of immense aggregations of wealth that are accumulated with the help of the corporate form and that have little or no correlation to the public’s support for the corporation’s political ideas.” The Court would have to overlook the legal fact that corporations are legal fictions; government-established tools for organizing human behavior. Neither logic nor history justifies unleashing corporations from the bonds of government, freeing them to master and control the very government that created them, so that government in this country is of the CEOs, by the CEOs, and for the CEOs. That would hardly live up to our Constitution, but from the activist right wing of our present Supreme Court, it is not too much to expect. Recall again that Chief Justice Roberts has, in every major decision, ruled for “the corporate defendant over the individual plaintiff.” If the Court’s right wing actually goes this way, living up to our Constitution may require amending it to limit political activity to human persons. Gird your loins.
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Moneyed interests have had their say, too, in the next place where we need to live up to our Constitution: where the courthouse doors open to our civil justice system. For years, business interests, operating through the Chamber of Commerce and other “law reform” outfits, have mounted a public relations campaign against the civil justice system. Their tale is that discovery costs, juries, and punitive damage awards are all out of control, allowing unscrupulous plaintiffs’ lawyers to hold corporations hostage and extort massive settlements in a litigation lottery that frustrates public policy. Their goal is to make corporate defendants seem the victims, justifying mandatory binding arbitration (often with systematically biased arbitrators), caps on damages, restrictive readings of statutes of limitations, and heightened pleading standards. Like a looming Macy’s Thanksgiving Day Parade balloon, this campaign is big, visible, and inflated, but not well footed in concrete reality. Americans don’t go to court for fun; they go because they have been injured, and were ignored, and could find no other relief. They are not a bunch of phony extortion artists. They are our fellow citizens.
The Constitution mandates respect for the process that allows them to stand up for their legal rights. Trial by jury is established in Article III, Section 2 of the Constitution, and by the Sixth and Seventh Amendments. The Constitution promises a “day in court,” however annoying that day might be to the corporate defendant. Corporations would be only too happy with a world in which their every contact with government officials – Presidents, governors, federal and state senators and representatives – every contact is with individuals and institutions who have been rendered supple to their interests by the emollient effect of corporate contributions. Against this appealingly accommodating world stand the hard square corners of the jury box, filled with ordinary Americans, whose views you tamper with only at your legal peril, and before whom the mightiest corporation stands equal with its most humble and voiceless victim; where each party has equal opportunity to put its case to a group of our peers; where the status quo can be disrupted; where the comfortable can be afflicted and the afflicted find some comfort, all under the shelter of the law.
Fortunately many of my colleagues in the Senate join me in understanding the importance of the jury box and courtroom as essential elements of our constitutional architecture, the last hope when other branches and institutions have yielded to the influence and faction that so concerned our Founders. Under the leadership of Chairman Leahy we are working to keep those court house doors open. Members of the Senate Judiciary Committee are working on bills that would ensure that our federal courts have the resources necessary to hear cases promptly, that would limit the use of mandatory binding arbitration provisions in employment and consumer contracts, that would restore the notice pleading standards that had governed the initiation of federal lawsuits for decades, and that would repeal insurance companies’ exemption from our antitrust laws. Each piece of legislation would improve the quality of justice in our country and should be passed.
We also must confirm judges to the federal bench who will respect their role in the structure that protects our constitutional rights. Our nation’s most important protections provide recourse for the marginalized and the powerless, so it is a good thing if our judges bring to the bench a little skepticism of the status quo, an ear for challenges to the prevailing power structure, and an extra effort to hear the side of a party who is out-spent and out-gunned by a wealthy and powerful opponent. We must reject the Federalist Society norm for judicial nominees. And we should not permit Republicans to continue their endless delays of highly-qualified judicial nominees as they seek out what one Republican colleague called an “ACLU chromosome” in President Obama’s nominees. Evidently, a desire to defend constitutional rights and give voice to the voiceless disqualifies someone from judicial service. You all are out of luck.
But all joking aside, it is important to protect our civil justice system from persistent corporate efforts to deride and erode it, and assure a venue for the righting of wrongs and the voice of the unpopular, if we are to live up to our Constitution.
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My final place to live up to our Constitution is in the economic well-being of all Americans. The Constitution stands in service of the simple goal of allowing Americans to live more freely both from government intrusion and from want. As its Preamble describes, the Constitution was drafted with a purpose: “to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity.” Justice Brennan once explained: “(f)rom its founding the nation’s basic commitment has been to foster the dignity and well-being of all persons within its borders.” So while we may not be able to go into court and enforce a right to economic justice, we live up to the purpose and goals of our Constitution when we insist that our government protect the weak and guarantee economic opportunity for all.
What does this mean in practice? We secure the “Blessings of Liberty to . . . our Posterity” when every child finds a foundation for success in our education system. We aid “domestic Tranquility” by lifting off our families the burden of worry that the next illness will push them into penury. We “promote the general Welfare” by protecting Americans from usurious 30% interest rates. We “establish Justice” when our bankruptcy system can fairly and effectively relieve Americans from crushing burdens of debt, particularly those caused by the costs of sudden illness or military service. Our “common defence” is aided when no veteran again slips into homelessness through the cracks in society’s safety net. And our “Union,” I submit, is “more perfect” when the hedge fund manager sipping champagne in his Gulfstream is not paying a lower tax rate than the man outside in the rain loading his leather luggage into the hold. I could go on. The list of examples is long. But my point is that progress toward economic opportunity for all makes good on our social contract and is another important way to live up to the ideals embedded in our Constitution.
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I will close by returning to my opening principle: that our Constitution is a beacon of light in a shadowed world. It is the source of our greatest strength, and we turn away from it at our peril. Some now suggest that we shouldn’t hold ourselves to higher standards than our enemies; that we shouldn’t admit wrong-doing, but should divert the course of justice around our wrongdoing instead; and that corporate welfare requires sacrifice of the rights and well being of working Americans. If we listen to those siren songs, and prefer our own present comfort to our principles, the beacon of our Constitution will dim. But if we work hard to live up to our Constitution, to make good on its great promises of liberty and justice, and to protect opportunities for every American, our Union will stand ever greater. If we indeed do live up to it, no power of wealth, no force of arms, can ever match the power of the light our Constitution shines in this world, as a beacon of liberty, justice, and opportunity.