University of California, San Diego. And
many professors report that student inter
est in the Constitution is running higher
than at any time since Watergate—when
the most debated legal issue in America was
what the framers meant by an impeachable
offense. The revival probably has less to do
with the bicentennial, however, than with
the renewed controversy over the power of
the Supreme Court. Attorney General Ed
win Meese Ill’s call for a "jurisprudence of
original intention” has given theoretical
focus to public anger about court rulings in
such emotion-charged areas as abortion.
"The fact that President Reagan has made it
clear he wants to change the interpretation
on some issues makes [the Constitution]
very germane now,” says constitutional
scholar Peter Fish of Duke.
Three main lines of constitutional study
emerge: the lawyerlike, the historical and
the philosophical. They are not incompati
ble, but are rarely found in tandem because
each embodies the methods and values of a
different discipline: respectively, political
science, history and political theory.
Cass method: The political-science tack is
the most common. Its basic materials are
not so much the Constitution itself as Su
preme Court applications of the Constitu
tion. Students read cases, reflecting a law
yerly interest in results over principle. The
method’s unsentimental maxim is that of
former Chief Justice Charles Evans
Hughes: "The Constitution is what the
judges say it is.” Says Duke’s Professor
Fish: "The reason political scientists focus
on the Supreme Court is because t he core of
political science is the search for power.”
At Yale, Prof. Rogers Smith teaches a
popular political-science course on consti
tutional law that tries to uncover judicial
motivation, wnue screening
cases against their historical
and intellectual context, Smith
tries to show that—in constitu
tional cases, at least—judges
must be more than mere prod
ucts of their environments or
their ideological predisposi
tions. "Every judge now feels
and pi wavs has felt that he looks
at precedent and text and feels
obliged to make sense of them,"
he says. Still, Smith’s students
are often disillusioned to learn
the full extent ofjudicial discre
tion. "A lot of us went in [to the
course] thinking of the Consti
tution as an explicit text with
explicit law,” says Yale senior
RosaSabater. "That the Consti
tution could be so variously ap
plied was disturbing. It made
me wonder whether this docu
ment has any meaning at all."
Not one meaning but several,
say historians. It depends on
the era. "A lot more people than the
courts have something to do with the Con
stitution.” says historian Herman Belz of
the University of Maryland, College Park
His own seminar courses focus on "a his
tory of public opinion on how to use the
Constitution." Belz divides his constitu
tional history into two semesters, with
I860 the midpoint. Other teachers find
three distinct eras: in the nation's early
years the great constitutional questions
concerned national supremacy over the
states; the Civil War settled most of those.
Then came the struggle over the federal
government’s right to regulate the econ
omy; the New Deal essentially ended that
In recent times, public opinion and hence
the courts have been concerned with
weighing individual rights against the
rights of govern meat
Pocketbook patriots: The historical ap
proach also treats the Constitution as a
prcxluct of the fears of its own time Per
haps the most striking example is Charles
A. Beard’s muckraking 1913 work, "An
Economic Interpretation of the Constitu
tion.” It argued that the framers were jxx'k
etbook patriots, who conceived of a strong
national government as the best defense of
their own property interests Beard’s book
was very much a teacher’s work—a calcu
lated demythologization It was widely dis
puted and over the years fell into disuse on
campus. However, now it is being revived,
for example, in a new bicentennial course
at the University of Virginia.
The third approach to Const itution anal
ysis is philosophical; it treats the founders
as conscious theorists. The framing of the
Constitution was, after all, almost as much
an intellectual event as a political one. The
founders were learned men, steeped in both
ancient and Enlightenment tht*ories of gov
ernment and society, and the debates at the
Federal Convention of 1787 showed that:
behind the delegates' words lay the wordsof
philosophers like Machiavelli and Montes
quieu. Hobbes and Locke. Montesquieu, for
example, believed that because they re
quired broad political participation, repub
lics were only possible in small countries
with limited populations. Without knowing
how influential this theory was, it is diffi
cult to appreciate just how innovative
.James Madison was being when he argued
that America needed a republican govern
ment precisely because it was so large. The
philosophicapproach iscomparatively rare
hut is essential to any understanding of
what the framers thought they were doing.
Says Prof Sotirios Barber, whoteachescon
stitutional interpretation at Notre Dame
University. We try to study the Constitu
tion as if it were a general response to hu
man problems .”
The Constitution is all of that and one
thing more: as|>ecitie response to t he poten
tial problems of a self-governing people.
The framers were well aware of human
f railty and yet were willing to gamble on it
They knew, too, that Americans were likely
to prove a diverse and difficult people That
is why the Constitution repays careful
st udy .For w h i le close read mg of t he (’oust i -
tut ion invariably produces an awareness of
the American system’s flaws—t he madden
ing inefficiency of the separat ion of powers,
for example—it also leads to an under
standing that the Constitution is what it is
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A new focus on interpretation due to public anger: Anti-abortion rally at the Supreme Court