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Centennial ReviewEditor, John Andrews

Principled Ideas from the Centennial Institute

Volume 3, Number 10 • October 2011

Publisher, William L. Armstrong

Bradley A. Smith (J.D., Harvard Law School) was formerly chairman of theFederal Election Commission. He is now president of the Center for CompetitivePolitics, a professor at Capital University School of Law, and the author of Unfree

Speech: The Folly of Campaign Finance Reform . This essay is adapted from hislecture at Colorado Christian University on March 18, 2011.

Centennial Institute sponsors research, events, and publications to enhancepublic understanding of the most important issues facing our state and nation.By proclaiming Truth, we aim to foster faith, family, and freedom, teach citizen-ship, and renew the spirit of 1776.

the pursuit of happiness…all men are created equal…

endowed with certain inalienable rights…”—but it did no

create a government to pursue them. The Constitution

was adopted to make those dreams a reality. Thus, how we

interpret the Constitution is vital to our civic life and the

shape of our nation.

Bickel was Wrong

It is popular in many circles to suggest that the Constitution

is a “living document” that changes with the times to reec

our contemporary understanding social goals. This view i

illustrated by the noted constitutional theorist AlexanderBickel of Yale Law School, who wrote in 1962 tha

“judicial review is the principled process of enunciating

and applying certain enduring values of our society.”

But in fact, unlike the Declaration or the Gettysburg

Address, the Constitution is not a statement that enunciates

values, such as “all created equal,” or “government of the

people, by the people, and for the people.” Nor does it ask

judges to enunciate values. Rather, it is an effort to bring

certain implicit values to life through a particular

system of government.

This governmental structure does indeed reect

some specic values, although the particular

values are often debated. But it is not an open

ended invitation to future policy makers to take

whatever action seems to them appropriate to advanc

what is, in their opinion, an “enduring value of our society.”

In fact, it is because values can change dramatically over

time (for example, opposition to slavery, nigh universa

today, was hardly so in 1790), and because there wil

always be disagreement on many values and policies, tha

it is particularly important to recognize the structural andprocedural limitations of the Constitution and the proces

it has created for governing our society.

THE CONSTITUTION

MEANS WHAT IT SAYS

By Bradley A. Smith

Each Fourth of July we celebrate

our nation’s Declaration of

Independence with reworks,

parades, and celebrations. It is

appropriate that we do so, for

perhaps no secular document has

inspired so many people aroundthe world, and no nation has done

as much for the cause of human

freedom as that which was born in July of 1776.

But the Declaration, while proclaiming a new nation and its

aspirations, did not actually create a system for governing

that nation. And we know that the rst system that was

created for that nation, the Articles of Confederation,

was considered a failure. It was the Constitution of 1787

that established what has been a permanent

governing framework for the United States.

Beacon of Freedom

It is this document that has provided the basic

governing structure of our nation as we have

risen from an underdeveloped backwater

of civilization to become the driving force of the world

economy and a beacon of freedom the world over. With

only minor changes to its basic structure, many of those

(the Bill of Rights) enacted shortly after the basic document

was passed, it has seen us through prosperity and recession,

through two world wars, through the burning of our capital

in the War of 1812, and through a momentous civil war.I intentionally draw a contrast between the Constitution

and the Declaration or other great American aspirational

documents (such as the Gettysburg Address), because

when interpreting the Constitution we should recognize

that it was intended to serve a very different purpose than

the Declaration of Independence. The Declaration was

a political document intended to attract foreign support

for the American rebellion, and to stiffen the spines and

build the enthusiasm of the local population. It set forth

the goals and dreams of America—“life, liberty, and

It is not

an ink blot

for values.



Centennial Review, October 2011 ▪ 2

And it is a governing document. For example, Article I

includes such mundane matters as when Congress shall

convene, when “yeas” and “nays” shall be published,

that Congress shall publish a record of its proceedings,

and how members shall be compensated. Articles II

and III establish the executive and judicial

branches. Later articles take care of such

boring administrative matters as oaths of

ofce, provisions for adding new states, and

provisions for amending the document itself.

When in Doubt, Apply the Text

The Federalist Papers, those wonderful expositions by

Hamilton, Madison, and Jay, do not argue that these are

values of the nation—rather, they argue for the Constitution

by pointing out how the language of the document, and

the government it forms, will work to promote a wide

variety of values and goals held by different citizens.

The Constitution, in other words, is a procedural document.

In its few pages, it establishes a government with three

independent branches, explains how each branch is to beselected, and species the power held by each. It does not

proclaim values—rather, it lays out the means by which we

have agreed to pursue those values.

If the purpose of the Constitution is indeed to establish

a working government, rather than to enunciate broad

principles of political philosophy, then I suggest that

the best way to begin any exercise of constitutional

interpretation is through a straightforward application of

the text. Does this seem obvious? That would only be

because you have not been schooled in the law; for this

style of interpretation, sometimes called “formalism,” is

widely scorned in legal circles.

This theory of interpretation, which takes the Constitution

seriously as a blueprint for a working government, does not

suggest that there is no need to interpret the Constitution

or that all constitutional disputes have clear answers

Nor does it suggest that there is never any room for the

consideration of what some have termed “constitutiona

values.” But it does dramatically reduce the opportunities

for unelected judges to substitute their personal values for

the democratic process and the rights protected by the

Constitution.

Reducing Judicial Mischief

How does this work? Let us start with a simple example

involving another of those pedestrian, administrative

procedures that make up the bulk of the original document

Article I, Section 4 provides in part that “Congress shal

assemble at least once in every year.” Does this mean that

Congress shall meet at least once every 365 days? Or does

it mean that Congress must meet at least once in each

calendar year? I suppose one could debate this, but even

the most creative constitutional scholars would be hard

pressed to interpret it to mean that Congress may go from

January 1 through December 31 without ever meeting, or

that Congress must meet more than once in a year.

Thus, while a need to interpret exists, the simple language

goes a long way to answering any questions

We need not ask ourselves what “values

are at stake—although surely the founders

had reasons for wanting Congress to meetregularly, and those reasons originated in

values they held. The values are irrelevant to

the constitutional command. While other cases will be

more difcult, the principle remains.

Confusion from Kagan and Breyer

Take, for instance, my area of greatest expertise, campaign

nance law. Almost all judges and scholars agree that

limiting spending to circulate political messages violates

the First Amendment right to free speech. It costs money

to publish a book or a movie, to organize a rally, to rent

a hall for a speech, or to pay for campaign ads. Thus, alaw which specically prohibits raising money for these

purposes serves to limit political speech.

The First Amendment declares that “Congress shall make

no law…abridging the freedom of speech.” Yet despite

this rather clear command, Congress has frequently passed

onerous restrictions on political speech, and far too often

the Supreme Court has upheld these restrictions. Indeed

in a 2010 case called Citizens United v. Federal Election

Commission , then U.S. Solicitor General (now Justice) Elena

Kagan argued that the Constitution even permitted the

To curb

spending is

to curb speech.



Centennial Review, October 2011

U.S. government to ban political books and movies.1 Even

more remarkably, four Justices of the Supreme Court

seemed to agree.

How can this be? The answer is the substitution of “values”

for the actual provisions of the Constitution. Justice

Stephen Breyer, for example, is a leading theorist for the

idea of a values-based interpretation of the Constitution.

While Justice Breyer has made clear that he believes that

campaign nance regulations abridge free speech, he

also believes, as a matter of policy, that the regulation of

political speech can improve American self-government by

promoting better debate and greater political equality.

A Strong Presumption

Thus, despite the constitutional command that

“Congress shall make no law,” he argues that

“there is no place for a strong presumption

against constitutionality” of speech-abridging

regulations because “there are constitutionally

protected interests on both sides.”2 To those of us who

take language seriously, this is patently absurd. We do notargue that even such absolutist language as “Congress

shall make no law” is in all respects absolute. For example,

the government may be able to punish the unauthorized

distribution of classied material, or maintain libel laws.

But surely “Congress shall make no law…abridging the

freedom of speech” must at least mean that there is a

strong presumption against the constitutionality of a law

abridging what Justice Breyer agrees is “the freedom of

speech.”

The problem with Justice Breyer’s approach is that every

question of constitutional law that reaches the Supreme

Court is likely to have “constitutional interests”—values

—“on both sides.” Otherwise, it is difcult to envision that

anyone would ever take a constitutional challenge all the

way to Supreme Court. Once “constitutional values” can

be substituted for the actual language of the Constitution,

there is no meaningful check on the courts—or frankly, on

popular majorities, for legislators, too, agree to abide by the

Constitution—from doing whatever they want. In other

words, there is no Constitution.

First Amendment Makes No ExceptionsMoreover, to say that there are “interests” on both sides

and to then ignore the Constitution is, in most cases, likely

to be a means of ignoring the values that might actually

have led to the inclusion of the constitutional provision at

issue. Indeed, in this particular case, the First Amendment

could have provided exceptions for regulating speech “to

foster political equality” or to “improve public discourse”

or simply, “when necessary in the public interest.” That it

did not is perhaps recognition that the value most behind

What part of

‘make no law’

don’t they get?

the First Amendment’s protection of speech was a distrus

of government regulation of the political process.

Why are so many so eager to interpret the Constitution not

in terms of its actual provisions, but in terms of its alleged

values? The answer, oddly enough, is that many of thes

same persons are not particularly enamored of many of

the values that seem to have motivated the drafting of the

original document and its rst ten amendments, the Bil

of Rights.

What were some of the values behind the Constitution

They included national unity, as reected in the full faith

and credit clause; the power given the federal government to

coin money and carry out foreign policy; the requirements

of Article I, Section 8 that duties, imposts

and excises be uniform throughout the

country, and of Article I, Sections 9 and 10

that no duties may be laid on exports between

states; or Congress’s power to establish pos

roads. Clearly, representative democracy was

another important value. So far, so good. Few peopletoday do not share these values.

Founders Distrusted Power

But other values of the founding seem more controversia

today. Among the other values that surely inuenced

the Constitution were respect for private property and a

tremendous distrust of government power. These value

are discussed at length in the Federalist Papers and reected

in many provisions of the Constitution.

Prominent examples are the due process and procedura

protections of the Bill of Rights; the explicit protectionof private property and the right of contract found in

Article I and in the Fifth Amendment; and the document’s

careful division of power, with its three coequal branche

and bicameral legislature.

Another key value reected in the Constitution that seem

particularly unpopular today is the desire for a limited

government. The framers sought to support this not only

in the express limitations of the Bill of Rights but in the

structure of the government as one of enumerated powers

This concept has, over the years, been all but obliterated.

By resorting to constitutional “values” or “interests,”legislators and courts have been able to slip the actua

CENTENNIAL REVIEW is published monthly by the Centennial Institute atColorado Christian University. The authors’ views are not necessarily those ofCCU. Designer, Danielle Hull. Illustrator, Benjamin Hummel. Subscriptions freeupon request. Write to: Centennial Institute, 8787 W. Alameda Ave., Lakewood,CO 80226. Call 800.44.FAITH. Or visit us online at www.CentennialCCU.org.

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- John Andrews, Director1. 30 S. Ct. 876 (2010).

2. Nixon v. Shrink Missouri Government PAC, 528 U.S. 377 (2000) (Breyer, J., concurring).



Centennial Review

October 2011

Centennial Institute

Colorado Christian University 8787 W. Alameda Ave.Lakewood, CO 80226

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The Constitution

Means What It Says

By Bradley A. Smith

The U. S. Constitution is not a

living document evolving with

the times or a mirror reecting

contemporary values. It is agoverning document with clear

directives about procedures and powers. But misguided

judges, politicians, and professors have now put limited

government in grave jeopardy.

Centennial Review, October 2011 ▪ 4

constraints of the Constitution, creating a government

that is, in many ways, quite at odds with what the framers

of the Constitution appeared to have in mind.

Thus, when former Representative Phil Hare (D-IL) was

asked where the Constitution gave Congress the authority

to mandate that Americans purchase particularpackages of health insurance, he responded,

“I don’t worry about the Constitution…I care

more about people without health care.” Hare

was widely criticized for this, and the statement

may have contributed to his defeat at the polls in

November 2010.

Pelosi’s Astonishment

But in a sense, the congressman was merely following the

theories of Professor Bickel and Justice Breyer. His job, as

he saw it, was not to follow the Constitution, but rather its

values—at least as he saw them. And surely promoting the

health of Americans is a reasonable value, is it not?

This is why many who should have known better wer

surprised by the constitutional objections raised agains

the massive federal health insurance bill passed in 2010

As Speaker Nancy Pelosi asked in astonishment whe

questioned about the constitutional authority for the bill

“Are you kidding? Are you kidding?”

But if the Constitution is to serve any purpose, i

must be something more than a mere repository

of whatever values a judge or legislator ha

in mind. It provides the how , not the why , of

American governance.

So the recent focus on the Constitution and its actua

language, including its public reading on the oor of the

House of Representatives at the beginning of the 112th

Congress last January, is a good thing. A meaningfu

constitution imposes meaningful constraints and

procedures on the methods we use to try to fulll our values. No kidding. ■

Limitedgovernment

is fading.

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