Strauss Asks: Does the Constitution Mean What it Says?

Law School Office of Communications
May 13, 2014

Does the First Amendment prevent the President from locking up his political opponents? Does the Equal Protection Clause forbid the government from enforcing racial segregation in parks? Does the Constitution limit intelligence agencies’ power to read citizens’ emails or listen to their phone calls? Does it prohibit a state from establishing an official religion?

Of course, right?

Right—but not if you take the Constitution literally. So says Professor David Strauss, in his Chicago’s Best Ideas talk, “Does the Constitution Mean What it Says?” The First Amendment refers only to “Congress,” and the President, as the Framers of the Constitution certainly understood, is not Congress. When the First Amendment was adopted in 1791, several states had official religions, and the phrasing of that section of the amendment – “Congress shall make no law respecting an establishment of religion” – was intended to keep Congress from establishing a federal religion and from disestablishing state religions. The Equal Protection Clause, the basis for court decisions outlawing segregation, requires equality—but only equality of “protection,” not recreation. And, as it happens, it speaks only of states, not of the federal government. The Fourth Amendment applies to searches of “persons, houses, papers, and effects”—and phone calls and emails are none of those things.

Additionally, the text of the Constitution does not prevent states from denying gay people or poor people the right to vote. It’s not clear, judging from the text, that the government has the power to print paper money—the Constitution uses the word “coin.”

But the text of the Constitution has been interpreted differently, and sometimes creatively, by the courts over more than 200 years. And that’s a good thing, Strauss said in his February 26 talk. The world changes, and so must the way we read the document. For this reason, he challenged those who rely heavily on the literal words of the Constitution when making legal and political arguments.

It’s possible to read the text to reach the conclusions we have reached, but that’s not the most natural reading, Strauss explained. So we are “finding answers somewhere other than the text”—generally in evolving precedent and tradition, Strauss suggested – and interpreting the text in a way that’s consistent with those answers. And that’s imperative. “What it does, far from dishonor(ing) the text, I think, is to honor and celebrate” the text for how it lends itself to interpretation “and also enjoin us to be properly humble about the human capacity to make progress, “Strauss said.

For example, in Brown v. Board of Education (1954), the Supreme Court relied on the Equal Protection Clause to outlaw racial segregation in public education. Segregation treated people unequally, but does “protection” include education? And even if the words can be stretched that far, what about race-segregated buses, parks, drinking fountains, restrooms, and other practices of the Jim Crow South that were later struck down because of the clause?

“It’s a great thing that we did that, make no mistake,” Strauss said. “But you’ll have a hard time getting there from the words” alone.

Strauss gave several other examples that show the peril of using 200-year-old words as “a recipe for modern life.” The founders lived in a different world. That’s why we should be grateful the Constitution seems to be written with some flexibility; the words are open to interpretation that evolves over time.

Actually, Strauss concluded, despite all the creative interpreting we have engaged in, “it is an amazing achievement to draft a document that has done as well as our Constitution has done,” he said.

David A. Strauss