Date: 2008-07-10
Speaker: DANIEL E. LUNGREN (republican)
Chamber: H
State: Cali

fornia. Madam Speaker. we are in this Chamber just several days removed from our July 4th district work period. and I had reserved time on the Friday before our scheduled departure to discuss the importance of and the relevance of the birth date of this Nation. Since our session for that day was canceled. this is my first chance to speak on that subject. Nearby in the Capitol rotunda hang four paintings crafted from the hand of John Trumbull. one of George Washingtons aidesdecamp during the Revolutionary War. In the first of them. members of the Second Continental Congress. now 232 years ago. signed their names to the Declaration of Independence. thereby formalizing a severance of the institutional bonds between the colonies and their mother country. Out of a "decent respect for the opinions of mankind." they stated the reasons for this action in assiduous detail. invoking the "laws of nature and of natures God" and the natural right of revolution because their inalienable natural rights had been abridged. Twelve years later. after a long. exhausting. but ultimately successful war for independence. the people of this country were debating in ratifying conventions up and down the eastern half of our now expansive land whether to ratify or reject a new governmental framework for our experiment in selfgovernment. That document. our Constitution. which Akhil Amar. perhaps understating the case. has called "one of the most important legal texts in human history." would ultimately be approved. and thus would commence the beginning of our new government. Today in the afterglow of the colorful commemoration of our national independenceand I might say I was fortunate enough to enjoy the fireworks at Kings Beach. California. and Incline Village. Nevada. as well as the city of Folsom Rodeo this past weekendI rise to celebrate our twin pillars of freedom. the Declaration of Independence and the Constitution. Madam Speaker. they are much more than dry pieces of parchment from centuries bygone. No. They are documents which embody the very notion of our independence. recognizing our unique quality of selfgovernment and cementing our commitment to constitutionalism. Make no mistake. this was something much more than just and efficacious for mankind than that which had come before. Yes. we have much to celebrate. Madam Speaker. these celebratory facts were not foreordained. As Carol Berkin has written. 1786. "was the 10th anniversary of the Declaration of Independence and the third year of life in a new Nation. but political leaders everywhere feared there was little cause to celebrate. Dark clouds and a suffocating gloom seemed to have settled over the country. and these men understood that something had gone terribly wrong. "From Virginia. George Washington lamented the steady stream of diplomatic humiliations suffered by the young Republic. Fellow Virginian. James Madison. talked gravely of mortal diseases afflicting the confederacy. In New.Jersey. William Livingston confided to a friend his doubt that the Republic could survive another decade. From Massachusetts. the booksellerturned revolutionary strategist. Henry Knox. declared. Our present Federal Government is a name. a shadow without power or effect. Feisty. outspoken John Adams. serving as Americas minister to Great Britain. observed his Nations circumstances with more than his usual pessimism. The United States. he declared. was doing more harm to itself than the British Army had 6ver done. Alexander Hamilton. John Jay. James Monroe. Robert Morris. in short. many from every State. agreed that a serious crisis had settled upon the Nation. The question was: Could they do anything to save their country?" The answer that came forth was a thunderous yes. They did do something to save their country. Our Constitution was the fruition of 4 long. hot months of deliberation in Philadelphia. Pennsylvania. On September 15. 1787. delegates there finalized a text. and 13 days later Congress. then meeting in New York. voted unanimously to send the proposed Constitution to the people of each State for ratification. Madam .Speaker. the framers of our Constitution articulated a new science of politics. It had been believed that republics were only feasible as small homogenous clusters and were most likely destined to fail. since Democratic governance could lead to the tyranny of the majority or demagogic usurpation of peoples consent. sovereignty rights. and freedoms. And so this new. unproven republican design was put before the people through the instrument of ratification. James Madison. the Father of the Constitution. said that without ratification. the Constitution was like a dead letter. In fact. life and validity were breathed into it by the voice of the people. speaking through several State conventions. Contrary to contrary expectations in the 21st century. popular ratification was a novel idea. Underscoring the boldness of their venture. several States even made their voting qualifications more inclusive than before so that more could partake in the ratification process. And what a rich process it was. Brutus. Publius. Antifederalists. Federalists. The debates over ratification still enlighten. inform. and reminds us of the seriousness with which we take our political system and the principles embedded within it. So its important for us to remember just a week after this grand Fourth that our history included framers. signers. and ratifiers. and as always. then as now. there were also those of us. merely we. the people. As Alexander Hamilton wrote to the voters of New York in Federalist Paper No. 1. "After an unequivocal experience of the inefficacy of the subsisting Federal Government. you are called upon to deliberate on a new Constitution for the United States of America. The subject speaks its own importance. It has been frequently remarked that it seems to have been reserved to the people of this country by their conduct and example to decide the important question. whether societies of men are really capable or not of establishing good government from reflection and choice. or whether they are forever destined to depend for their political constitutions on accident and force. If there be any truth in the remark. the crisis at which we arrived may. with propriety. be regarded as the era in which that decision is to be made. and a wrong election of the part. we shall act may. in this view. deserve to be considered as the general misfortune of mankind." Thankfully. many agreed with Hamilton. and our Constitution is still intact today. 220 years later. In the intervening years. much his been writgen about how to appropriately interpret our Constitution. What do Its clauses mean. what do its phrases imply. what is the scope of this or that respective enumerated or unenumerated power? How are we to approach or understand issues today that were unforeseen in 1787 or 1788? Madam Speaker. I believe the constitutional interpretation should be a principled process. moored and anchored in the text. ascending up from the text. meaning context. and history of the words. phrases. concepts and structures of the Constitution itself. not a deductive process says that begins by asking. as one former Justice. according to one of his former law clerks. used to ask. What is the just result. and working backwaid from the answer to that question to see how it would comport with relevant theory or precedent. I am for ultimate justice. Madam Speaker. But such an untethered interpretative technique is neither just nor fair to the individuals in specific cases. Justice implies measurement by some objective standard in an appropriate and specified context. not in a freeranging philosophy seminar that only tangentially touches upon the context for this particular discussion that is the Constitution of the United States. Akhil Amar is right. "A careful examination of constitutional text. history. and structure will often leave us with a clear answer. At other times. however. the most the document can yield is the right set of questions to ask ourselves." But this is no deficiency. As we all know. asking the right question is the first and most important step towards appropriate adjudication and resolution. Now some have argued through our history that the Constitution is outdated and irrelevant to our contrary circumstances and lives. Outdated. irrelevant? How could it be. and what does that mean? For it to be outdated wed have to ignore Chief Justice John Marshalls words when he said that. "We must never forget it is a Constitution we are expounding." Why would he exhort us to elucidate something outdated and irrelevant? One prominent Justice once said that Justices should adjudicate according to the felt necessities of the time. This is contrary to the thoughts of John Story. who wrote in his famous Commentaries that the Constitution has. "a fixed. uniform. and permanent construction." To measure the felt necessities of the time is an impossible task. Whose necessities are to be felt. how are such feelings to be measured. is this the proper role of the judiciary. even if it were possible? As Hamilton wrote in Federalist No. 78. the judicial branch was to have neither force nor will. In Osborne versus Bank of the United States. Justice Marshall said that the judicial department has no will in any case. Judicial power is never exercised for the purpose of giving effect to the will of the judge. always for the purpose of giving effect to the will of the legislature or. in other words. to the will of the law. Judicial power. as contradistinguished from the power of law. has no existence. Courts are mere instruments of the law. and can will nothing. Again. Story reminds us that the judge ought not to enlarge the construction of a given power beyond its fair scope of its terms merely because the restriction is inconvenient in politic or even mischievous. Since the Government of the United States is one of limited and enumerated powers. a departure from the true import and sense of its power is pro tanto in the establishment of a new constitution. It is doing for the people what they have not chosen to do for themselves. It is usurping the functions of a legislator and deserting those of an expounder of the law." In another case. Justice Marshall wrote. "to say that the intention of the instrument must prevail. that this intention must be collected from its words. that its words to be understood in that sense in which they are generally used by those for whom the instrument was intended. that its provisions are neither to be restricted into insignificance. nor extended to objects not comprehended in them. nor contemplated by its framers. is to repeat what has already been said more at large and is all that can be necessary." Thus. the Constitution endeavors to draw the broad strokes of principle and dimension. not to articulate each and. every iota of detail which may arise from the entire future of American history. In McCulloch versus Maryland. Chief Justice Marshall tells us. "A constitution. to contain an accurate detail of all the subdivisions of which its great powers will admit. and of all the means by which they may be carried into execution. would partake of the prolixity of a legal code. and can scarcely be embraced by the human mind. It would. probably. never be understood by the public. Its -natihre therefore requires that only its great outlines should be marked. its important objects designated. and the minor ingredients which compose those limits be deduced from the nature ate of the objects themselves. "That this idea was entertained by the Framers of the American Constitution is not only to be inferred from the nature of the instrument. but from the language. Why else were some of the limitations found in the ninth section of the first article introduced? "It is also. in some degree. warranted by their having omitted to use any restrictive term which might prevent its receiving a fair and just interpretation. In considering this question. then. we must never forget that it is a Constitution we are expounding." In the Dartmouth College case. Marshall explained that. "although a particular and rare case may not in itself be of sufficient magnitude to induce a rule. yet it must be governed by the rule when established unless some plain and strong reason for excluding it can be given. It is not enough to say that this particular case was not the mind of the convention when the article was framed. nor the American people when it was adopted. The case. being within the words of the rule. must be within its operation likewise." In contrast to those who believe that the Constitution is nothing but a set of policies which enjoy popular acceptance at the time of ratification. followed by judicial interpretation in light of the conditions and opinions of later years. I would agree with the esteemed judge and scholar. Michael McConnell. who has written that. "constitutional language is an embodiment of legal principles. it is necessary to understand those principles in order to understand the Constitution." It would be most unwise to separate and detach all interpretive ties to the text and context of the actual document as Well as to the structure and concepts with it because. Madam Speaker. once that is done. we now would be playing a deductive game of polling and power based on the momentary whims of the people and the magnified moods of missionaryminded judges. Constitutional jurisprudence must be more than the inevitable byproduct of different political and social milieus. In the traditional enterprise of constitutional law. the meaning of the Constitution is seen to be a legitimate question for historical interpretive inquiry. I would argue this should not change. Madam Speaker. our Declaration and Constitution are worth celebrating here tonight because of the unique framework they give us to govern ourselves to prosper by offering ourselves economically. socially. and societally according to the rule of law and to attempt to discern the common good. It also allows individual citizens and communities the capacity and volition to decide for themselves whether to shrink from or rise to doing their duty as citizens and individuals. since republicanism empowers the people. So this is our challenge. As de Tocqueville said. "in Democratic times especially. the true friends of freedom and human greatness must be on guard because an inordinate amount of individualism can lead to selfseclusion. fear. and temerity. But it doesnt have to be this way. As Harvey Mansfield has reminded us. our constitutional system allows for democratic greatness to appear in individuals with extraordinary knowledge. vision and ability. but such individuals are always constrained by constitutional boundaries. More importantly. since our system recognizes the fallibility of our human nature. it does not depend on honor and virtue being constantly present in the executive or in positions of legislative or judicial leadership. Thankfully. our constitutional system allows for ideas and societal passions to be filtered through the vortex of time. transparency and deliberation. As Federalist No. 10 says. "As long as the reason of man continues fallible and he is at liberty to exercise it. different opinions will be formed. As long as the connection subsists between his reason and his selflove. his opinions and his passions will have a reciprocal influence on each other and the former will be objects to which the latter will attach themselves. The diversity in the faculties of men from which the rights of property originate is not less an insuperable obstacle to the uniformity of interests. The protection of these faculties is the first object of government. From the protection of different and unequal faculties of acquiring property. the possession of different degrees and kinds of property immediately results. and from the" influence of these on the sentiments and views of the respective proprietors ensues a division of the society into different interests and parties." And then he says something very interesting. "The latent causes of faction are thus sown in the nature of man. and we see them everywhere brought into different degrees of activity according to the different circumstances of civil society. It is in vain to say that enlightened statesmen will be able to adjust these clashing interests and render them all subservient to the public good. Enlightened statesmen will not always be at the helm. Nor. in many cases can such an adjustment be made at all without taking into view indirect and remote considerations. which will rarely prevail over the immediate interests which one party may find in disregarding the rights of another or the good of the whole." So. Madam Speaker. given the potential for evil intrinsic within human nature. our framers were wise not to give man too much credit. but not so pessimistic as to regulate themselves to fatalistic hopelessness. Our system of checks. balances and federalism allows for the refining and enlarging of public views. As Madison writes in Federalist 55. "As there is a degree of depravity in mankind which requires a certain degree of circumspection and distrust. so there are other qualities in human nature which justify a certain portion of esteem and confidence. Republican government presupposes the existence of these qualities in a higher degree than any other form. Were the pictures which have been drawn by the political jealousy of some among us faithful likenesses of the human character. the inference would be that there is not sufficient virtue among men for selfgovernment. and that nothing less than the chains of despotism can restrain them from destroying and devouring one another." Madam Speaker. the history of the past 220 years teaches us that we do not need the chains of despotism to restrain ourselves from selfmutilation. Our Constitution has served and continues to serve us well in times of intense societal debate and in times of relative calm. Herman Belz has written that "the framers intended the Constitution as a permanent instrument of government for the American people and that instrument has proven to be quite remarkable." Several years ago. a former Associate Justice of our Supreme Court said that "the Union survived the Civil War. the Constitution did not. In its place arose a new. more promising basis for justice and equality. the 14th amendment." I would humbly disagree with that assessment. The Constitution is the Constitution because of its amendability. whereby it allowed for just such a development as the 14th amendment to take place. fulfilling its original purpose. that is. to devise a system of government presupposing the equality of persons under the law. One current Justice has recently said that "the Constitution evolves and should reflect changes in society. that going back to what was meant originally when they wrote. for instance. We the People makes little sense." I disagree. It does make sense. "We the People" did institute this government. or else under what court and government does the Justice now serve. since this government is the one constituted in 1789 and in continuation to this day? Thankfully. we. unlike any other government then established on earth. set up a constitutional framework that allowed for changes to be made according to the orderly deliberation of society through representation and the legitimacy of the legislative process. Let us not forget. as Akhil Amar has said. that "the framers themselves also were. after all. revolutionaries who risked their lives. their fortunes. and their sacred honor to replace an Old World monarchy with a New World order unprecedented in its commitment to popular selfgovernment. Later generations of reformers repeatedly amended the Constitution so as to extend its liberal foundations. dramatically expanding liberty and equality." Thankfully. throughout our history we have had leaders and statesmen who were committed to constitutionalism and not to power and might. After all. as Lincoln said in his first inaugural. "If. by the mere force of numbers. a majority should deprive a minority of any clearly written constitutional right. it might. in a moral point of view. justify revolution." As Federalist 71 stated. "The Republican principle demands that the deliberate sense of the community should govern the conduct of those to whom they entrust the management of their affairs. but it does not require an unqualified complacence to every sudden breeze of passion or to every transient impulse which the people may receive." Madam Speaker. none of us has the right to oppress minorities. let majorities rule tyrannically or turn the Constitution into a grab bag of personal policy preferences and arbitrary power grabs. We all have a responsibility to study the Constitution and attempt to humbly delineate the contours of confluence between constitutional principle and our contemporary realities to which it has applied. Each of us has a duty to do this. After all. each member of the three representative branches takes an oath to "support and defend." or to "preserve. protect and defend" the Constitution of the United States. We must take those oaths seriously. We must take the 9th amendment seriously. which states. "The enumeration of the Constitution. of certain rights. shall not be construed to deny or disparage others retained by the people." We must take the 10th amendment seriously. which states. "The powers not delegated to the United States by the Constitution. nor prohibited by it to the States. are reserved to the States respectively. or to the people." These are important clauses and should not be forgotten. lest we forget the accumulation instead of the dispersion of power is the very reason we sought our independence. unless we assume selfgovernment is free. easy. and passively perpetual. And in this regard. I would refer to Alexander Hamiltons words in the Federalist Papers No. 78. where he described his vision of the judiciary as one of the three major branches. And these are his words: "Whoever attentively considers the different departments of power." they referred to the branches as "departments." "whoever attentively considers the different departments of power. must perceive that in a government in which they are separated from each other the judiciary. from the nature of its functions. will always be the least dangerous to the political rights of the Constitution." He goes on to say. "It proves incontestably that the judiciary is beyond comparison the weakest of the three departments of power. that it can never attack with success either of the other two. and that all possible care is requisite to enable it to defend itself against attack." But then he goes on to make an interesting point that is often lost. He says. "As liberty can have nothing to fear from the judiciary alone. but would have everything to fear from its union with either of the other departments." What he is saying in current vernacular is that if the judiciary ever trespasses on the proper powers of the other two branches. it will become the most dangerous. He is suggesting that in the area of the activity of the democratic branches of government. that is those who are elected by the people and most readily subject to their action. the executive. and particularly the legislative. that if any of their power is encumbered. encroached. trespassed upon or poached by the judiciary. it would become. rather than the weakest. the most dangerous branch of government. That is why I would suggest that we ought to look at the words of Chief Justice Roberts when he was up for his confirmation hearings in the Senate. When asked what his philosophy was. among other things he said. "One of judicial modesty." I have often used the word "judicial humility." and what I mean by that is a recognition of the limitations of the expanse of their power. Judge Andrew Kleinfeld of the Ninth Circuit Court of Appeals in his dissent in Compassion in Dying v. State of Washington case in 1996 said these words: "That a question is important does not imply that it is constitutional. The Founding Fathers did not establish the United States as a democratic republic so that elected officials would decide trivia while all great questions would be decided by the judiciary. That an issue is important does not mean that the people through their democratically elected representatives do not have the power to decide it. One might suppose that the general rule in a democratic republic would be the opposite. with a few exceptions." One of the proper understandings of the Constitution. Madam Speaker. is that there are limitations for all three branches of government. including the judiciary. and that the judiciary. if it makes a mistake of reaching beyond what its role ought to be. destroys the intrinsic value and purpose of the other two. To put it another way. Justice. Scalia said a number of years ago in a speech. he said when he was a kid growing up and you saw something that you didnt like or you thought that was wrong. your response was there ought to be a law. But he says. today if you see something you dont like or something you think is wrong. your response is. it is unconstitutional. Now. those are just a few words changed in your response. Your emotional response to the situation is the same. maybe even your intellectual response to the substance is the same. but your response in terms of the manner by which you address the problem is so different that it radically changes the substance as well as the environment. What do I mean by that? When an issue is determined to be constitutional. it becomes ultimately the final decisionmaking arena of the courts. It is taken out of the hands of the democratic branches. because the democratic branches cannot. unless they enact a formal amendment to the Constitution. cannot do anything to overturn that decision by the court. So if we define every important issue as a constitutional issue. we are rendering impotent to a degree both the executive. but. more importantly in my judgment. Madam Speaker. the legislative branch. and particularly the House of Representatives. So as we should understand the reach and limits of our branch. as the executive branch should understand the reach and limitations of their branch. so ought the judicial branch. Madam Speaker. today. because of the Declaration and the Constitution. we do not live under the perverted political thumb of the divine right of kings. under the specter of religious persecution and bloody religious wars. under monarchy. or feudalism. For that we are thankful. We are not a blood and soil Nation. We are a propositional Nation. committed to the equal natural rights of all citizens to life. to liberty. to the pursuit of happiness. not to the immediate satisfaction of momentary appetites. We are a Constitutional system in a multifaceted society that guards against the twin evils that may be found in popular democratic government: Majority tyranny on the one hand. and demagoguery on the other. Our mediating institutions. whether they are families. whether they are churches. and our voluntary associations are so important because they temper our unrestrained passions. Madam Speaker. the Declaration and Constitution can edify and teach Americans about our history as a people. Ours is a history that includes millions of honorable citizens and numerous men and women of extraordinary contribution: Men like Roger Sherman. who was one of only two men who signed the Declaration. the Articles of Confederation. and the Constitution. He was a delegate to the first and second Continental Congresses. He was a member of the fiveman committee formed to draft the Declaration of Independence. and a member of the Committee of Thirteen formed to comprise the Articles of Confederation. At the Constitutional Convention in 1787. he actually delivered more speeches than all but three others.- He was instrumental in the Great Compromise. was a Member of the first U.S. House of Representatives. later served in the Senate. where he played important roles in the debate over the Bill of Rights and the national bank. Or men like John Dickinson. a Quaker from Delaware and Pennsylvania who served both States as the elected chief executive. Dickinson wrote the instrumental Letters From a Farmer in Pennsylvania. which circulated in 1767 and 1768. was a delegate to the Stamp Act Congress in October of 1765. where he drafted the Declaration of Rights and Grievances. A member of the first and second Continental Congresses. Dickinson was a principal draftsman of the Declaration of the Causes and Necessity of Taking Up Arms issued in July 1775. and one of Delawares delegates to the Constitutional Convention of 1787. Or. finally. men like James Wilson. who made more speeches than anyone at the Constitutional Convention. than Governor Morris. served on the Supreme Court and articulated so eloquently the principles of natural rights our Declaration and Constitution were meant to protect. Madam Speaker. a few years ago. the esteemed historian Bernard Bailyn wrote a short series of essays which he entitled To Begin the World Anew. Taking his title from the hopes and pens of Thomas Paine. in this splendid and fascinating collection of essays he explained how the Founders. including those just like the ones I mentioned. were provincial. they were isolated. they were unaristocratic. yet their perseverance. imagination. and vision were not inhibited. leading to what Carol Berkin has called. "A brilliant solution: Our Constitution." Indeed. it was and is. Several years ago. it was written that. "At the dawn of a new millennium. constitutional law is at risk of losing touch with the Constitution itself. A dense doctrinal grid threatens to obscure the document with generally unfortunate consequences. The Constitution is wiser than the Court. The document will outlast many of todays doctrines. and it provides a stable fulcrum from which to criticize some of the Courts less admirable adventures." Let this always be the case. For as John Ely has written. "Though the identification of a constitutional connection is only the beginning of analysis. it is a necessary beginning. The Court is under an obligation to trace its premises to the charter from which it derived its authority. It should do this for many reasons. none other than the fact that what the American people have said and done in the Constitution is often more edifying. inspiring. and sensible than what the justices have said and done in the case law." Madam Speaker. today our Declaration and Constitution should be celebrated. not as mere icons or cultural symbols that immature societies need to give them cultural and simplistic cohesion. No. the Declaration and the Constitution should be celebrated for what they really are. demarcations of our commitments as a people to as wise a system as possible. given our human fallibility of government here on Earth. I happen to agree with a current Member of the Senate who said. "I have a deepseated belief that America is unique. strong and great. because of a commitment to personal freedom. in our economic system and our politics. We are a free people who consented to be governed. not vice versa." I would also agree with the aspiration of Justice John Marshall Harlan. who wrote. "In the view of the Constitution. in the eye of the law. there is in this country no superior. dominant. ruling class of citizens. There is no caste here. Our -Constitution is colorblind. and neither knows nor tolerates classes among citizens. In respect of civil rights. all citizens are equal before the law. The humblest is the peer of the most powerful. The lAw regards man as man and takes no account of his surroundings or of his color when his civil rights as guaranteed by the supreme law of the land are involved." Madam Speaker. 1776 was not a year free of bloodshed and hardship. "It was anything but. We are now over. 22 decades removed from those events. 22 decades which have seen our great country grow. prosper. suffer4 mourn. rejoice. exalt. and contemplate while our lives and the lives around us were changed by technological. political. international. and societal change. We today honor those who sacrificed on the fields and hills of Lexington. Concord. Breeds Hill. Princeton. Saratoga. and Yorktown. We honor all those who sweated. debated. argued. thought. reasoned. wrote. and ratified the dodument by which we all do our collective best and our collective business here in Congress. in the White House. in the Supreme Court. and in this great country and society full of families. communities. localities. counties. and States. So let our twin pillars always guide. always steer. and always stay firm. tall. and strong as we continue to humbly exist as one of the many on this earth. yet one incomparable as to the rest. The Declaration and the Constitution. let us always declare. and let us continue to constitute our experiment in republican selfgovernment in such a way that we pay due deference to those who have come before. and make proud those who will come after. Hippy birthday. United States of America.