303 Creative and the Voice of the People
Who speaks for the Constitution? If the Constitution wants to say something, who is its tribune? Especially when its meaning isn’t plain and can’t be read clearly off the page, to whom do we look to make it plain? And even if we figure out its meaning, who will tell us how it’s to be applied to our lives? In his famous Federalist 78, Alexander Hamilton raises the stakes of this question when he contends that the Constitution is the supreme law of the land, trumping all other laws, including legislation passed by Congress. It’s supreme, he says, because the Constitution is the American people’s most fundamental statement about government’s powers and limits, and who we are as Americans. The people speak all the time through elections, but the utterance that matters most of all is the one that finds its expression in what we call the U.S. Constitution.
So let’s the ask the question a different way: how do we hear the people’s voice, especially when it speaks in its most fundamental way in the Constitution? How do we hear our own voice? Who will speak back to us what we already believe about the basic structure and limits of our government? Who will clarify for us what we think about our own identity? Who will speak to us on our behalf?
Because the Constitution itself doesn’t clearly identify its own interpreter, we have to think through who this might be. As the first branch of government, the Congress seems like a likely option. On further examination, however, the body is designed to be internally divided, marked by partisan squabbles and infighting. Also, its job is mainly to raise and spend money, important matters that don’t rise to the level of constitutional interpretation. Historically, too, Americans haven’t readily looked to any one member of Congress to fill the role of constitutional spokesperson.
The presidency also seems like a good candidate, especially because it’s a unitary office not subject to internal divisions. And, as Jeffrey Tulis observes, 19th century presidents often avoided partisan debates about policy, choosing instead to use their pulpits to educate Americans about constitutional principles. But with Woodrow Wilson and FDR especially, the presidency became a partisan office, and it remains that way today. When the president speaks, even if he tries to say something about our basic ideals, half the country typically tunes him out.
Of course, that leaves the Supreme Court as our only other viable option, and perhaps it is the best one. Indeed, as Hamilton argues in Fed 78, it’s the Supreme Court’s task to say what the Constitution means. As a body of unelected judges who typically serve for life, they have the luxury of listening to the people’s more measured voice without worrying about the effects of its more passionate moments. This principle is reiterated by Chief Justice John Marshall in Marbury v. Madison, when he says, “It is emphatically the province and duty of the judicial department to say what the law is.”
But while this principle has cache and has been internalized by elected officials and Americans who pay attention, how does it work in practice? Well, let’s take a look at just one of the big cases from this term, 303 Creative v. Elenis. Here’s a case involving Lorie Smith, a website designer who claims Colorado anti-discrimination law violates her First Amendment freedom to speak. More specifically, she wants to go into the wedding website business, but does not want to create websites for same-sex marriages (as the law would require), since to do so would violate her right to say what she believes.
Justice Neil Gorsuch, writing for the majority of the Court, argued that the Colorado law does indeed violate Smith’s freedom of speech, not because it prevents her from speaking, but rather because it compels her to say something she doesn’t want to say.
So, there we have it, right? In our search for the voice of the Constitution, the voice of the people at its most basic, its most important, its most fundamental, we have the voice of Neil Gorsuch, clarifying for us, speaking back to us, and reminding us what we do indeed believe about the limits of government as applied to compelled speech.
Well, it may not be that simple. For just like in almost every major constitutional case we have today, there’s a dissent, a dissent written by Justice Sotomayor and joined by Justices Jackson and Kagan. These justices do not see Lorie Smith’s speech being compelled, but rather they see her conduct as violating Colorado antidiscrimination law, conduct not protected by any constitutional provision.
So what is the Constitution trying to say in this case? What do the people really want? It seems like we have at least two options, and they both reveal that attempts to hear our own voice are not easy.
First, it’s possible that the people really are speaking through Justice Gorsuch, and perhaps over time it will become clear to all that he has it right, as the law becomes more settled and ingrained into the national consciousness. Perhaps.
But the second option is this: the American people have never been able to speak in a clear, unified voice about the meaning of the Constitution and its application to our lives. Just like Jefferson and Hamilton immediately differed over the constitutionality of the national bank, so today, Americans differ over the meaning and application of religious freedom, the right to an abortion, free speech, and equal protection of the law. In the case of 303 Creative v. Elenis, again, while half the country sees a woman claiming her freedom to speak, the other half sees a woman using her bigotry to engage in unlawful discrimination.
Who can hear the people’s voice, and who can tell us what it’s saying?
