The Loving, Loathing of the Constitution : Scholars and Lawyers Gather for Critical Observance of Document’s Bicentennial

The Constitution of the United States ought to: (A) have a jackhammer taken to it, or (B) remain untouched by 20th-Century Americans who don’t have the intelligence or foresight to rip apart the wisdom of the Founding Fathers.

Those were the two schools of thought converging on UCLA during the weekend for a critical observance of that complex document’s bicentennial. Often funny, more often deadly serious, the historians, judges, political scientists and legal scholars kept an audience of about 300 enthralled as they sometimes reviled Presidents, insulted the Supreme Court and lamented the Constitution’s 200th birthday as “a year of mindless genuflection” before an outdated piece of yellowed parchment. Using history and current events such as the Iran- contra scandal to make their points, panelists such as former Watergate prosecutor Archibald Cox and Pulitzer Prize-winning historian James MacGregor Burns agreed that the nation is in almost constant crisis and often immobilized by constitutional gridlock on pressing issues.

Burns a Stern Critic

But there was no consensus on what to do about a variety of topics, ranging from supposedly better ways to implement democracy, to limiting presidential power, to the need--or lack of it--for a constitutional convention.

Perhaps the sternest critic of the day was Burns, who said the Constitution “has crushed the aspirations of the American people” and was crafted by men who “designed a constitution that would flout majority rule.” Burns, author of acclaimed works on President Franklin D. Roosevelt and American political and intellectual history, cited what he said were long delays in the adoption of child labor laws and legal battles over slavery preceding the Civil War to support his rhetoric.

Burns also called the process of settling national policy disputes by litigation before the Supreme Court “a hell of a way to run a railroad.”

Nonetheless, Burns called the Constitution “the most creative and effective act of political intellectual planning in the history of the Western world.” This comment prompted UCLA law professor Murray L. Schwartz to say, “Prof. Burns called the Constitution the greatest intellectual achievement of the Western world and then proceeded to dump on it.”

It was Burns, too, who said he feared most observances of the bicentennial would be uncritical, making this “a year of mindless genuflection” that does little to promote greater awareness and understanding of the Constitution. Rather than wearing Constitution-emblazoned T-shirts, Burns suggested that every American should take time to reflect on its meaning today.

“We all must be framers of the Constitution,” he said. “We must all make our intellectual journeys to Philadelphia.”

President and Congress

James L. Sundquist, a senior fellow at Washington’s Brookings Institution and author of a book on constitutional reform, advocated amendments that he said would assure greater unity between President and Congress and give representatives a chance to pay attention to their jobs instead of fund raising for the next election. Among other things, Sundquist proposed amendments giving representatives four-year terms instead of two, senators eight-year terms instead of six and putting limits on the President’s war powers. These amendments, he said, would help bypass the intent of the Founding Fathers “who clearly distrusted government and wanted to tie it in knots.”

Changing the terms of congressmen also would go a long way toward reforming the electoral process and might shorten presidential campaigns, Sundquist said. He added that today’s many state primaries and caucuses might have discouraged previous Presidents from seeking office. Franklin Delano Roosevelt “would not have decided he should spend 44 days in Iowa,” Sundquist argued, adding that New York Gov. Mario Cuomo may have dropped out of the 1988 race partly because of this prospect. At another point, he said, “If you have five bad Presidents in a row, something might be wrong with the system.”

Others, like UC Berkeley law professor Martin M. Shapiro, cautioned that the Constitution--with its checks and balances--is not itself to blame for government’s frequent failure to act, or for the shortcomings of national leaders.

“When a very substantial majority of the American people agree on what they want done, it gets done,” Shapiro said, citing poverty and civils rights legislation passed by Congress in the 1960s. “Now we’re not sure we know how to take welfare mothers and make them into better and more productive people. We don’t know how to solve crime. . . . The deadlock that we perceive in the United States . . . is a deadlock caused by our own uncertainties.”

Public Opinion

On most issues public opinion offers no clear mandate for action, Shapiro added. “Fifty-seven percent of the people believe a little bit that something should be done and 30% absolutely believe that nothing should be done,” he said.

Replying, Sundquist harrumphed that Shapiro was offering a hackneyed rationale for inaction. “If we never acted until we were absolutely sure what the outcome would be, nobody in this country would ever get married and nobody would ever have any children,” he said.

Participants also were split on the advisability of a constitutional convention, a step that has been proposed in recent years by opponents of abortion and supporters of a balanced federal budget, among others.

Stanford University law professor William Cohen, who was a law clerk for late Supreme Court Justice William O. Douglas, labeled a constitutional convention “a personal horror” and “a recipe for chaos.”

But Oregon Supreme Court Justice Hans A. Linde, also a clerk to Douglas, said, “I don’t think it’s such a bad idea at all.” Amendments proposed by a convention would have to be ratified by the states, he said, adding that in recent years many states have revised or adopted new constitutions “without great harm.”

Meanwhile, Cox, the participant who was most involved in a constitutional crisis, said in a luncheon address that he sees parallels between the Watergate scandal that led to the resignation of President Richard Nixon and the current furor over selling arms to Iran and using the money to fund the contras’ war against the Sandinistas in Nicaragua.

Letter of the Law

The current scandal resembles Watergate because “. . . even if there were no crimes, officials at or at least near the highest levels of government secretly played fast and loose with the letter of the law, relied upon conveniently forced interpretations (of the law) and violated its spirit, if not its letter,” Cox said.

Cox, fired by Nixon after he subpoenaed White House tapes related to Watergate, said the will of the people ultimately forced the former President to turn over the evidence. Constitutional government depends “upon a people’s realization that their freedom depends upon voluntary observance of the rule of law,” he said. “The realization must be strong enough for the community to rise up and overwhelm, morally and politically, any notable public offender.”

Cox blamed both scandals partly on the unchecked power of presidential aides. The former prosecutor stopped short of calling for constitutional reform to rein in the President’s assistants. But regarding the two former White House aides who figure in the Iran-contra affair, he said, “For my part, no President needs power to have such aides as (Vice) Adm. (John M.) Poindexter and (Lt.) Col. (Oliver L.) North manage a privately financed supply of arms to military forces on foreign soil in the face of a congressional refusal to appropriate funds, no matter what the merits or demerits of that far conflict.” THROUGH THE YEARS Some important U.S. Supreme Court decisions interpreting the Constitution, thereby determining where governmental power resides in this country.

McCulloch vs. Maryland, 1819 Established broad definition of Congress’ constitutional mandate to enact all laws that are “necessary and proper” to fulfill its legislative duties.

United States vs. Darby Lumber Co., 1941 Gave Congress authority to forbid interstate shipment of goods made in violation of federal wage and hour standards.

Wickard vs. Filburn, 1942 Held that the federal government has power to regulate matters that may impinge only remotely on interstate commerce.

Youngstown Sheet & Tube Co. vs. Sawyer, 1952 Ruled that President Truman exceeded his powers by seizing steel mills to prevent a strike. The court said such action required congressional authorization.

Heart of Atlanta Motel vs. United States, 1964 Established right of Congress to prohibit racial discrimination in privately owned public accommodations.

United States vs. Nixon, 1974 Held that President Nixon must submit to judicial demands for evidence, specifically recordings of conversations related to the Watergate scandal.

Dames & Moore vs. United States, 1981 Established President Carter’s right to nullify court orders and suspend lawsuits against Iranian assets in the United States as part of an agreement with the revolutionary Iranian government that freed 52 American hostages.

Immigration and Naturalization Service vs. Chadha, 1983 Struck down the “legislative veto,” which had given the executive branch authority to act in some areas, subject to the later overrule by one or both houses of Congress.

Garcia vs. San Antonio Metropolitan Transit Authority, 1985 Paved the way for federal control over wages and hours of all state and municipal employees.

Cases selected by Jonathan D. Varat, UCLA professor of law.