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Sunday, September 11, 2005

Lessons of the Constitution

The New York Times
September 11, 2005
Constitutional Lessons, Old and New, on Display

PHILADELPHIA - The National Constitution Center has something for everyone: life-size statues of the document's framers, slave shackles beside the Dred Scott display and a copy of the 1962 petition from Clarence Earl Gideon, the Florida drifter whose legal battle won every accused criminal the right to a lawyer.

Late last month, one of the museum's chief boosters walked through, looking weak from Hodgkin's disease but showing no signs at age 75 of waning tenacity. His blue suit crisp, his few hairs white, he proceeded to an exhibit on the separation of powers, where models of the White House, Capitol and Supreme Court sit in precarious balance. Then the visitor, Senator Arlen Specter, declared that in real life things were out of whack.

"The balance of power is not being maintained in America today," said Mr. Specter, Republican of Pennsylvania. "The Supreme Court is interpreting the Constitution in derogation of Congressional authority."

The clash between a headstrong chairman of the Judiciary Committee and an assertive bench is just the kind of moment the museum might explore. Outside its walls, constitutional fissures are deep, growing and bound for public view as the Senate convenes its first hearings in 11 years on a Supreme Court nominee. And standing among the exhibits on fissures past, Mr. Specter announced a plan to make the hearings "a forum to, in effect, take on the court."

Agreeing to a reporter's request for a tour, Mr. Specter, who helped get $65 million in federal financing for the museum and whose wife, Joan, now works as a fund-raiser there, rang various constitutional alarms, including the treatment of foreign prisoners at Guantánamo Bay and the jailing of Judith Miller, a New York Times reporter he recently visited in Virginia, where she is serving a sentence for refusing to reveal a confidential source to a grand jury.

But his main theme was the court's battle with Congress. He has written two letters to the nominee, Judge John G. Roberts Jr., seeking his views on the court's "really disrespectful statements about Congress's incompetence." In a series of 5-to-4 rulings, starting with United States v. Lopez in 1995, the court has constricted Congressional authority, invalidating measures as different as antigun laws and civil rights remedies for disabled people. In one of those rulings, U.S. v. Morrison in 2001, Chief Justice William H. Rehnquist, whose death on Sept. 3 created a new vacancy, questioned Congress's fact-finding ability and its "method of reasoning."

The thought made Mr. Specter's blood boil. "Who are the justices to say that their method of reasoning is superior to those in the Senate or the House of Representatives?" he said.

He called the second-guessing an undemocratic power grab. "Supreme Court justices really get a great plum," he said, wandering past the exhibits. "I've had to be elected five times. It's really not a plum, believe me - it's a lot of work."

With a vibrant display of constitutional history, from the Magna Carta to Bush v. Gore, the two-year-old museum, an inkwell's toss from Independence Hall, offered a fitting backdrop for Mr. Specter's remarks. Started by Congress in 1988, it struggled for years to raise money and find common ground between liberal advisers, who feared hagiography, and conservatives who feared a warts-and-all approach would focus on warts alone. Yet since opening in 2003, it has put forward a vision of constitutional history both left and right have embraced.

Even Justice Antonin Scalia.

"It's a great place, isn't it?" he said in a telephone interview. One of three justices who played an advisory role, Justice Scalia, an "originalist" who believes constitutional meaning is fixed, said he initially feared that the exhibit would instead portray a flexible "living Constitution" but came away assuaged.

"It's a rare encounter with a constitutional interpretation that I can walk through without coming out with hard feelings," he said. "I had none at all."

Certainly there are warts aplenty: blacks are enslaved, Cherokees removed and Japanese-Americans interned - all despite the Constitution's pledge to "secure the blessings of liberty." Then again, framed by a twisting tower of law books sits Mr. Gideon's simple letter, which cranked its way tough the courts and brought Americans a fundamental new right.

The conservative columnist George Will called it a "jewel of America's civic life," while a liberal reviewer in The Journal of American History called it "already at its birth, one of the nation's greatest museums." Citing such unlikely convergence, Richard Stengel, the museum's president, argues, "The country is not nearly as polarized as the politicians are."

Richard DeVos, a founder of Amway and a major contributor to conservative causes, donated $10 million, and the exhibit hall bears the name of him and his wife, Helen. Mr. DeVos said the museum reflected the patriotism he felt in 1949 when he started his giant sales company. "Those were days when everybody said, 'God is dead,' free enterprise is dead, communism is the wave of the future,' " Mr. DeVos said. "We got very interested in protecting this Constitution and holding it high."

A leading liberal scholar of the Constitution, Kathleen Sullivan, is equally enthusiastic.

"It reminds us that the Constitution is an aspiration and an ideal, and we've executed it so imperfectly in our history that we have to come back and ask, 'Whose oppressions are we ignoring today?' " said Ms. Sullivan, a Stanford law professor.

Indeed, the call for current vigilance was among Mr. Specter's themes. "Every time you turn around, there's some abomination," he said. "And that's what Congress is supposed to do - to have oversight."

Known for having elbows as sharp as his mind, Mr. Specter won a fifth term last November in a perilously close election. A supporter of abortion rights, he then nearly lost his committee chairmanship after angering conservatives by questioning the ability of anti-abortion nominees to get confirmed to the federal bench.

The hearings on Judge Roberts to succeed Chief Justice Rehnquist may be a defining moment of Mr. Specter's career. He angered the right in 1987 by voting against Judge Robert H. Bork, the conservative whose nomination to the court was defeated, 58 to 42. He may have then angered liberals even more in 1991, with a withering cross-examination of Anita Hill, the witness who accused another nominee, Clarence Thomas, of sexual harassment. With Mr. Specter's support, Mr. Thomas squeaked by.

Walking through the museum, he stopped before a display on Marbury v. Madison, the 1803 case that established the court as the final word on constitutional authority. For all his anger at the court, Mr. Specter has vigorously defended that doctrine against some conservatives who want to eliminate court jurisdiction in certain areas, including school prayer and busing. As a young lawyer, Mr. Roberts wrote memorandums supporting such a court-stripping view.

When Justice Scalia was nominated in 1986, Mr. Specter asked him about the landmark Marbury case.

"He wouldn't answer a question about whether Marbury v. Madison was good law," Mr. Specter said. "I thought it was horrible."

"No comment," chuckled Justice Scalia, voluble on the subject of the museum but discreet on relations with members of Congress. "I leave them alone, and they generally leave me alone."

Polite evasions may work less well for Judge Roberts. "I'm looking to hear what his view of Congressional authority is," Mr. Specter said. He added, "He doesn't have to agree with me to be confirmed."

Mr. Specter said Judge Roberts described his judicial philosophy to him by choosing the words "modesty" and "stability."

"I like that, and I think that gives people reassurance on Roe v. Wade and woman's right to choose," Mr. Specter said.

An exhibit on Earl Warren, the chief justice who secured a unanimous decision ending legal segregation in 1954, prompted Mr. Specter again. "That's another thing I'm going to get into - I think that the court does not make a sufficient effort to get a consensus," he said. "Warren took over that court and got them to agree, unanimously, on the most vexing issue of the day. Perhaps of the century." With the 5-to-4 decisions that abound today, Mr. Specter said, "you can't figure out what the law is."

The end of his stroll took Mr. Specter, who was born in Kansas, to a lifelike bronze statue of another out-of-towner made good in local politics, Benjamin Franklin. "Carpetbagger like I am," he said. "Great man."

He admonished a schoolboy for rubbing Franklin's hands, then set off to prepare for the Roberts hearings and the next chapter of constitutional history.

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