September 16, 2005
Friday

Happy Constitution Week. Sept. 17 was the 218th birthday of the longest-running constitution in world history, and Constitution Week runs through Sept. 23. To help us celebrate, we called up author and Duquesne University law professor Ken Gormley, who specializes in constitutional law, the First Amendment and the American presidency. Gormley, who wrote "Archibald Cox: Conscience of a Nation" in 1998, is currently working on a major book about the constitutional and legal highlights -- and lowlights -- of the Clinton presidency.

Q: How is our Constitution holding up at age 218?

A: It really is holding up remarkably well when you stop and think about what in the past five or six years we've been through as a country: the impeachment trial of a president; a contested presidential election; an attack on U.S. soil on 9/11; a war in foreign territory; the death of our chief justice; the flood and destruction of a major U.S. city, which we would never have imagined. And despite all that, we're all still standing and working together and resolving legal issues that flow from all of these things through the three branches of our government.

Q: Sen. Robert Byrd, a big fan of the Constitution, and the inventor of Constitution Week, has said that it defines Americans. Do you have any sense of what he means by that?

A: I suppose that he is primarily referring to the Bill of Rights, because there are lots of provisions in the Constitution that don't apply to many of us unless we are the president or a United States senator like him. Having a written constitution, of course, was a revolutionary idea at the time. Great Britain's constitution was unwritten. France's was really just a statement of general purpose. Having this Constitution and adding the Bill of Rights to spell out the rights and liberties we all have was rather a dramatic thing itself. When you look at those rights, they talk about equality and equal protection and due process under the law, and really it's all of the best virtues that we consider exist in a just society, and that's what we hope to be.

Q: Do you think Supreme Court nominee John Roberts is likely to change the court in any substantial way?

A: Well, we have to see who gets appointed along with him. That's a bigger question. But I think he has the ability to have a great influence on the Supreme Court. He's a remarkably talented, gifted individual, and he seems to have the stuff of a person who is going to be really good at building consensus and respecting the court as an institution. That you can call "conservative" in the old-fashioned sense. You can also call that a "judge's judge," someone who is looked upon highly by others in the profession because he or she is able to put the institution of the courts first. I think he is going to be in that mold.
Roberts is really young, so he is going to have the ability to nurture people along with him as he goes. People forget this, but by definition, a chief justice tends to moderate himself. They have to do that in order to bring harmony to the body, in order to get opinions through when you have a lot of justices working together. I think the John Roberts we're going to see as chief justice is actually going to be even more of a centrist than the John Roberts we might have seen as an associate justice, and he is going to be really good at pulling the court together.

Q: If any of the Framers were to return to Earth, would they be appalled or pleased by the growth in size and power of the executive branch, especially when it comes to war-making powers?

A: I don't think that they'd necessarily be surprised that the president was a very powerful figure in our system, because I think that is what they envisioned. And I certainly don't think they would think the Supreme Court would be more powerful than the president. But probably the greatest surprise would be the president's power in relationship to Congress, because most likely they would have envisioned that Congress would have ended up being the most powerful branch. The Framers were certainly leery of returning to an aristocracy, which is exactly what they had fought a revolution to get rid of. So I think they would have been wary of presidents gathering up too much power for themselves, certainly at the expenses of other branches of government.

Q: What should we average, non-law professor citizens know -- at a minimum -- about the Constitution's role and its importance to preserving our freedoms?

A: One of the most important things that I saw in law practice and that you see even in these debates over the Supreme Court confirmation processes is that you can't use the Constitution as a political ball to kick around and use for political purposes. It applies to everyone, and everyone gets to use it in the same way, whether you are poor or are the best lawyer in the state. You have to remember that this Constitution really is designed for everyone. In the abstract, it is easy to try to take it away from some people, but when you apply it to real cases that touch your life, all of a sudden you can see the great importance of why we have it.

Another thing -- the Constitution is not something that is meant to be left to a thumbs-up or thumbs-down vote of a group of Americans at one time. In fact, it's designed to protect us from ourselves, primarily. Just because a majority of people at one time may say blacks shouldn't go to school with whites, that doesn't mean that is what the Constitution tells us.

The most important thing, I guess, is that the Constitution is supposed to last for a long period. It's lasted for 218 years and to get us to another 218 years, it has to be treated with respect. We can not allow ourselves to start taking USAToday polls on every issue and think that should trump the Constitution.

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