Sandra Day O'Connor
Associate Justice, Supreme Court of the United States
July 4, 2003
National Constitution Center
This is an absolutely wonderful occasion. Today, we celebrate both our nation's birthday, and also the opening of the National Constitution Center in the great city of Philadelphia. The Constitution Center and Independence Hall, together with the Liberty Bell, form a place that every American should visit. It will contribute each and every day to the reinforcement of the basic principles that bind us together as a nation and a people.
On May 25, 1787, here in Philadelphia, a quorum of delegates from seven states met in answer to the call from the Annapolis Convention to draft what became the Constitution of the United States. The delegates unanimously selected George Washington as president of the convention. Eventually, 55 participants assembled here from 12 of the 13 states then in existence. They met throughout the sweltering summer, behind closed doors, to offer, consider, and debate the provisions of a new national charter. Their efforts culminated on September 17, 1787, when all 12 state delegations voted approval of the draft of our Constitution.
It seems natural for Supreme Court Justices to be vitally interested in the document we spend so many of our waking hours thinking and arguing about. But it is perhaps not so natural, in the 21st century, for most other Americans to spend much time thinking about or discussing our Constitution. Although over 200 years ago most Americans hotly debated the merits of the proposed Constitution, recent polls indicate that today almost half of our citizens do not know that there are three branches of government.1 Thirty-five percent believe the Constitution establishes English as our national language.2
Knowledge about the ideas embodied in the Constitution and the ways in which it shapes our lives is not passed down from generation to generation through the gene pool; it must be learned anew by each generation. It is not enough simply to read or memorize the Constitution. Rather, we should try to understand the ideas that gave it life and that give it strength still today. Alexander Hamilton, one of the Framers, wrote in the first of The Federalist Papers in support of ratification of the Constitution that it was "reserved to the people of this country . . . to decide . . . whether [we] are . . . capable . . . of establishing good government from reflection and choice, or whether [we] are forever destined to depend for [our] political constitutions on accident and force."3 Our citizens did reflect and make that choice, but we look around the world today and see that a great many other people have been dependent instead on "accident and force."
Much as it sometimes seems otherwise, the Constitution is interpreted first and last by people other than judges. The judicial branch is only an intermediate step in the continuing process of making our Constitution work.
The power of judicial review has been said by some to be the "cornerstone" of our constitutional law.4 Certainly an independent judiciary as provided by the Constitution has assured that the governed as well as the government are bound by the Rule of Law. But a federal court is almost never the first to ponder the constitutional questions that come before it.
This means that, in the first instance, it is up to state and federal legislators and executives to decide that the laws they enact, or the actions they are about to take, are constitutional. This decision is as much their responsibility as it is the Court's. Thus, the Constitution requires all officials - legislative and executive, federal and state - to swear, upon taking office, that they will "support this Constitution."5 Provisions of the Constitution are addressed directly to legislators and executive officials, who interpret the Constitution every day in making and applying the law.
Although the Supreme Court almost never has the first word in interpreting the Constitution, many believe that it usually has the last. The Supreme Court's interpretation of the Constitution is considered binding on the states and on the other branches of the federal government. But when it comes to putting the interpretation of the Constitution into practice, ultimately the Court must rely on the other branches of government.
There is a story, almost certainly apocryphal, that when the great Chief Justice John Marshall decided a very controversial case against the state of Georgia, President Andrew Jackson commented: "John Marshall has made his decision, now let him enforce it."6 The story reminds us of the remarkable nature of something that we Americans usually take for granted: the willingness of the other branches of government to enforce the Court's rulings, even those with which they disagree.
Certainly, one of the most dramatic examples of the executive branch enforcing a Supreme Court decision occurred on September 24, 1957, when President Eisenhower ordered federal troops to Little Rock, Arkansas, to ensure that, pursuant to the Court's decision in Brown v. Board of Education striking down racially segregated public schools, nine black children would enter Little Rock's Central High School. On that day, President Eisenhower addressed the nation and explained that his duty to uphold the ruling of the Supreme Court was "inescapable."7
But far more remarkable and inspiring are the many more times state or federal officials conform their operations to Court decisions with little delay or dispute.
Such examples illustrate this country's devotion to the Rule of Law - a devotion without which the protection of liberty would be impossible.
Because of the Court's crucial role as the protector of individual rights against majority rule, at times the Court's decisions will prevail over the strong disagreement of a great many Americans. If, however, one looks at the history of the Court, the country and the Constitution over a very long period, the relationship appears to be more of a dialogue than a series of commands. Some Supreme Court decisions, controversial when they were issued, later have been strongly affirmed by the majority of Americans. Brown v. Board of Education is one of those decisions. Today, the fundamental injustice of racially segregated public schools is beyond mainstream political debate. No one who rejects the basic premise of Brown could run for an elected office in this country and hope to win.
Some might find it a bit disconcerting to consider that the responsibility for protecting our Constitution rests not just on judges but on a host of others as well. The responsibility is shared by state and federal legislators considering the constitutionality of proposed laws; by litigants who must marshal the time, money, and hope to take cases to court; by political officeholders (including the President himself)8 who must see that the Court's rulings are put into practice; and by citizens, who ultimately must determine the Nation's response to each major issue. I find the system quite comforting. By spreading the responsibility to uphold the Constitution among so many, the Framers enlisted a legion of defenders for their new charter.
President Franklin Roosevelt called the Constitution a "layman's document,"9 and certainly it was not intended solely, or even primarily, for judges. While James Madison hoped that the courts would be an "impenetrable bulwark" against assumptions of power by the other branches, he also believed that state legislatures would be "sure guardians of the people's liberty."10
And when Madison argued for a Bill of Rights, he knew that the strength of these freedoms would depend on how firmly they stood in the hearts of citizens. He hoped that whatever the majority might want at any given moment, they would want to uphold the Constitution more. We honor the Constitution and its Framers when we run for legislative or executive office; write a letter to the President, our governor or our legislator; take a constitutional case to court; or teach our children the meaning of the document - and when we argue among our friends and neighbors over the application of constitutional commands to modern life.
Our Constitution is not - and could never be - defended only by a group of judges. One of our greatest judges, Learned Hand, understood this very well. He explained: "Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can save it . . . ."11
But our understanding today must go beyond the recognition that "liberty lies in [our] hearts" to the further recognition that only citizens with knowledge about the content and meaning of our constitutional guarantees of liberty are likely to cherish those concepts. As James Madison reminded us long ago, "the advancement and diffusion of knowledge" is "the only Guardian of true liberty."12 That is why I am so happy to see the National Constitution Center open its doors and why I am so deeply honored to receive the Liberty Medal today.
1 National Constitution Center, NCC News and Events: National Poll (1999), available at http://www.constitutioncenter.org/sections/news/8b4.asp.
3 THE FEDERALIST NO. 1 (Hamilton), at 33 (Clinton Rossiter ed., 1961).
4 See, e.g., Harold H. Burton, The Cornerstone of Constitutional Law: The Extraordinary Case of Marbury v. Madison, 36 A.B.A. J. 805 (1950).
5 U.S. CONST., Art. VI, cl. 3.
6 Leonard Baker, JOHN MARSHALL: A LIFE IN LAW 745 (1974).
7 Chester J. Pach, Jr. & Elmo Richardson, THE PRESIDENCY OF DWIGHT D. EISENHOWER 153 (1991).
8 President Eisenhower, for instance, had to employ the National Guard to implement Brown v. Board of Education, 347 U.S. 483 (1954). See Walter F. Murphy et al., AMERICAN CONSTITUTIONAL INTERPRETATION 776 (1986).
9 Franklin D. Roosevelt, Address on Constitution Day (1937), in THE PUBLIC PAPERS AND ADDRESSES OF FRANKLIN D. ROOSEVELT 359 (1941).
10 James Madison, House of Representatives Debates--June 8, 1789, in Bernard Schwartz, II THE BILL OF RIGHTS: A DOCUMENTARY HISTORY 1031-1032 (1971).
11 Learned Hand, THE SPIRIT OF LIBERTY 190 (1960).
12 3 LETTERS AND OTHER WRITINGS OF JAMES MADISON 492 (J.P. Lippincott & Co. 1865 (reprinting letter to George Thomson (June 30, 1825)).