Let’s Not Give Up on the Constitution

We have here in Washington a constitutional law professor who would like to do away with the constitution. No, not that constitutional law professor; rather, it’s Professor Louis Michael Seidman of, sigh, Georgetown University’s law school. His New York Times op-ed from a few weeks ago asks us – as a nation – to consider “giving up” on the constitution. Why? To get things done. In order to really have a country ruled by We the People, Seidman says, we have to liberate ourselves from “the shackles of constitutional obligation”, since, well, that dusty old document penned by “a group of white propertied men who have been dead for two centuries” just really gets in the way sometimes.

The op-ed, which is breathtakingly one-sided, tells us not to be afraid of releasing ourselves from constitutional bondage because, well, we’ve already done it! As he points out, “the two main rival interpretive methods, ‘originalism’ (divining the framers’ intent) and ‘living constitutionalism’ (reinterpreting the text in light of modern demands), cannot be reconciled…. Whichever your philosophy, many of the results — by definition — must be wrong.” So, one side or the other is ignoring the constitution. And we know this is happening because “dissenting justices regularly, publicly and vociferously assert that their colleagues have ignored the Constitution — in landmark cases from Miranda v. Arizona to Roe v. Wade to Romer v. Evans to Bush v. Gore…”

It’s not just the men in robes, either – Presidents have ignored the constitution, too:

 In his Constitution Day speech in 1937, Franklin D. Roosevelt professed devotion to the document, but as a statement of aspirations rather than obligations. This reading no doubt contributed to his willingness to extend federal power beyond anything the framers imagined, and to threaten the Supreme Court when it stood in the way of his New Deal legislation.

All of this means, to Seidman, that hey, we’ll be fine if we get rid of the constitution. As we can see from FDR and Roe v. Wade, “Our sometimes flagrant disregard of the Constitution has not produced chaos or totalitarianism; on the contrary, it has helped us to grow and prosper.” There are two obvious problems here: a) how do we know that it was the flagrantly-ignoring-the-constitution and not the other side’s efforts to preserve the constitution (whichever side that is, of course – as though we can group originalists and revisionists in the same camp when it comes to their efforts to continue on using the constitution) that led to the growth and prosperity?, and b) er, it’s at least a teeny bit controversial to say that the New Deal and abortion rights equate to “growth and prosperity.”

Not done yet, though. Seidman thinks that, even though we shouldn’t bind ourselves to the whims of the dead propertied men, by golly, they did stumble on a few good ideas that we can hang onto:

Nor should we have a debate about, for instance, how long the president’s term should last or whether Congress should consist of two houses. Some matters are better left settled, even if not in exactly the way we favor. Nor, finally, should we have an all-powerful president free to do whatever he wants. Even without constitutional fealty, the president would still be checked by Congress and by the states. There is even something to be said for an elite body like the Supreme Court with the power to impose its views of political morality on the country.

Oh dear. So, some matters we should leave settled, but it’s not clear which ones or by what standard they should remain settled, once we’ve thrown out the document that established those settlements. Also, why on earth would the president be checked by the states? What precious few powers are left to the states are entirely protected by the constitution and nothing else; surely the federal government, unshackled from its hitherto constitutional obligations, will not restrain itself. (Seidman knows this, having just told us that FDR was happy to drastically increase federal power even with constitutional strictures.)

And goodness. There’s something to be said for an elite body that can “impose its views of political morality on the country”? I’m sorry – there is? And also, can we please locate that description of the Supreme Court in the constitution? (Remember, this is in the list of things Seidman would like to keep.)

But perhaps the clearest reason to keep a constitution can be found across the ocean, in Egypt’s ongoing struggle for self-rule. Samuel Tadros’ lengthy piece, “What is a Constitution, Anyway?” gives us an interesting glimpse into what kinds of fights a society can have without a crusty old document laying out the parameters. I’m happy to endure the admittedly annoying Beltline bickering over tax cuts rather than face struggles for the right to build a house of worship, which is a luxury afforded to us only because our constitution has guaranteed the latter to us for over 220 years. So for now, I’m going to cast my vote with the dead white men, or rather, with the rule of law and system of government they laid down.

11 Thoughts.

  1. I am not entirely sure, but I would describe one of Seidman’s basic points as follows: given the lack of fit between the circumstances of 1787 and today, why not treat the constitution as essentially a magna charta-like document, as opposed to law that imposes binding obligations?

    That approach is truer to our actual political practice. I doubt you’re really an originalist on press freedom. No one is anymore, except on the very impractical theoretical margins.

    If I understand it right, Seidman’s approach would avoid some of the distortions that a legalized constitution creates. In his interview with Megyn Kelly on Fox News, for example, he links his argument to a belief that constitutional adjudication as currently practiced tends to distort political argument by at times privileging certain narrow and ultimately irrelevant or unanswerable or non outcome-determinative questions.

    I am also not sure, but I take it that you have some sympathy with a closely related argument in the theoretical discourse, namely criticisms of the Supreme Court as abrogating itself final constitutional interpretive authority. But that’s just a guess.

    • The Magna Charta purports to be “law that imposes binding obligations,” so it is either that or a fraud.

      More broadly, your argument seems to boil down to “we don’t actually obey the constitution in every case without exception, so why not repudiate it?” But that logic actually abolishes not only the written constitution, but all law. There is no law that is always followed in every case. Shall we therefore repudiate all laws? If not, why is the Constitution different?

      Your argument that a written constitution “distorts” democratic discourse begs the question. Constitutional boundaries on what is legitimate and permitted within the democratic system are only “distortions” if it’s wrong to treat the Constitution as binding – so you must assume your position is true in order to make your argument.

      • I am assuming (a) that part of self government is being able ask whether our written constitution is doing a good job at the things a constitution should be doing, and (b) that the standards for that evaluation are not exhausted by the question of whether the written Constitution should be treated as binding in the same manner as ordinary law.

      • If it’s not binding, what on earth does it mean to call it a constitution? How can it constitute the polity?

      • Hi Chuck,
        When you say that part of self-governing is “being able to ask whether our written constitution is doing a good job at the things a constitution should be doing,” what do you understand as “the things a constitution should be doing?”

        Also, if when we ask that question the answer turns out to be “no,” does the amendment process provide sufficient redress?

      • Karen – good questions. I would probably say that a constitution has to settle some basic institutional questions, express basic aspirations of the people who live under the constitution (especially those aspirations that result from historical experience), and set up rules for representation and dialogue that ensure that relevant or affected interests are heard in the deliberative process. The US constitution is probably pretty good at the first. It’s probably pretty good at the second where there is serious national crisis or trauma, but maybe not so good in other cases. It’s not that great at the last for a variety of well known reasons.

        I don’t think the amendment process is sufficient. As a descriptive matter, it’s an important part of constitutional change over time, but it’s probably not really the main driver of that change. We should take a cue from that rather than resist it.

        Greg – I think you can see why I resist your essentially positivistic account of the constitution, which is as follows if I understand it right: it is only a constitution if it consists in (and is exhausted by) binding commands that form or constitute the community of those who are to obey the commands.

      • I didn’t say it had to be “exhausted by” binding “commands,” I said it had to be binding. Not sure what may be at stake in all those other words you inserted, but I don’t think they were implied by anything I said. Nor do I think the idea that the constitution is binding requires “positivism.”

        As for “form or constitute the community of those who are to obey the commands” – well, once again I’ll leave aside “commands” with whatever baggage that might have and focus on the part I did say, which is “constitute.” Here I need to clarify my position. I said it should constitute the “polity” but that is not the same as “community.” The constitution cannot constitute the community because it is the community that adopts the constitution, so that would be circular. What the constitution constitutes is the government. “Polity” was an unclear choice of words.

        And no, in fact I do not see from anything you’ve said why you don’t accept my position. In fact I think my position is implicit in your statement that a constitution must accomplish certain goals that involve requiring certain acts and forbidding others – for “settling some basic institutional questions” and “setting up rules for representation and dialogue” do in fact involve requiring and forbidding. How will the constitution “settle” anything or create any “rules” if it is not binding?

        Final thought: if it is not only legitimate but even necessary for the constitution to make “rules” restricting permissible “discourse” – which I agree it is – then where does that leave your earlier contention that the constitution “distorts political argument?”

    • Greg – what do you mean by binding? I don’t think we agree on that, and it matters a lot to your argument (it’s the basis on which you call Seidman’s distinction between institutional rules and constitutional aspirations “pathetic” for example).

      • By binding I mean obligatory.

        And I didn’t say the distinction is pathetic, I said his “attempt to rescue some binding commitments from the shipwreck of the Constitution” was pathetic.

  2. There is really no such thing as a polity without a binding constitution. England has a constitution; it’s just unwritten. Seidman’s pathetic attempt to rescue some binding commitments from the shipwreck of the Constitution only confirms this. There can be no account of the polity without presupposing some binding rules; otherwise you have no polity.

    C.S. Lewis once commented that the existentialists had fallen into a very simplistic error; they thought that the existence of cases where moral duty is unclear proves there is no morality, when in fact (quoting from memory) “it is precisely the laws of morality that create problems of casuistry, just as it is the laws of chess that create chess problems.” So here; it is because we need a binding constitution that we argue so much about how it applies.

    The only question really worth asking is whether we should have a written constitution. And the problem with that is that Americans don’t have anything to fall back on; we are not a people strongly bound by tradition as they are. Abolishing the Constitution would simply abolish law; it would require nothing less than a new national founding moment. Political scientist Morris Fiorina once proposed Fiorina’s First Rule of Wingwalking: “don’t let go until you have something else to hold on to.”

    It’s also relevant that disputes over the right way to interpret the Constitution are nothing new. A friend of mine in grad school wrote his dissertation on the history of conflict over constitutional interpretation in the U.S. And conflict over how to interpret the Constitution is not even limited to nations with written constitutions; they fight about the constitution all the time in England, too.

  3. Pingback: Hang Together

Leave a Reply