Mike Seidman, a law professor at Georgetown, recently published a thought-provoking op-ed in the New York Times. Seidman argues in essence that we ought to ignore the Constitution, though he is notably vague about what should take its place. See also some letters to the editor in response to Seidman's piece.
Seidman is right to raise the question of whether we ought to obey the
Constitution (which many legal theorists refer to as the question of the
Constitution's "authority"). I asked that question myself in a book I
published in 2011, called "A Matter of Dispute: Morality, Democracy,
and Law." (You can see a description of the book, and even purchase it
if you like, here or in the other usual places.) In the book, I offer a conditionally
affirmative answer to the question of the Constitution's authority: I
think we ought to obey it, though not always or at all costs.
My arguments in the book, as you might imagine, are pretty involved, but
let me make a few comments in response to Seidman's piece before I get
back to grading (sigh).
Seidman's main beef seems to be, not
with the Constitution itself, but with two contemporary pathologies in
our interpretation and invocation of the Constitution. One pathology is
a loose family of methods for interpreting the Constitution known as
"originalism" -- the search for some original intent or understanding of
the people who framed the Constitution or of the public alive at the
time of the framing. Why, Seidman asks, should we try to resolve
pressing current problems by reference to the views of "a group of white
propertied men who have been dead for two centuries, knew nothing of
our present situation, acted illegally under existing law and thought it
was fine to own slaves"?
And indeed, the sort of mindless
deference to the views of the Framers advocated by many "originalists"
is difficult, perhaps impossible, to defend. There are good reasons to
pay attention to what the Framers did -- more on this point in a moment
-- but the idea that the Framers were really smart people or possessed
superior moral wisdom is not among them. Seidman is right to reject a
blind adherence to original understanding or intent. But this doesn't
imply rejecting the Constitution itself; it implies only the rejection
of a particularly hidebound way of interpreting the Constitution.
The other, related pathology that I think bothers Seidman is the
phenomenon of Constitution-worship: the quasi-religious treatment of
the Constitution as an end in itself, not a means to other ends, and the
resulting use of the Constitution as a sort of trump card to stifle
substantive political discussion. I often perceive this phenomenon
myself in contemporary American political and popular discourse, and
like Seidman I'm disturbed by it. The Framers were not gods and the
Constitution is not holy writ. It is instead a functional (and
sometimes dysfunctional) charter of pragmatic democratic government.
How well it works to achieve its ends -- the establishment of a fair,
effective, participatory system of democracy -- ultimately is a matter
for us, the living citizens of that democracy, to judge for ourselves.
We owe no indefeasible allegiance to the Constitution.
doesn't mean, as Seidman suggests, that we ought to jettison the
Constitution when it produces results that are inconvenient, even
seemingly unjust or ridiculous. Law, after all, often produces outcomes
with which we disagree; that's not an excuse to abandon law. Rejecting
Constitution-worship implies only that we should not be afraid to
question the Constitution's authority -- to ask whether our
constitutional system is, on the whole, doing a reasonably good job at
its function, which is maintaining the kind of democratic system we
want. We ought to ask ourselves, as citizens, whether the Constitution
is worthy of our obedience. But asking this question does not
necessitate a negative answer.
And in fact I think there are
reasons to give an affirmative answer to the question of whether the
Constitution deserves our obedience. The main one is this: There are
some questions about democracy that we cannot trust ordinary democracy
itself to resolve. And the Constitution does, not a perfect job, but a
reasonably good job of resolving them.
Consider the recent
phenomenon of recurring games of fiscal "chicken" in Washington: the
high-stakes partisan fights over debt ceilings, "fiscal cliffs," and the
like that seem to arise now every few months or so. These battles are
symptomatic of a larger problem of vehement partisanship in Washington.
And that problem is not primarily the fault of the Constitution, as
Seidman suggests when he blames that document for our "dysfunctional
political system." Instead the chief culprit is better described as a
*lack* of constitutional law, or rather the failure of the current
Supreme Court to enforce the constitutional requirements of equal
protection and a republican form of government in the context of
partisan gerrymandering. The Court has refused to hold state
legislatures accountable for redistricting decisions that intentionally
create many "safe" Republican or Democratic legislative districts,
districts that tend to elect extremists because there is no pressure to
move toward the center in the general election. The result has been a
constantly increasing polarization in our politics.
of partisan gerrymandering illustrates (by omission) perhaps the
principal function of constitutional law in our system. We can't trust
elected politicians to maintain fairly participatory systems of
elections -- precisely because they have so much to gain when elections
are unfairly stacked in their favor. Only a relatively impartial system
of constitutional law -- principles laid down many years in the past,
by Framers who could not predict precisely who would benefit from them
in the future, and interpreted by a relatively apolitical Supreme Court
-- can be trusted to set and enforce the ground rules of a fair
This is not to say that our constitutional system
always functions in this relatively impartial way. My own view is that
it has worked reasonably well over the years, usually correcting itself
when it gets too far out of whack, very occasionally needing an external
corrective (e.g., the Civil War) when it is too broken to repair
itself. I doubt we are at such a point now; I tend to think that our
main constitutional problem at the moment is the membership of the
Supreme Court, not the underlying constitutional structure itself. But I
might be wrong about this; the point is certainly debatable.
Seidman's piece is valuable in reminding us that there is nothing wrong
with having an honest debate about the value of the Constitution. There
may in fact be something very wrong about failing to do so; this is the
danger of the kind of Constitution-worship that Seidman rightly abhors.
But while one possible result of such a debate is trashing the
Constitution altogether, that is hardly a foregone conclusion. Let's
not throw out the baby with the bathwater.