Friday, January 4, 2013

Should we give up on the Constitution?

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.

But this 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.

The problem 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 democracy.

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.


  1. The lack of any judicial oversight over redistricting might explain the increasing polarization in the House, but it doesn't explain the highly polarized Senate. The Senate has become so polarized that not only are the newly elected members tend to the extremes (with some exceptions), but members who have previously been thought of as moderate have been pulled into their respective corners. Harry Reid is a prime example. When he was elected to lead the Democrats (then in the minority), many liberal advocacy groups lamented the choice, because Reid was known as a moderate pro-life, pro-Balanced Budget Amendment Democrat. Since 2006, Reid's record moved decidedly to the left. Arlen Specter, when he was a Republican chairman of the Senate Judiciary Committee is another example. A person wh helped defeat the Bork nomination, voted against Daniel Manion, and against Jeff Sessions, unfailingly voted for every single one of Bush's nominations. So something else is going on besides redistricting.

    1. drgrishka, you have the (dubious?) honor of being the first to comment on MODblog. I'm not sure congratulations are in order, but thanks certainly are. So, thank you!

      To your point: I am emphatically not a political scientist, so I'm not well equipped to assess the causes of political polarization with any real sophistication. You are of course correct that, because U.S. senatorial elections are not subject to districting (they proceed on a statewide basis), partisan gerrymandering can't explain any political polarization in the Senate to the same extent it might explain that phenomenon in the House.

      As a lay observer, however, it's not obvious to me that the Senate is nearly as polarized as the House. (Witness the recent budget deal, which was forged in the Senate when the House couldn't agree to anything.) Of your two examples of moves to the extreme in the Senate, Reid seems a stronger example than Specter (who after all defected from the Republican party during his final term in office). Of course, if the Senate is in fact less partisan than the House, there may be other factors at work besides the absence of gerrymandering, including perhaps the longer terms in the Senate (six vs. two years), which seem more conducive to the forging of personal alliances across the aisle. (Something like that seems to be what the Framers had in mind when they created the Senate.)

      Many thanks for the inaugural comment!