Should we give up on the Constitution? Part III: Beyond constitutive rules

This post is the third in a series inspired by Mike Seidman's provocative op-ed in the New York Times, in which Seidman seems to be arguing for some form of disobedience to the Constitution.  In my previous post, I contended that some degree of constitutional law is necessary for functional democracy to exist.  To continue a metaphor I used in that post, democracy without constitutional law would be like trying to play a game of baseball while both teams continually argue about what the rules should be.  At least a basic level of constitutional law is necessary to literally constitute democracy -- to create it and define it so that we can participate in it without constantly fighting about what it means.

In the American experience, however -- and increasingly in constitutional systems around the globe -- constitutional law appears to extend beyond basic democratic ground rules.  Many of our most familiar constitutional provisions take the form, not of structural rules necessary to establish a working democratic government (such as rules governing how laws are made, enforced, and interpreted), but rather of "rights" that impose limits on what democratic government may do.  The First Amendment to the federal Constitution, for example, prohibits laws "respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press."  The Second Amendment prevents the government from "infring[ing]" "the right of the people to keep and bear Arms."  The Fifth and Fourteenth Amendments forbid government deprivations of "life, liberty, or property, without due process of law."

These and similar constitutional provisions don't appear to fit comfortably within the category of constitutive democratic rules.  Instead, they seem like restrictions on what our democratic government is allowed to do once it is constituted.  To further indulge the baseball metaphor, constitutional rights appear less like the constitutive rules that require three strikes for an out and four balls for a walk, and more like a hypothetical rule requiring pitchers to throw a fastball on a 3-2 count.  They seem to dictate how the game should be played, not what the game is in the first place.

Can constitutional rights against democracy be justified just as constitutional rules establishing democracy can?  And what about seemingly trivial constitutive rules -- rules that don't really seem necessary to establish democracy?  Seidman mentions one such rule in his essay:  the provision of Article I, section 7 requiring "Bills for raising Revenue" to "originate in the House of Representatives" rather than in the Senate.  It's difficult to imagine that such a rule is essential to the existence of a functioning democratic government; if it were, then many so-called "democracies" around the world that lack such a provision would not in fact be democracies at all.  (A rough analogy here might be the designated-hitter rule in Major League Baseball's American League.  Clearly that rule is not essential to the game of baseball -- otherwise the National League, which has no designated hitter, would be doing something other than playing baseball, as would the many Little League, high school, and college teams that do without a designated hitter.)

Seidman and many other critics of constitutional law -- including most prominently NYU law professor and philosopher Jeremy Waldron, who devoted an influential 1999 book to such a critique -- typically suggest that constitutional rights and other provisions that go beyond basic constitutive rules are illegitimate.  Once we have a basic working democracy in place, these critics contend, we ought to use the ordinary processes of that democracy -- lawmaking by the elected legislature, in whatever form our democracy happens to require -- to work out these other details for ourselves.  We ought to decide democratically, not constitutionally, what rights people have and what the details of our democratic system should look like.  In Seidman's words, we ought to "extricat[e] ourselves from constitutional bondage" and "settle our disagreements through mature and tolerant debate" rather than by obeisance to the "archaic, idiosyncratic and [sometimes] downright evil provisions" of a centuries-old document.

Can this critique of constitutional law be answered persuasively?  I think it can.  To see how, though, we first need to consider two popular but ultimately unpersuasive attempts to defend constitutional law.

Constitutional law and natural rights


People often defend constitutional rights -- provisions that impose substantive limits on what democratic government may do, like the First Amendment's prohibition of laws "abridging the freedom of speech" or the Fourteenth Amendment's requirement of "equal protection of the laws" -- on the ground that these provisions are necessary to protect preexisting "natural" rights from unjustified interference by the democratic majority.  The idea, which finds some support in the philosophy of the seventeenth- and eighteenth-century European Enlightenment and in the rhetoric of American founders like Thomas Jefferson, James Madison, and George Mason, is that government is instituted largely for the purpose of defending people's natural rights, and therefore it must be prohibited from doing things that vitiate that purpose by infringing those rights.

People may indeed have natural rights, and government may indeed have the function (at least in part) of protecting them.  But the aim of protecting natural rights is not, by itself, a persuasive justification of constitutional rights.  That goal cannot explain why we ought to prefer the constitutional Framers' opinions about rights over whatever conclusions we reach through ordinary democratic processes.

I wrote above that people "may" have natural rights.  I used this tentative construction because of course people reasonably disagree about natural rights -- about whether they exist, what they are if they do exist, and what they entail in any given set of circumstances.  As Supreme Court Justice James Iredell put it in 1789, "[t]he ideas of natural justice are regulated by no fixed standard:  the ablest and the purest men have differed upon the subject."  Some people believe, for example, that an individual has a natural right to liberty that immunizes her from any requirement to aid others -- to attempt to rescue a drowning man, for example, or even to spend a few dollars to buy a meal for a starving person when the money would not be missed -- unless the individual in question is responsible for the other person's peril.  Others disagree.  And in a society as culturally and ethnically diverse as most modern democracies, disagreement on these issues will be endemic and rampant.

Given the fact that people inevitably will disagree about natural rights, why then should we resolve those disagreements by deferring to the views of the constitutional Framers rather than working them out through regular democratic procedures?  Democratic procedures, after all, are the way our society normally settles its differences about important issues.  It would indeed seem, in Seidman's words, "bizarre" to settle them instead by reference to the opinions of late-eighteenth or mid-nineteenth-century constitutional Framers.

The answer to this quandary -- why we ought to defer to the Constitution's conclusions about rights rather than working things out for ourselves -- cannot be simply that "the Framers got it right" or "the Framers did a pretty good job of protecting natural rights, all things considered."  These questions -- whether the Framers did in fact get it right or do a pretty good job of protecting natural rights -- are precisely the questions that people will disagree about.  In order for law to possess what legal philosophers call "authority" -- to require obedience to its commands -- it must provide some strong reason to obey those commands even for those who disagree with them.  Otherwise people who disagree with what the law requires would lack any good reason to obey the law.  But the idea that the Constitution protects natural rights provides no such reason, because it cannot explain why someone who disagrees with what the Constitution says about rights nonetheless should obey it.  When someone who disagrees with a constitutional command asks why she should obey that command, the answer cannot be simply "because the Constitution is right and you are wrong."

So the goal of protecting natural rights, standing alone, cannot justify constitutional rights or other aspects of constitutional law.  People disagree on questions involving natural rights, and there is no obvious reason to prefer the Constitution's resolution of those disagreements over the resolutions reached by democratic procedures.

The Moral-Guidance approach

Many defenders of constitutional rights offer a more nuanced justification, however.  They acknowledge that people disagree, quite reasonably, about questions involving natural rights, but they claim that we are more likely to reach the correct answers to these questions by deferring to what the constitutional Framers decided than by using ordinary democratic processes to answer them.  They point to some special features of the constitutional process that they think make that process more reliable than ordinary democracy on questions of rights:  the exceptional wisdom of the Framers, perhaps, or (more commonly) the extraordinarily deliberative and participatory nature of the Framing process.  And these theorists say we ought to obey the Constitution, rather than work out questions of rights through democratic means, because these special features make the Constitution a more-reliable source of the truth about rights (whatever that truth may be) than ordinary democracy.

We might call this defense of constitutional rights a Moral-Guidance approach, because it rests on the notion that the Constitution can guide us toward the moral truth about rights.  Note that the Moral-Guidance defense provides a reason for people to obey the Constitution even when they disagree with it.  That reason is that the Constitution is more likely than the alternative -- regular democratic government -- to generate true or correct or good answers to questions about rights.  The rationale is analogous to the practice of deferring to experts' opinions in other areas of life -- to a patient relying on her doctor's medical advice, for example, or a client relying on his attorney's legal counsel.  We should obey the Constitution, the Moral-Guidance approach holds, because the Constitution, compared with ordinary democracy, is an expert on matters of rights.

The main problem with this Moral-Guidance approach is that its premise of relative moral expertise typically will be unconvincing.  Our Constitution provides an especially acute example of the difficulty.  Most of the Framers of the original Constitution and the Bill of Rights in the late 1800s practiced, endorsed, or at least tolerated slavery; virtually all of them thought women should have no place in public life.  These and other glaring moral gaffes make it unlikely that the Framers themselves, as a group, possessed some special moral expertise that is superior to our own.  Moreover, many capable adults were excluded altogether from participation in the ratification process:  not just women, slaves, and most other African-Americans, but also Indians and many non-propertied citizens.  The arbitrary exclusivity of the Framing undermines the claim that the process possessed special moral expertise by virtue of its exceptionally participatory and deliberative nature.

And even if we can somehow overlook the obvious moral failings of the Framers and the deficiencies of their process, the fact remains that the world they lived in looked radically different from our own.  Whatever the Framers' views on free speech, they could not have taken account of developments like television and the Internet; whatever their views on guns, they could not have predicted the advent of hand-held automatic weapons; whatever their beliefs about due process of law, they could not have anticipated the threat of international terrorism.  The list goes on and on.  Even if the Framers were moral experts in the abstract, it is hard to see why we should defer to their supposed expertise on contemporary moral questions that they simply could not have considered.

So the idea that the Framers were relative moral experts is undercut by the obvious moral gaffes they made, by the salient deficiencies in their process, and by their inability to apply their moral views to future conditions they could not predict.  Of course, we can imagine a constitution that mitigates these difficulties.  A constitution (or a constitutional provision) that has been enacted relatively recently would be less likely to feature clear moral errors, either in its substance or in the process of its enactment, because the moral sensibilities of its framers would be more likely to match our own.  And it would be more likely that the framers of such a constitution anticipated any given circumstance in which the law they created might apply to us today, shortly after the framing.

But constitutions typically are designed to last a long time; despite Thomas Jefferson's suggestion, replacing a constitution every 19 years probably is not the recipe for a stable democracy.  As a constitution grows older, the moral gap between its framers and those subject to it will grow ever larger, and the problem of moral obsolescence will emerge in ever more potent form.  In fact, the phenomenon of unanticipated conditions is likely to arise almost immediately, especially in our era of blindingly rapid technological change.  Imagine, say, a new Free Speech Clause, reconceived to meet the problems posed by television, smart phones, and the Internet.  How quickly would the original understandings behind the Clause become obsolete in our quickly evolving world?  Ten years?  Five?

The fact of moral obsolescence, then, is not unique to our 220-year-old Constitution; it probably is inevitable in any relatively stable constitutional system.  And that fact poses a problem for Moral-Guidance accounts of constitutional authority, because it undermines the persuasiveness of relative moral expertise as a reason to obey a constitution.  As a constitution grows older, the idea that its framers were comparative experts on the moral quandaries that face subsequent generations becomes less and less convincing.

To these difficulties, we can add one final shortcoming of Moral-Guidance accounts.  Remember that the premise of these accounts is that the Constitution is morally wiser than the alternative decisionmaking procedures, namely those of everyday democracy.  Note, however, that people who disagree in substance with what the Constitution requires therefore have reason to doubt this premise.  If I think the Constitution gets it wrong on the question, say, of whether individuals have a right to keep and bear arms, I necessarily must doubt the proposition that the Constitution is a moral expert on this question.  How could the Constitution be a moral expert on the question of gun rights if it answers that question (in my view) so blatantly incorrectly?  Indeed, how can the Constitution be a moral expert on anything if it gets the question of gun rights so badly wrong?  My disagreement with what the Constitution requires implies that the Constitution lacks moral expertise, on that question and perhaps on others.  And since, on a Moral-Guidance approach, the Constitution's authority rests on the premise of its superior moral expertise, my disagreement with it implies that there is no basis for the Constitution's authority.

In other words, on a Moral-Guidance account of the Constitution's authority, people who strongly disagree with the Constitution also will have reason to question the Constitution's authority over them.  This would make the Constitution weakest when it is needed most -- in cases where there is strong disagreement with its commands.  The Moral-Guidance approach thus leads ultimately to a risk of constitutional anarchy.

Two common answers to the question of the Constitution's authority -- of why we ought to obey the Constitution when we disagree with it -- therefore turn out to be deeply problematic.  The simple notion that we should obey the Constitution because it protects natural rights will not satisfy those who disagree with the Constitution's treatment of rights; it cannot provide a reason to obey the Framers' views of rights rather than our own.  The more nuanced idea that we should obey the Constitution because the Framing process possessed some special moral expertise is unpersuasive in light of the glaring more deficiencies of that process, the inability of the Framers to foresee modern moral issues, and the evidence of our own moral disagreement with what the Constitution sometimes tells us to do.

Fortunately there is a better account available -- a better answer to the question of why we ought to obey the Constitution, even (especially) when we disagree with it.  I will describe that account in my next post.