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Should We Discard the Constitution?

Bruce Davidson/Magnum Photos
National Guard soldiers escorting Freedom Riders as they rode from Montgomery, Alabama, to Jackson, Mississippi, to protest the South’s nonenforcement of the Supreme Court’s rulings declaring the segregation of buses to be unconstitutional, 1961

Does the US Constitution do more harm than good? Last year, the most important social welfare legislation since the New Deal, the Affordable Care Act, was nearly invalidated by the Supreme Court on grounds that Congress does not have the power to require people who can afford to purchase health insurance to do so or pay a tax. This term, the Court may strike down both the University of Texas’s affirmative action program and a Voting Rights Act provision that has had a central part in curtailing racially discriminatory voting practices in the South. Three years ago, in Citizens United v. Federal Election Commission, the Court ruled that the Constitution bans limits on corporate spending on elections. And who can forget Bush v. Gore, in which five conservative members of the Court invoked the Constitution to stop a Florida recount and effectively installed George W. Bush as president?

These and other decisions, coupled with the experience of several decades under a Supreme Court controlled by conservative justices, have led many liberal legal scholars to question the value of constitutional judicial review in our democratic system. Harvard Law School’s Mark Tushnet and former Stanford Law Dean Larry Kramer have argued that we should “take the constitution away from the courts” and instead empower “the people” to make constitutional decisions—a curious prescription in light of the fact that the Constitution was designed as much to check “the people” as to limit government.

Others, such as NYU Law School’s Barry Friedman, have argued that the Court really only follows the election returns, and therefore does not in fact serve to protect liberty against intolerant majorities. And Harvard Law School Professor Michael Klarman has maintained that when courts do get out ahead of the main currents of opinion, as in Roe v. Wade, they often set off a conservative backlash that does more harm than good for the right for which protection is sought.

Louis Michael Seidman, one of the country’s leading constitutional scholars and my colleague at Georgetown Law, seeks to raise the stakes. In his latest book, On Constitutional Disobedience, he argues that we should give up on the Constitution altogether. He maintains that we need to question not just individual decisions of the conservative Supreme Court, and not just the Court’s power to have the last word on constitutional questions, but the entire enterprise of constitutionalism. He contends that little good and much evil flows from our perceived obligation to be bound by the Constitution. It has rarely protected civil liberties. It distracts us from the “merits” of a given law or action, since we argue instead about whether it accords with what a small and exclusive group of men thought more than two centuries ago. And it is responsible for today’s overheated partisan rhetoric, because constitutional arguments cast opponents as traitors to the political community. We would be better off, he concludes, without a Constitution.

Seidman concedes that “a proposal that we systematically ignore the Constitution will strike many as stupid, evil, dangerous, or all three.” In the end, I find his argument unconvincing, but certainly not stupid, evil, or dangerous. Its chief benefit, however, is not, as Seidman hopes, to free us from the chains of constitutional obligation, but to provoke us to defend more adequately why the Constitution should bind us in the first place.

Seidman put his case against constitutionalism most pithily in a New York Times Op-Ed that he recently published in conjunction with his new book. There, he asked:

Imagine that after careful study a government official—say, the president or one of the party leaders in Congress—reaches a considered judgment that a particular course of action is best for the country. Suddenly, someone bursts into the room with new information: 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 might have disagreed with this course of action. Is it even remotely rational that the official should change his or her mind because of this divination?1

The book, itself quite succinct at less than 150 pages, masterfully develops the point. The Constitution’s preamble notwithstanding, Seidman explains, “We the People” did not consent to be bound by the document. Only a small minority of the population at the time of the framing could vote, and of course none of them are still around. The fact that “they” chose to assert authority over “us” hundreds of years later hardly justifies our following their dictates.

Some argue that because the Constitution may be amended, and we have generally not done so, we have effectively consented to be bound by it. But as Seidman points out, the American Constitution is the most difficult to amend in the world. Even if a solid majority of the American public and our representatives in Congress agree that the Constitution should be changed, the amendment will often be unsuccessful, since it requires an affirmative vote of two thirds of both houses of Congress, and approval of three quarters of the states. In any event, the argument for constitutional obligation based on the amendment clause is circular, because it begs the question of why we should be bound by the amendment clause in the first place.

Others argue that we must abide by the Constitution because the framers were wise, and took the long view in articulating fundamental principles for good government. But historians have shown that the Constitution was driven as much by short-term, self- interested economic concerns as by more lofty ambitions. And even the most percipient framers could not possibly have foreseen the world in which we now live, with nuclear weapons, smart phones, international terrorism, the Internet, a thoroughly interconnected world economy, and global warming. If we agree today with a judgment made by the framers, Seidman maintains, we should adopt it because it is in fact sound today, on its merits—and not because some long-dead men once sought to impose that judgment on us.

Still others defend the Constitution as a form of precommitment. Like Ulysses instructing his sailors to tie him to the mast as they pass the Sirens, we often choose in advance certain courses of action knowing that in the short term we will be tempted to act against our best long-term interest. A marriage, a diet, or enrollment in the military or a university all involve such choices. We anticipate that we might go astray and promise to follow a course prescribed beforehand. The Constitution similarly precommits us as a nation to respect certain rights and follow certain procedures, even when a majority of the populace would rather not.

But, Seidman argues, the idea of precommitment poses many difficulties. How can we know, for example, that our judgment at one time, when we make the promise, is more valid than our judgment later on, when we are contemplating breaking it? Times change, and commitments that made sense yesterday may make no sense today—as, for example, the divorce rate shows. When, as is the case with the Constitution, the precommitment was made by men with whom we have no relation and who had little notion of the challenges we face, why should we adhere to their precommitment?

With these questions, Seidman effectively shows that the argument for constitutional obligation is far less self-evident than many assume. He compels the constitutionalists among us to come up with better answers.

Seidman’s arguments are far less convincing, however, when he turns from theory to practice. He contends, for example, that we have already departed from constitutional obligation, because violations of the Constitution are widespread. To support this assertion, he would have to show either that constitutional violations are so prevalent that the obligations are effectively a sham, or that violations are expressly endorsed as permissible. He shows nothing of the kind.

He observes, for example, that several legal doctrines limit judicial remedies where the Constitution may have been violated. Courts will not award money damages where the defendant is immune from suit. They will also dismiss legal challenges where the injured party lacks “standing to sue,” where the issue is a “political question” not fit for judicial resolution, or where the case cannot be adjudicated without revealing “state secrets.” But these doctrines do not endorse constitutional violations; they merely recognize constitutional limits on the remedies courts can prescribe. Public officials remain obligated to obey the Constitution in all such circumstances.

Even less convincingly, Seidman cites dissenting justices who occasionally accuse their brethren of misinterpreting the Constitution. But the fact that judges disagree about what the Constitution requires does not imply that it is acceptable to violate the Constitution. On the contrary, the intensity of such disagreements is driven by a sense of constitutional obligation.

Seidman devotes special attention to Justice Robert Jackson, who he claims openly violated the Constitution in at least three historic cases. If Seidman could show that Jackson, one of the most respected justices in the Court’s history, advocated and practiced constitutional disobedience, it might well support his cause. But here, too, the evidence comes up short. Seidman first cites Jackson’s dissent in Korematsu v. United States, the Supreme Court’s infamous World War II decision upholding the internment of a Japanese-American on the basis of his race. Jackson argued that the Court did not have jurisdiction, but he did not thereby endorse a violation of the Constitution; indeed, he dissented precisely out of concern that taking jurisdiction in such cases might lead to the validation of constitutionally dubious practices.

Next, Seidman cites Jackson’s concurring opinion in a 1952 decision declaring unconstitutional President Truman’s seizure of American steel mills during the Korean War. There, Jackson wrote, in an opinion that has influenced separation-of-powers jurisprudence ever since, that because the Constitution does not set forth explicit limits on executive authority, those limits will often be affected by congressional action, and that where Congress has not acted, the legality of the president’s actions may turn on “the imperatives of events and contemporary imponderables rather than on abstract theories of law.” But to say that when both Congress and the Constitution impose no express limits on presidential action, the validity of that action will be determined pragmatically, hardly endorses constitutional disobedience; it simply points up the difficulty of deciding constitutional questions without clear textual guidance.

Finally, Seidman maintains that Jackson voted to declare segregation unconstitutional in Brown v. Board of Education for “political” reasons, even though he did not believe that the Fourteenth Amendment prohibited segregation. Seidman rests this remarkable assertion on a cryptic excerpt from a historian’s paraphrase and a single sentence from an unpublished memorandum Jackson drafted before the case was decided. The paraphrase, reconstructed from even more cryptic notes of two other justices at the Court’s internal conference discussing Brown, claims that Jackson said, “This is a political question. To me personally, this is not a problem…. As a political decision, I can go along with it but with a protest that it is political.” But even assuming this thirdhand account is accurate, its terse text raises as many questions as it answers. It does not even say what aspect of the case Jackson was referring to—the merits of the decision, the choice of reasoning, or the decision to order reargument on the sensitive question of the remedy for segregation.

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    Louis Michael Seidman, “Let’s Give Up on the Constitution,” The New York Times, December 30, 2012. 

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