In a recent editorial in the New York Times, Louis Michael Seidman, a professor of constitutional law at Georgetown Law School, argues that our political system is broken because of “our insistence on obedience to the Constitution, with all its archaic, idiosyncratic and downright evil provisions.” Dr. Seidman asks why anyone should care about procedural provisions of our Constitution, or indeed whether it is “even remotely rational” that officials should change their conduct simply because what “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.” Dismissing such “irrationality,” Dr. Seidman would have us acknowledge “what should be obvious—that much constitutional language is broad enough to encompass an almost infinitely wide range of positions” and so extricate ourselves “from constitutional bondage so that we can give real freedom a chance.”
This is not to say, of course, that Dr. Seidman would have us simply allow those in power to govern as they see fit. Some constitutional commands are worth obeying—he mentions freedom of speech and religion (though one wonders what he means by the latter) as well as equal protection, and “protections against governmental deprivation of life, liberty or property.” Moreover, matters like the length of the president’s term of office and the existence of two houses of Congress are “better left settled” and “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.”
In fact, Dr. Seidman does not believe he is calling for all that great a change in how we are governed, arguing that “what has preserved our political stability is not a poetic piece of parchment, but entrenched institutions and habits of thought.” And here, at least, Dr. Seidman is correct. No piece of parchment can maintain ordered liberty and the rule of law. Only a people imbued with the character necessary to respect its traditional institutions, beliefs, and practices can exercise the restraint integral to decent governance. One cannot have a constitution without what George Carey has termed a “constitutional morality,” that is, a felt duty to uphold the constitution’s provisions. Unfortunately, the habits of thought promoted for many decades by academics and activists like Dr. Seidman already have caused great damage, not just to the parchment, and not just to our constitutional morality, but even to our understanding of what any constitution can and should accomplish.
In responding to Dr. Seidman’s piece, Harvard Law School’s Lawrence Tribe defends our Constitution as “a skeletal structure that frames a living conversation about our relationship with government.” Tribe values the Constitution for naming certain rights he values and providing a “rickety old structure” within which to engage in policy debate. One wonders, however, what substantive difference exists between Seidman and Tribe, for if we “admit” an “almost infinite” variety of meanings to constitutional text, we are left with Tribe’s “skeletal structure,” serving only as a set of vague markers to keep track of shifting judicial policy preferences. After all, a “living conversation about our relationship with government” strips the Constitution of its status as a higher law that establishes procedures and boundaries on political action. Instead, it empowers the elite body of the Supreme Court to oversee a process by which judges impose their views of political morality on the country.
There has been some outrage expressed toward Dr. Seidman for his views. But I, for one, applaud his honesty. He is only calling for a more open and straightforward application of the “living constitution” ideology that has ruled in our law schools now for some decades.
The problem is not merely that our legal elites hold our Constitution in contempt, but that they feel justified in undermining and transforming its central provisions in the name of their own chosen goals and preferences. Again, Dr. Seidman has been most honest and forthcoming. In a symposium in the journal Constitutional Commentary, published in 2011, Dr. Seidman and some of his colleagues answered the question “how would you rewrite the United States Constitution?” Dr. Seidman responded:
If I had the power to rewrite the United States Constitution, I would first take some time to think hard about the sort of country I wanted to live in. Having done my homework, I would then draft language that, to the best of my ability, insured that we had such a country. Some of the language would be substantive—for example, guaranteeing the rights that I think people ought to have and directly commanding outcomes that I think we ought to reach. Of course, there would also be procedural provisions. Various powers would be allocated and divided, various offices created and the duties of their occupants specified, and various practical details sorted out. But all of these procedural provisions would have but a single purpose—to produce the substantive outcomes that I preferred.
According to Dr. Seidman, the key to good constitutionalism is to do one’s “homework” by “thinking hard” about what values the constitution should impose on a society. One wonders, here, what kind of “homework” such hard thinking would actually involve, and what makes Dr. Seidman believe a lawyer such as himself has any qualifications giving him the right to impose the results of his thought experiments on any society. Yet Dr. Seidman is no more arrogant in his assumptions than the bulk of his profession. One contributor to the symposium, Sanford Levinson of the University of Texas Law School, went far toward summing it up in the title to his essay: “So much to rewrite, so little time.”
As with Tribe, so with Levinson, there is an apparent conflict between his preferred revisions and Dr. Seidman’s substantive, overt rejection of the Constitution. But, again, the conflict is more apparent than real. Dr. Seidman asserts that constitutions exist as means by which to “command outcomes,” that is, to mold society according to self-generated blueprints for a “great society.” As Dr. Seidman writes in this regard, “what else would one possibly expect? Of course my choice of a constitution will be dictated by my hopes for the country to be governed by the constitution.” Thus, the only real constitutional issues, in Dr. Seidman’s view, concern “what sort of country I should want to live in and…what sort of constitutional design would create such a country.” For Seidman, among others, constitutions can create the society desired by the designer, provided they are drafted with appropriate care. Moreover, Seidman argues, it is impossible for constitutional provisions not to shape, fundamentally, the character of a nation—its fundamental nature as a polity as well as its distribution of property, the nature of its political life, and the extent and character of its private sphere, as well as the legal rights and procedures to be respected by its citizens.
Levinson, meanwhile, holds the U.S. Constitution in contempt on what he deems procedural, rather than substantive grounds. For him, the Constitution is unworthy of emulation or retention because it embodies the framers’ “antipathy to even a hint of direct democracy.” Levinson finds most troubling the basic structure of our constitutional order—elements, like the Presidential veto and the difficulty of securing constitutional amendments, which impede and prevent the general will from being made into public policy.
Substance or procedure? Normative goals or neutral principals? Among liberal constitutional lawyers the difference remains more apparent than real. For example, Levinson abhors our society as much as our constitutional structure: “we are living in an ultra-Burkean society that often seems to be organized around a truly remarkable kind of ancestor worship—extending well beyond the persons of the ancestors to the handiwork they created—that would amaze any anthropologists stumbling upon it in what used to be called a ‘primitive’ society.”
It seems clear that Levinson faults Americans for being insufficiently devoted to direct democracy itself. But this in turn makes clear that direct democracy is more than merely a procedure, in Levinson’s view. Direct democracy is a kind of end, a crucial element to a democratic good life. As befits a constitutional lawyer, Levinson argues for a number of structural policies. For example, he calls for proportional representation and elimination of our state-based Senate. Not surprisingly, however, he sees as a central benefit of these reforms the fostering of cosmopolitan, egalitarian attitudes.
Levinson’s plea is for a more democratic society and people, made such by a more “democratic” constitution. He does not seek simply a more democratic set of procedures, though he does that as well. More, however, he seeks a polity that transcends commitment to a republic—which he pointedly references in connection with the anti-Semitic John Birch Society─and certainly transcends commitment to localities. His procedural recommendations are aimed at producing a substantively different polity from America today—one that is more “democratic” in the sense of embodying commitment to universal, individualized equality. Thus, rather than simply say that Levinson’s politics drive his constitutional theory, it would be more accurate to say that, as with Dr. Seidman, his vision of a good society drives his view of what the constitution ought to be. That is, for Levinson a good society is one in which people have the correct, egalitarian or “progressive” political preferences, and in which the constitution promotes translation of these preferences into policy in a rather direct, immediate manner.
Such appears to be the trend: concern with achieving “good” (meaning, of course, social democratic) ends. And, while there may be technical problems and disagreements regarding how best to balance liberty and equality, who could argue with a concern to achieve good ends? Anyone with even the most basic understanding of the nature and limits of constitutions and constitutionalism.
Seidman, Levinson, and constitutional lawyers today in general assume that the purpose of a constitution is to create a good society. Sadly, they also have imposed this vision of constitutions on most of the world. It is highly unusual for a new constitution not to provide all kinds of “positive rights” to things like employment, healthcare, and even leisure, even as they centralize power in the national government with a view to making those rights “reality.” Take, for example, the 1998 constitution of Sudan:
The State shall give due regard to social justice and mutual aid in order to build the basic components of the society, to provide the highest standard of good living for every citizen, and to distribute national income in a just manner to prevent serious disparity in incomes, civil strife, exploitation of the enfeebled and to care for the aged and disabled.
The Sudanese state, here, is given the responsibility (and the right) to secure the good society for its citizens—constructing the components of that society, establishing a high standard of living, distributing income “fairly,” and caring for those not able to care for themselves. Noble thoughts, to be sure. Would that the constitution, and the government it installed, had at least stopped the Sudanese military from committing genocide in its Darfur region.
It is little wonder, given the huge gap between constitutional promise and political reality, that civil wars, coups, and coup-attempts are sadly common; between 1960 and 2001 there were 82 successful coups in Africa, and another 16 between 2000 and 2012. Of course, Africa is not alone in suffering political instability and violence. Since 1950, in Africa, Central and South America, and Asia, one finds over one hundred examples. In some countries, the military coup d’etat remains a constant threat. Between 1997 and 2006, there were at least twenty-five coup attempts in these areas and at least fourteen were successful. And this does not include the massive bloodshed of civil wars in Rwanda, Kosovo, Sudan, and Congo-Kinshasa, to name only a few.
It seems easy for constitutional lawyers in particular to dismiss such tragedies as “not our fault” because they are rooted in the failure of regimes to live up to the promises of their constitutions. But it is both self-serving and simplistic to dismiss the gap between promise and performance as the result of powerful bad actors. And the problem is not just that some regimes in some parts of the world cannot afford to perform on their promises. Our own political system is broken in large part because our politicians have promised too much (and the people have demanded too much) for any government to possibly afford. Our Constitutional machinery is breaking down, with Presidents increasingly ruling by decrees dubbed “Executive Orders” for the simple reason that limited government is inconsistent with unlimited governmental power.
The result of the drive to produce perfect equality, unlimited individual rights, and guarantees of all good things to the people through their government has been increasing contempt for a Constitution, namely ours, the authors of which were wise enough to know that governments, and constitutions, are very limited in what they can provide, particularly if we are to maintain the rule of law and ordered liberty.
Our Constitution’s provisions were intended to grant only limited, enumerated powers to the federal government, with even that going to separate, balanced branches. This intent was born of the framers’ recognition of the limitations of human virtue, the reality of the thirst for power, and the availability of other, safer institutions (principally family, church, and local association, though also local and state government) in which to pursue our substantive goals. Our Constitution assumes the existence of a limited, imperfect, but decent society and people; it assumes that a higher law, binding the governors to the rule of law and the people to procedures that demand consensus before making great changes in their government provides the best, safest way to address the inevitable tragedies and injustices of life while maintaining ordered liberty. Today’s constitutional lawyers too often reject this understanding, even as they act on an irrational belief that they and their colleagues have sufficient virtue and wisdom to create a better Constitution to create a better society.
Seidman, Levinson, and many, many others, focus on the injustices that have existed in our and other societies—including clear, massive injustices like slavery. But to demand that the government eliminate all forms of injustice is to demand the impossible. It also is to set those who govern on a path toward destruction of all limits on their own power and, eventually, to elimination of the rule of law. The countless tragedies, including mass murder and genocide in the name of “justice” perpetrated by “people’s republics” since the French Revolution should have taught us the danger of the demand for immediate justice—name the empowerment of evil. The restraints imposed by a consensus-centered Constitution may make us chafe, but they also force us to argue rather than demand, convince rather than attack those with whom we disagree, thus maintaining the rule of law as we seek to ameliorate the evils in our midst.
Our Constitution was, indeed, written by imperfect men who did not experience our current problems. Those men gave us a structure of government intended to impose procedures on all who wanted to use its powers. It separated powers, instituting checks and balances intended to prevent any one person or institution from being able to rule without answering to other branches. And such constitutional mechanisms preclude rule by simple majorities. They require consensus for significant shifts in policies. We currently do not have a consensus on how to deal with massive federal debts because we, as a people, are too attached to the benefits our government provides to us to give them up in the name of fiscal responsibility, and we are not willing (and, arguably, as an economic reality, unable) to pay yet higher taxes. This can be seen as a problem with our Constitution because no one can enforce a solution. But it is better seen as a result of our own childish desire to have a government change the world to suit our desires. No constitution can produce utopia, and demanding utopia can only destroy constitutional government and the rule of law.
Perhaps our “homework” should be “thinking hard” about what a constitution is really for, and what we can ask of our government while maintaining our liberty, and any constitution at all.
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1. Paul Collier and Anke Hoeffler, “Coup Traps: Why does Africa have so many coups d’Etat?” 2005, Centre for the Study of African Economics, 11.
2. Alec Stone Sweet, “Constitutions and Judicial Power” in Deniele Caramani, Comparative Politics, Oxford University Press, 2008, 234.