Should We Discard the Constitution?

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.

The memo Jackson actually wrote is a much sounder guide to his thinking, but, contrary to Seidman’s assertion, it does not say the Court is free to ignore the Constitution, or that segregation is constitutional but should be struck down anyway. Instead, it lays out in detail a legal, not political, rationale for finding segregation unconstitutional. Jackson argued that conditions had changed since Plessy v. Ferguson, in which the Court had upheld “separate but equal” facilities, and that even if it might have been rational to treat newly freed slaves differently then, their rapid progress rendered such distinctions no longer justified. The memo in no way claims that the decision is political, nor does it utter a word of protest.² Thus, Seidman’s main example in favor of constitutional disobedience turns out to have been constitutionally faithful to the last.

Seidman’s claim that constitutionalism is to blame for today’s bitterly partisan political culture also can’t be squared with the evidence. Hyper-partisanship is relatively recent, but the Constitution has been with us since 1789. Contemporary political culture is much more likely influenced by other factors: the polarization of the media between Fox and MSNBC and their look-alikes; the gerrymandering of “safe” congressional districts where the primary is the only real race, so that candidates need only satisfy their “base”; the ability of campaigns to “microtarget” direct political appeals to people that reinforce their own presuppositions; and the evenly divided electorate, which raises the stakes across the board, because small voting shifts may transfer majority control from one party to the other.

Nor does the evidence support Seidman’s further charge that constitutionalism is “deeply destructive of political community” because constitutional arguments “effectively exile the loser from the community.” Seidman is unclear about what he means here by “community,” but our political and judicial systems have survived the Constitution’s purportedly destructive influence for more than two hundred years. Having lost my share of constitutional arguments, I can say that I have never felt “exiled from the community” as a result. I understand, as I imagine most Americans do, that constitutional questions are often difficult, and that courts will not always decide them the way we want. Advocates of civil rights did not give up as exiled losers after Plessy; nor did pro-life proponents after Roe v. Wade. They continued to fight over the meaning of the Constitution, and in both cases succeeded in some significant measure.

Seidman himself acknowledged exactly this point in a 2001 book, Our Unsettled Constitution, where he argued that the Constitution “helps build a community founded on consent by enticing losers into a continuing conversation.”³ In that book, he asserted that “by destabilizing whatever outcomes are produced by the political process, [the Constitution] provides citizens with a forum and a vocabulary that they can use to continue the argument.” Seidman never explains why the same Constitution that twelve years ago he applauded for promoting community he now condemns for destroying it.

But where Seidman is perhaps most misguided is in his claim that the Constitution does little to protect civil rights and liberties. The most persuasive argument for a Constitution is that it identifies certain principles and rights as so fundamental that they should not be left to majoritarian processes. Recognizing that in a democracy, the majority will often be tempted to disenfranchise its opponents, impose burdens selectively on the vulnerable, disregard minority interests, and suppress dissenting voices, the Constitution guarantees the right to vote, equal protection of the laws, the freedoms of speech and religion, privacy, due process, and habeas corpus. These rights must be protected from the “all-things-considered” judgments that Seidman thinks should be our exclusive guide. He writes as follows:

The test for constitutional obligation arises when one thinks that, all-things-considered, the right thing to do is X, but the Constitution tells us to do not-X. It is only in this situation that constitutional obligation really has bite. It is only then that if we obey the Constitution, we are doing so for the sole reason that we are bound to obey. But who in their right mind would do this? If we are convinced after taking everything into account that one course of action is right, why should we take another course of action just because of words written down on a piece of paper more than two hundred years ago?

But all-things-considered judgments are not always right or just. All things considered, so they argued, many in the South thought that racial segregation was the best policy, and that blacks should be denied the vote and kept off juries. All things considered, majorities in many states and the federal government chose to make it a crime to burn the American flag or to join the Communist Party. All things considered, many police officers have deemed it appropriate to coerce confessions and to search homes without warrants.

When majorities or their representatives make such decisions, the victims are of course free to try to convince them to change course. But neither the majority nor its representatives have any obligation even to hear them out. Had the parents of black schoolchildren in Topeka, Kansas, instead of filing suit in Brown, asked the local school boards or the state legislature to allow their children to attend integrated schools, they would have been at best ignored. Flag burners, Communists, and women who chose abortion faced prison terms if the majority had its way. Without a Constitution, these and many others whose constitutional rights were violated would be at the mercy of the majority’s all-things-considered judgments. With a Constitution, enforced by courts, their rights were vindicated.

Seidman cites the all-too-familiar fate of civil liberties in wartime to suggest that the Constitution is powerless to protect rights. But that’s like saying we shouldn’t have built levees in New Orleans because they could not withstand Hurricane Katrina. The fact that the Constitution has not been strong enough to forestall some national security infringements in wartime hardly argues for disposing of it altogether.

Seidman, moreover, omits discussion of wartime decisions that protected rights, such as the cases involving the publication of the Pentagon Papers, detention at Guantánamo, and Truman’s steel mill seizure. And when one takes a longer-term view, the Constitution has been more protective of rights during war than Seidman suggests. The Court, like the rest of us, learns from its mistakes, and has often, through later decisions, declared unconstitutional measures employed during a prior crisis. Those postwar decisions then play a protective role in the next war. Thus, today it is clear that even during wartime, the government cannot make it a crime to speak out against the war, intern people based on their race, or impose guilt by association, even though in some prior wars all of these measures were used.

Moreover, the Constitution is not only, or even mostly, for wartime. The courts regularly rule that actions of the political branches are unconstitutional. Last term, the Supreme Court invalidated a drug conviction based on evidence obtained by GPS tracking in violation of the Fourth Amendment. It also threw out mandatory life-without-parole sentences for juveniles convicted of murder, finding them cruel and unusual under the Eighth Amendment. It revoked guilty pleas on grounds that the accused, in violation of the Sixth Amendment, were not provided effective legal assistance; and it lifted penalties on broadcasters for indecent speech because they were not provided due process. Less visibly, but more significantly, every day across the country, state and federal judges enforce the Constitution by suppressing illegally obtained evidence and invalidating executive and legislative action. In few of these cases would the victims have a prayer of obtaining relief through the ordinary political process.

Seidman’s objection to what he terms “constitutional obedience” rests on a caricature of how constitutions work. He repeatedly says that constitutional obedience only makes a difference when there is a gap between what we want to do and what the Constitution permits us to do. And he repeatedly characterizes the Constitution as nothing more than the views of long-dead framers. When we treat the Constitution instead as an evolving set of norms, many of which we accept, he argues, we are not truly subject to obligation.

But like all law, the workings of constitutional law are more subtle than that. One would not say that the criminal law is not obligatory because many of us have internalized its norms. So, too, the Constitution helps to legitimate certain principles, thereby restricting the options we and our representatives consider. At the same time, constitutional interpretation has always acknowledged that doctrines may develop over time, so that today’s Constitution reflects our fundamental values as much as it does those of the framers. Our value judgments are often influenced by the language and concepts of the Constitution, and the Constitution’s meaning is in turn affected by our judgments. But that does not mean the Constitution is not obligatory.

The fact that Congress rarely seeks to penalize political speech, for example, reflects a commitment to free speech, expressed by the framers in our Constitution, developed by the Court over time, taught in our civics classes, and internalized by many among us. The Constitution, in other words, is not a foreign object imposed on us by the dead hand of the past, but an evolving reflection of our deepest commitments. It may be, as Seidman, argues, that an engaged citizenry respectful of rights is the best protection of civil rights and liberties. But the Constitution helps build and reinforce that respect, by identifying the rights we hold most dear, ensuring that rights claims must be heard, and empowering courts—as well as the political branches—to protect those rights from encroachments by the governors and the governed. Discard it? No, thanks.