March 9, 2020

Constitutional Cynicism

There seems to be much confusion and little consensus on any political issue at present, so I suppose that it shouldn’t be surprising that the Constitution has become controversial, at least in some circles.  The cover of an issue of Harper’s a few months back asked, “Do We Need the Constitution?”   The article’s title put the question this way: “Constitution In Crisis: Has America’s founding document become the nation’s undoing?”  I have thought that our problems regarding the Constitution are that Trump is ignoring it and the Roberts Court is misinterpreting it. 
   
More sophisticated minds see deeper issues.  The magazine assembled a panel to “consider the constitutional crisis of the twenty-first century,” and published its discussion.  Because most of the panel’s comments are surprisingly negative, and because the panelists presumably are knowledgeable about the Constitution, I have quoted them at length.

The editorial introduction described agitation that I somehow have missed:

America’s Constitution was once celebrated as a radical and successful blueprint for democratic governance, a model for fledgling republics across the world. But decades of political gridlock, electoral corruption, and dysfunction in our system of government have forced scholars, activists, and citizens to question the document’s ability to address the thorniest issues of modern political life.

That led to consideration of remedies:

Does the path out of our current era of stalemate, minority rule, and executive abuse require amending the Constitution? Do we need a new constitutional convention to rewrite the document and update it for the twenty-first century? Should we abolish it entirely?

Some of the issues listed are not Constitutional in nature;  the reference to executive abuse and the suggestion that the Constitution be abolished are contradictory; what is unique about the current century?   That lack of clear focus carried over into the discussion.¹

The moderator, Rosa Brooks, struck a provocative note:

Let me tell a story about what I do in my constitutional law classes at Georgetown. In the very first session, I say to my students, “The United States has the oldest continually operative written constitution in the world. How do you feel about that?” . . . After everybody has a chance to talk about how great it is that the United States has this very, very old written constitution, I ask them how they would feel if their neurosurgeon used the world’s oldest neurosurgery guide, or if NASA used the world’s oldest astronomical chart to plan space-shuttle flights, and they all get quiet.

(The students apparently are too polite to point out how meaningless the comparison is). She continued, offering a variation on the theme which at least avoided dubious analogies:

How did it happen that the United States, which was born in a moment of bloody revolution out of a conviction that every generation had the right to change its form of government, developed a culture that so many years later is weirdly hidebound when it comes to its form of government, reveres this piece of paper as if it had been handed by God out of a burning bush, and treats the Constitution as more or less sacred? Is it really such a good thing to have a document written almost 250 years ago still be viewed as binding us in some way?

In what way are we “weirdly hidebound” as to our form of government? What form does she advocate?
 
To my knowledge, an every-generation theory was not espoused by the Founders, apart from Jefferson, who did not participate in writing the Constitution.  Never mind; he’s the authority, according to David Law: “Thomas Jefferson would be rolling over in his grave. He thought that every generation should rewrite the Constitution. It should be revised every nineteen years.” Then another misplaced analogy: “here we are, bragging about the fact that we’re running Windows 1.0.”  Our ancient operating system is in such bad shape that “we have these nine superannuated people — Supreme Court justices — appointed for life to keep patching it.”  I’ll applaud nearly any criticism of the current Court, but “patching” doesn’t describe its work. 

Analogies are useful to illustrate or liven up a discussion, but overuse suggests that the argument is weak, and here came another: “This is a little like the inhabitants of a really old apartment building pledging their undying loyalty and allegiance to a blueprint that must never be changed, and so when you want to renovate your bathroom people dig out the blueprint and ask themselves whether the bathroom renovation is in accordance with the spirit of the blueprint.”

According to Louis Michael Seidman, the Constitution is illegitimate.  The delegates to the Philadelphia convention had been sent there to amend the Articles of Confederation.  Instead, they drafted a new document.  “So, from the beginning, the Constitution was in some sense illegal. It’s a neat trick to get from that to a time when people feel bound to respect the document.”  The neat trick was ratification.

To Mary Ann Franks, the Founders committed fraud.

We have not, as a country, fully confronted the fraudulent nature of the Constitution and the founding itself. The revolutionary spirit was always, from the very beginning, a limited one. It was a revolution for some people, and this idea that we threw off the yoke of tyranny was immediately constrained by the idea that you didn’t want to throw it off too much. The founders didn’t want to throw it off for slaves, and they didn’t want to throw it off for women. They wanted to have this very contained revolution.

The Constitution indeed did not empower women or free slaves.  Do we throw the document out?  That seems to be the implication:

The mythology is that there is this grand moment of revolution, when we decide that we stand for equality and justice and all the rest of it. But we also know that the mythology includes all these asterisks, because the people who made all those decisions were the most privileged members of society, and even though they sought, for themselves, not to be oppressed and not to be exploited, they immediately denied that right to everybody else. . . . [W]e have lived with this mythology for so long, and we don’t quite experience the cognitive dissonance that it ought to generate within us, because every word of the Constitution — starting from this premise of “we the people” — is a lie.

That conclusion is nonsense, and as to the argument that the founding documents are fraudulent, or hypocritical, consider the very different, and much more useful, attitude of Martin Luther King, Jr.: “When the architects of our republic wrote the magnificent words of the Constitution and the Declaration of Independence, they were signing a promissory note to which every American was to fall heir.”²  Progress is possible.  Progress can be guided by principles not fully honored when laid down, but nonetheless valid.  

However, there is yet another problem; Lawrence Lessig thinks that the Constitution has been captured by  “experts,” who somehow keep it out of the reach of ordinary folk. “There is a huge gap between the kind of democracy people want and the kind the Constitution and our political culture currently allow for.”  He added later:

When there have been constitutional, grassroots movements, movements that have tried to say, “We should be involved in making our Constitution reflect us,” there have been organized efforts, on the left especially, to say, “Shut up. Get out. This is not for you; it’s for the experts. It would be disastrous if the people got close to touching their own Constitution! It would be chaos.”

I can’t say that his history is familiar to me, but here’s the conclusion he draws from it: “Do you expect people to rally around a document that has no connection to the democracy of today, or yesterday, or even forty years ago?”  Are people that estranged from the Constitution, or is that a projection of the cynical views of the panel?

Never mind; the Constitution, in addition to its other shortcomings, is irrelevant.  Ms. Brooks, faced with a ploy by Trump, would respond:

Why would that [whether or not it’s constitutional] change anything for anyone? If we think something is evil and a bad idea, then it’s evil and a bad idea without regard to whether or not it is constitutional. Why should that have any relevance to a set of policy questions and moral questions that the United States is facing now?

Just say it’s evil and a bad idea and the problem will go away; no authority need be cited. 

Here’s a more sensible view, by Donna Edwards:I think part of the reason that today feels like a crisis is because the legislative branch is not functioning.  . . . And maybe it’s because I come out of the legislative branch, but it pains me to see Congress in such inertia that it gets in the way of us trying to at least preserve the elements and spirit of a Constitution that I think does bind people to a set of shared ideals, whether or not they know the details. 

Ms. Franks later took a more measured approach than in her opening statement, having discovered a part of the constitution that, apparently, is not a lie:[T]here’s a constant tension between whether you can try to dismantle a bad practice from the inside or if you have to blow up the whole thing and start over. . . . The position that I’ve taken as a preliminary step is to think, “Well, is there anything in the Constitution that is meaningful here, in a larger sense?” And for me I think the Fourteenth Amendment’s equal protection clause is where a lot of our efforts might be focused and energies spent.

However, having said earlier that the entire Constitution is a lie, and now having focused on one provision, she proceeded to offer this:

The way politicians and legislators interpret and use the Constitution today is like taking a scripture and using all the parts that validate the way they want to see the world and ignoring everything else. Because if we took the Constitution seriously as a whole, then we could have a lot of interesting discussions.

Perhaps Mr. Seidman was as baffled by all that as I am, for he then suggested a way to preserve the Constitution, but not be required to analyze it:

Maybe the right way to think about the Constitution is not as a legal document at all, not as a lease or a will or something like that. Instead, think of it as poetry. As a poem, or symphony. And if you think about it that way, it can be a symbol that unites the country. . . . Now, nobody would say that you have an obligation to obey a poem or a symphony; you can be inspired by it. . . . It causes us to have certain emotions, but you don’t obey a poem. And poetry doesn’t settle arguments. We can all be inspired by the same poem and reach different conclusions about what we ought to do.

We could set it to music.

Lessig noted a flaw in that theory: “But the problem is that we have a president who treats it like a poem, or a dirty limerick—he treats it like something he doesn’t have to respect or follow, and I don’t think that’s a good idea.”   That should have put the discussion onto a more constructive track, but Seidman was undeterred:

The very last way we want to confront Trump is with the Constitution as a legal text. That is a way of turning this argument over to lawyers, to people with technical expertise, who are elites, who are arguing about things like, “Gee whiz, what is the exact meaning of the word ‘emolument’ in the eighteenth century, and how does it relate to foreign powers?” and a lot of stuff that is beside the point when it comes to Trump.

Trump’s violation of the Constitution hardly is beside the point, and blaming “elites” is another sign of  a weak argument. 

Mr. Lessig properly dismissed it: “There is no ‘the problem’ with Trump. There are many problems with Trump. And one of the problems is that he is violating the core anti-corruption principle inside our Constitution as it’s supposed to constrain him.”  However, he returned immediately to his argument that the Constitution doesn’t belong to the people.  “I am happy to have one hundred lawyers go and try to take that on, but that doesn’t address the larger problem, which is, ‘How do we bring the Constitution to a place where people feel like it’s theirs again?’ And the only way we get there is to imagine a process for changing it.” 

Ms. Edwards provided an example of the supposedly absent popular connection to the Constitution.  Her reference was the Supreme Court’s decision in Citizens United.  She had proposed a Constitutional amendment to reverse it.

It took several years from almost no one signing on to every single Democrat being in favor of an amendment to deal with the problem of money in politics. And I don’t think that was a sea change brought about by legislators. It was a sea change that was brought about by people in communities who were tired of the system. There is a willingness on the part of the people to change the Constitution for the better, to bring it more in line with democratic principles.

The trashing of the Constitution continued.  Mr. Law saw “Americans trapped within a box, unable to transcend the constitutionalist way of thinking. Countries actually don’t need written constitutions. The United Kingdom doesn’t really have a constitution.”  However, that’s not so.  The UK Supreme Court recently declared the prorogue of Parliament engineered by Boris Johnson to be invalid.  It described the situation as follows:

Although the United Kingdom does not have a single document entitled “The Constitution”, it nevertheless possesses a Constitution, established over the course of our history by common law, statutes, conventions and practice. Since it has not been codified, it has developed pragmatically, and remains sufficiently flexible to be capable of further development. Nevertheless, it includes numerous principles of law, which are enforceable by the courts in the same way as other legal principles. In giving them effect, the courts have the responsibility of upholding the values and principles  of  our  constitution  and  making  them  effective.³

That is a “constitutionalist way of thinking.”  As one commentator put it, “In essence, what the Supreme Court decided . . . is that the UK does, after all, have a real constitution that its prime minister has a legal obligation to obey.”⁴

Law went a step further:

To be honest, I think America might be better off as a monarchy. In Canada, you have a symbolic king or queen—a nonpartisan head of state onto whom people can attach their loyalties—alongside elected leaders, who actually do the hard work, and then you can criticize the government and the constitution without appearing to be disloyal or a bad citizen. And we don’t have that. In America, people declare their loyalty to this ancient document instead.

That doesn’t make sense, even superficially. 

He conceded this much: “If you’re in a revolutionary moment and you need to decide on a new set of arrangements, which is where we were in the late eighteenth century, then okay. A constitution is helpful.”  Seidman disagreed:

I don’t think we need the Constitution even in times of change. We need to forget about constitutionalism entirely. Or at least forget about the constitutionalism of rules and detail—of arguing over what exactly the framers meant in this or that passage. . . .  What keeps the country together, in the end, isn’t the Constitution. It is a bunch of sub-constitutional or extra-constitutional norms about behavior, things like “you don’t default on the national debt,” or “you don’t say we’re just going to block any Supreme Court justice who is nominated.”

If that’s the principle, we’re in trouble. Neither of the supposed rules is honored by Republicans.  

Lessig responded: “It’s one thing to say we can fix it by just imagining our norms to be in the right place, but I think a lot of people have been imagining norms and not getting very far.”  He again expressed his concern that the “Constitution is not producing a democracy that’s responsive to the people. And that is a gap that we have to find a way to fix.”  Later he gave some general substance to his remarks by referring to a “corrupted process for selecting our representatives and our president,” but he provided no details, perhaps because he despaired of amending the Constitution.  He advocated calling a constitutional convention under Article V, which sounds democratic, but would be a circus and faces super-majority problems, just as amendment does.

In arguing against that. Seidman improved on his theory of extra-constitutional norms: “What keeps the country together—to the extent it is still together—is a much looser sense that we’re all in this together, that we sink or swim together, and some very loose ideas about tolerance and equality. If you try to put that into a legal text, things are going to come apart at the seams.”  I see no basis for the last comment, but it’s true that a sense of being in it together is not primarily a legal issue; ultimately it is one of leadership.

Although there were a few sensible comments, most of the discussion was aimless and negative.  Even constrained by the label applied in the editorial introduction, “the constitutional crisis of the twenty-first century,” the discussion could have been useful if it had focused on the assault on constitutional government by the Trump administration, abetted by Republicans in Congress.  The course the panel followed was not helpful.  With an authoritarian in the White House, undermining respect for the Constitution is the last thing we need now.

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1.Some of the panel’s comments quoted below are not in the order presented in the article.

2. I Have a Dream speech, Washington D.C.,August 28, 1963

3. https://www.cnn.com/2019/09/24/uk/uk-supreme-court-parliament-judgment-in-full/index. html

4. https://carnegieeurope.eu/2019/09/25/what-does-uk-s-supreme-court-ruling-mean-for- brexit-pub-79919

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