• September 3, 2014

The Constitution: Who Needs It?

The Constitution: Who Needs It? 1

Photo Illustration by Ellen Winkler and Robert McGrath

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Photo Illustration by Ellen Winkler and Robert McGrath

The Constitution: Who Needs It

Photo Illustration by Ellen Winkler and Robert McGrath

It's a Monday evening in October in a warm lecture hall a few blocks from the U.S. Capitol. In front of a couple dozen students in an introductory course on constitutional law, a low-key, shirt-sleeved Georgetown University professor, Louis Michael (Mike) Seidman, summarizes the ways the Constitution can be interpreted.

It can be read according to our best guesses as to the founders' original intent. Or by how the public first understood the document, in 1789. Or by the meaning people ascribe to it now. Or by the meaning that produces the best outcome.

Even when we can reach consensus on what the Constitution's articles mean, "there is always the question in front of us," says the bearded 65-year-old scholar, "as to whether we should obey them."

What's that again? Did this former clerk for District of Columbia Circuit Judge J. Skelly Wright and Supreme Court Justice Thurgood Marshall just tell a group of law students that there are times when we should ignore the Constitution?

Yup.

Seidman doesn't harp on the point. He moves on, as his listeners sip coffee and tap away on their laptops, to a detailed discussion of Youngstown Sheet & Tube Co. v. Sawyer, a 1952 Supreme Court ruling, concerning a steelworkers' strike during the Korean War, that limited presidential power.

But he explores his constitutional skepticism in depth in his forthcoming book from Oxford University Press, On Constitutional Disobedience, part of the publisher's big-picture Inalienable Rights series of constitutional critiques. 

Seidman's argument boils down to this:

We the current American people are not the people who agreed in the 18th century to be governed by the Constitution (that's assuming that the colonists themselves agreed, a proposition about which he is also dubious). More practically, politicians, judges, and advocacy groups contort the Constitution's often vaguely worded precepts to match whatever they're pushing for. That makes citizens cynical and distracts us from considering what policies would be best for the country in regard to health-care finance, gun control, antiterrorism, and countless other matters.

The Constitution: Who Needs It

Karen Kasmauski for The Chronicle Review

"When you see how the law works up close, you just cannot miss the tremendous gap between the story law tells about itself and the way things actually function," says Louis Michael Seidman, a professor of constitutional law at Georgetown U.

Invoking the Constitution, Seidman says in an interview, is often "a disguised way of fighting out the merits" of an issue and is usually "profoundly beside the point."

Although Seidman is willing to bypass the Constitution, he still teaches it thoroughly, nuances and all. "There is this complicated body of constitutional doctrines," he says, "and I view my obligation as to make sure the students understand it and use it to write briefs and opinion letters—all the things that lawyers do in constitutional cases."

"At the same time, I do want the students to think, and think hard, about what I take to be really fundamental questions about the role the Constitution ought to play."

Without wanting to get specific, Seidman says his experiences clerking at the Supreme Court and a few years working in the D.C. Public Defender Service helped inform his constitutional wariness. "When you see how the law works up close, you just cannot miss the tremendous gap between the story law tells about itself and the way things actually function," he says. The Supreme Court "is more arbitrary, more at the mercy of eccentric views of individual justices, ... less principle-driven" than one would suppose or hope.

Seidman doesn't ask us to forget that the Constitution exists. It could be, he writes, "a symbol of national unity if we focused on its commands at the most abstract level." For instance, "almost everyone supports liberty and equality in the abstract." He urges embracing "the Constitution ... as a work of art, designed to evoke a mood or emotion, rather than as a legal document commanding specific outcomes."

Seidman knows that his viewpoint might be perceived as insane—"utopian at best and just plain crazy at worst." Among mainstream politicians, it will be considered heresy, perhaps traitorous. Even among scholars, who debate the nature of constitutionalism, "very few people think that we should give up on it altogether," he writes.

Sanford Levinson, a law scholar from the University of Texas at Austin who is at Harvard this semester as a visiting professor, says he's "probably more moderate than" Seidman, but that "most people would consign both of us to the far end of the spectrum."

Levinson argues in Framed: America's 51 Constitutions and the Crisis of Governance, his recent book from the same Oxford Press series, that new federal and state constitutional conventions could cure at least some of the documents' problems. The federal Constitution's "deep structures," like bicameralism, are good and mendable, he says.

But like Seidman, Levinson thinks that Americans are waking up to the basic dysfunctionality of government, even if they haven't properly recognized the Constitution's role in creating some of those problems. He cites, for instance, an October 2011 New York Times/CBS poll that found that "not only do 89 percent of Americans say they distrust government to do the right thing, but 74 percent say the country is on the wrong track and 84 percent disapprove of Congress."

While high-profile constitutional debates focus on interpretations of controversial amendments about, say, free speech or gun control, some of the biggest obstacles to effective governance, Levinson says, are hiding in plain sight, in the Constitution's specific, even mundane-sounding "settled" basic articles—the Electoral College, age restrictions for political office, term limits, and so on.

To realize how far out there Seidman's and Levinson's views might appear, consider the cautions voiced in 2001 by Kathleen Sullivan, then a law professor at Stanford, now chair of the national appellate practice at the firm Quinn Emanuel Urquhart & Sullivan, and sometimes mentioned as a possible nominee to the Supreme Court. In "Constitutional Amendmentitis," published in The American Prospect, Sullivan responded to a rash of Republican-sponsored amendments "that would impose Congressional term limits, authorize laws against flag burning, give the president a line-item veto, abolish the Electoral College, outlaw abortion, prohibit remedial school busing, and authorize school prayer, to name a few."

Those proposals, she wrote, are "cause for alarm, even apart from any of their individual merits. For there are strong structural reasons for amending the Constitution only reluctantly and as a last resort. This strong presumption against constitutional amendment has been bedrock in our constitutional history, and there is no good reason for overturning it now."

And that was on the question of tinkering with the Constitution, never mind ignoring it.

There are, says Stephen Siegel, a professor at DePaul University's College of Law, longstanding, reputable veins of critical academic commentary about the Constitution—on how rulings are affected by popular opinion and judges' ideological backgrounds. Seidman's occasional collaborator Mark Tushnet has critiqued judicial review, for instance. A recent book by Lee Epstein, William M. Landes, and Richard Posner, The Behavior of Federal Judges (Harvard University Press), argues that rulings reflect a complex blend of judges' ideology and legalistic reasoning.

In From Jim Crow to Civil Rights: The Supreme Court and the Struggle for Racial Equality (Oxford, 2004), the Harvard law professor Michael Klarman scrutinizes the push and pull between court rulings and activism in favor of and in opposition to civil rights. In his 2010 book, The Living Constitution (also part of Oxford's Inalienable Rights series), David Strauss, of the University of Chicago, writes about how law can evolve free of the constraints of constitutional originalism without turning into an anything-goes jurisprudence. And so on.

In other words, says Siegel, there is a long tradition of discussion about how constitutional ideals fare in the real world. That includes arguments, like Seidman's, regarding what hold an 18th-century document should have over modern Americans, and regarding how much guidance the Constitution can offer in creating effective public policies in an ever-changing society. During his 2005 confirmation hearings for the Supreme Court, John Roberts famously compared judges to umpires calling balls and strikes. Siegel says that any legal scholar offering that view would be laughed off the lectern.

But Seidman's approach, calling for a reassessment of whether the Constitution is fundamentally valid and should be obeyed, goes beyond that. And if Seidman's argument is not something that's ripe to be acted on in some short-term way, Siegel says, neither is it to be shrugged off as if from outer space. Seidman and Levinson are, he says, "very senior, very established, very credible, and very respected people in this field," and their "analysis is to be taken seriously."

Seriously, maybe. But with alarm and some suspicion from the perspective of constitutional originalists, who think the document's meanings can and should be found in the intents of its authors. If Seidman is toward one end of the spectrum of constitutional interpretation, originalists might be seen as at the opposite end.

Michael Rappaport, director of the Center for the Study of Constitutional Originalism at the University of San Diego School of Law, is less sanguine than is Siegel about dismissing Roberts's balls-and-strikes metaphor. Yes, it's too simplistic, but that's in part because the academic and judicial establishment has been so smitten over the last 75 to 100 years with "living Constitution" interpretations that sufficient historical work hasn't been done to understand the context and intent of the framers' wording.

Although he and Seidman "look at the world very differently" from a political standpoint, Rappaport says, he shares Seidman's frustration over the way the Constitution is stretched to fit any and every policy argument. However, that's not the fault of the Constitution, he says, but largely of the living-constitutionalists who have manipulated its meanings.

In seeking a legal and societal basis other than the Constitution, Rappaport says, one quickly encounters the daunting, even insurmountable "we" problem. "Part of the reason to have a constitution is to allow people of different political stripes to feel comfortable living together," he says. Who is the "we" that will decide the rules that should substitute for the philosophy and processes our system has been built on over hundreds of years?

Seidman's views may be extreme, but they didn't occur suddenly. He has taught law since America's bicentennial. And over the past 36 years, he's had ample time to anticipate critics' objections to disobeying the Constitution. Here are his top 10 rebuttals, very roughly summarized:

1. Article VI makes the Constitution the supreme law of the land.

That just begs the question. It's the supreme law of the land only if you obey it, and that's what we're debating.

2. But why would you frame a Constitution if you weren't planning to obey it?

Of course the framers wanted to be obeyed. Anyone asserting power wants to be obeyed. But we can't obey any and every authority who seeks to rule us.

3. "We the People" consented to the Constitution by ratifying it, and so are bound to obey it.

Constitutional disobedience may seem a radical notion, but it is a centuries-old American tradition.

Did we? Many of the framers were genuinely concerned about the country's future. But the convention was also driven in part by speculators who had bought up Revolutionary War debt and wanted a strong federal government that would enforce taxes to ensure that the debt was paid. Other markedly unlofty considerations during constitutional negotiations included navigation rights on the Mississippi, whether states with ports would be able to collect fees from their neighbors, and whether Massachusetts Governor John Hancock would receive the founders' support for his re-election. Even if, despite the parochial concerns, we deemed the document's precepts worthy, remember that women, slaves, American Indians, and those without property were excluded from participating in ratification. Assent that flimsy should have no binding power over us 223 years after the Constitution took effect.

4. We can always amend what we don't like.

Not really. Amendment is a bear, requiring two-thirds vote by both houses or a call to convention by the legislatures of two-thirds of the states. Then it needs ratification by three-quarters of the states—not the 13 original ones, but the 50 wildly disparate current ones. Out of some 11,000 proposed amendments, only 27 have been ratified. Ten of those, encompassing the Bill of Rights, were necessary to get the original states on board, and the 13th through 15th Amendments entailed a Civil War that almost destroyed the country and were essentially forced on the Southern states as the price of readmission to the Union. More fundamentally, the amendment argument is again circular, because at issue is whether we should obey the Constitution that sets out its provisions.

5. The framers were wise and gave us a great document to build on.

They advanced political theory in key respects, no doubt. But the framers were products of their time, and many of their notions now look weird, if not actually repugnant. Many thought it was OK for people to own other people; to ignore women, nonwhites, and people without property; and for small or sparsely populated states to carry the same authority as large and/or populated ones. "On this view," Seidman writes, "constitutional obligation amounts to an intergenerational power grab that modern Americans should resist." To the extent that the framers were wise, there's nothing stopping us from keeping the provisions we like not because we have to but because we think it would be smart.

6. If we don't obey the Constitution, anarchy will ensue.

Why? England and New Zealand function quite nicely without constitutions, don't they? Also, we've often, in practice, violated, or at least dramatically stretched, constitutional precepts—sometimes, indeed, in an effort to avoid anarchy. Think of President Franklin D. Roosevelt's clashes with the judiciary over New Deal programs during the Depression. People don't generally like anarchy and are usually good at taking sensible measures to avoid it.

7. Through Americans' experience as a nation, we have come to believe that it is wise to obey the Constitution.

Really? How many Americans have actually thought about whether constitutional obedience leads to smart policies? And once more, the assertion is circular; it seeks to avoid the argument by claiming that it's not an argument worth having.

8. The framers were wise enough to write the Constitution so vaguely that we don't need to disobey it.

That's lukewarm praise at best. Where the Constitution is vague and ostensibly benevolent, as in the 14th Amendment's equal-protection language, it is harmless but also toothless (see No. 10). And on some matters, it's very specific and arguably silly—mandating, for instance, that someone who moved here as a baby can't be president, or that someone under 30 can't be a senator. Article I is "pretty clear" on the point that as presiding officer of the Senate, a vice president would have to "preside over his own impeachment," Seidman notes. Grist for a Marx Brothers routine, but hardly evidence of the fathers' wisdom.

9. The framers took the long view, whereas we might change something impulsively, in a fit of passion or a moment of crisis.

See No. 3. You're overestimating the founders' wisdom, and quite possibly underestimating ours. More than that—if we don't make our best judgments about what America needs now and in the future, we're not living up to our responsibility as citizens.

10. Well, OK, maybe the Constitution is flawed. But it's still vital because it protects our civil liberties.

Sadly, no. In times of crisis, it hasn't. It didn't protect slaves. "When slavery was eventually overthrown," Seidman writes, "it happened not because people felt bound to obey the Constitution, but because they were willing to fight a devastating war to change it." The Constitution didn't protect African-Americans during Jim Crow, either. It didn't protect dissenters during the early years of the Republic under the Alien and Sedition Acts, during World War I, or during the McCarthy era. Nor did it protect Japanese-American internees during World War II.

Laws nominally protecting civil rights in 1954 didn't truly protect minorities until civil-rights activists, a decade later, persuaded Northern whites that Southern bigotry was intolerable, Seidman argues. In The Federalist Papers, James Madison presciently doubted the ability of mere "parchment barriers," laws on paper, to resist "the encroaching spirit of power."

Is the Constitution currently protecting, from conservatives' standpoint, states' rights against federal regulations and mandates? Or, in liberals' view, the rights of the 2.5 million Americans in prison (the highest incarceration rate in the world)? Maybe. Maybe not. The Constitution's influence in such matters is, to say the least, murky.

How it's interpreted, Seidman says, depends whether you're looking at it from "classical liberal premises," with freedom "associated with individual choice and the absence of public coercion," or "classical republican premises," with freedom associated with collective, democratic governance without threat of "the co-optation of state institutions by narrow, self-interested minorities."

Even when the Supreme Court does arguably defend citizens' rights, as in Brown v. Board of Education or Roe v. Wade, or more recently in decisions on affirmative action, women's rights, gun control, and the death penalty, it usually isn't acting in bold defiance of populist views, but rather reflecting those views. Why judicial decisions adhere to shifts in public opinion is mysterious, Seidman writes, but legislative sway in the courts' budgets, or the executive and legislative workings of nomination and confirmation are probably more powerful factors than any constitutional rationale.

Yes, the Supreme Court has sometimes protected minority rights, Seidman concedes. In various eras, it has upheld the rights of slave holders and those of criminal defendants. It has outlawed prayer in public schools and upheld the right to sexually explicit expression. It has ruled in favor of white foes of affirmative action, for political speech by corporations, and picketing by a fringe group at soldiers' funerals. But those can be considered counterexamples only if they reflect constitutional obedience and not the justices' "own policy preferences." And that, says Seidman, is a big if.

Constitutional disobedience may seem a radical notion, Seidman says, but it is, itself, an American tradition. Authorities have for centuries bent, if not outright broken, what they saw as constitutional edicts, usually because they considered their actions, rightly or wrongly, the wise things to do.

Thomas Jefferson purchased the Louisiana Territory despite his own doubts about the move's constitutionality. Justice Robert Jackson signed Chief Justice Earl Warren's antisegregation opinion in Brown v. Board of Education, but records show that while Jackson felt his concurrence was politically justified, he did not, in fact, see segregation as violating the 14th Amendment. More prosaically, while senators from new states are supposed to serve six years, ever since Vermont joined the Union, in 1791, one senator from each new state has had a term shorter than six years so that elections could be staggered.

Sometimes different branches and levels of government simply disagree on what's constitutional. In Cooper v. Aaron (1958), the Supreme Court ruled, amid widespread resistance to Brown v. Board of Education, that its decisions were binding on all government officials, regardless of whether or not they saw the rulings as constitutionally just.

More often than not, showdowns between branches and levels of government are avoided because of a tradition of judicial supremacy. But that tradition is just that—not, Seidman says, a clearly stated constitutional foundation. We accept it, he writes, "because in some situations, we cannot have both law and order."

As you burrow further into such questions, they become metaphysical. Perhaps, you say, it is the myth of constitutional order that's necessary to ensure an approximation of justice and order. Seidman dismisses that notion as "an extraordinarily cynical and elitist view," which "assumes that it is legitimate, possible, and necessary for the cognoscenti to manipulate the masses."

But "without a constitution, how would we know that a measure passed by Congress is a law and not just meaningless ranting by a bunch of pompous and superannuated poseurs?" Ah—that is an existential jurisprudential quandary, Seidman admits, but not one that a constitution can resolve. For a constitution to legitimate laws, the document itself must be legitimate, and that brings us back to the arguments we started with.

Without constitutional grounding, on what basis would court rulings be made?

Well, on what basis are they made now in cases involving limits on affirmative action, say, or the freedom to have gay sex? Those decisions, Seidman writes, are "at best tenuously tied to the constitutional text," and reflect, instead, a mix of policy judgment, interpretation of tradition, moral boundaries, and so on.

Without a constitution, for better and for worse, he writes, "the Supreme Court would no longer be able to hide behind the pretense" of mere constitutional interpretation. "Instead it would have to defend openly the proposition that an elite, deliberative, and reason-giving body should have a check on the political branches." In lieu of constitutional foundations, Seidman suggests that we sort through rationalist, existentialist, Rawlsian, and contestation theories, the last including the requisite that any foundation "must preserve the possibility of legitimate contestation" rather than prejudge outcomes.

It is the Constitution's role as a point of contestation—a fulcrum, however historically arbitrary—that Seidman ambivalently championed in his 2001 book, Our Unsettled Constitution (Yale University Press). In the new book, his argument evolves in search of better, more honest grounds.

Seidman hopes his reasoning will elicit a glimmer of recognition from a populace already wary of how the Constitution is manipulated in the course of everyday policy discussions. "The abstract Constitution is said to be a symbol of national unity, while the actual Constitution does no more than mirror our national divisions," he writes. "The situation is unstable and is ripe for exploitation by constitutional skeptics."

Indeed it is, says Levinson, the Texas law professor. He has his own favored constitutional reforms—eliminating the Electoral College, creating nonrenewable 18-year terms for Supreme Court justices and a single six-year term for the president, allowing Congressional no-confidence votes in the president, letting members of Congress serve in cabinets. But he knows that in a new constitutional convention—attended by representatives selected by lottery, he proposes—some of those ideas would fly, others wouldn't, and, in seeking best practices, all sides would inevitably have to make compromises.

If the political system is left as is, he says, "more and more power will accrue to an already very strong presidency, ... or in some areas the courts will make decisions because Congress can't." The so-called fiscal cliff is a high-profile short-term example. But it's the longer run Levinson is worried about. He finds "something ominous" in legislative stalemates followed by strong executive or court actions.

"If you're concerned about the retirement system, medical care, immigration, ... you've got to have legislation," he says. And the legislative engine just isn't running properly.

"We've got a public discourse going on entitlements or the debt," says Levinson. But "there is currently no public discourse going on about the Constitution."

Seidman knows that a cultural shift away from the Constitution seems unimaginable—but so, until recently, did a black president or gay marriage.

"I don't want to be grandiose about this book," he says. "I count myself lucky if my wife reads what I write, let alone starting a national conversation." But "I do think what we're talking about here is cultural change." America is "at a stage where there is a growing realization that a lot of constitutional law is empty posturing."

"A majority of the American people think justices use political considerations in deciding important cases," and on both sides of the aisle the assumption is basic to the way confirmation hearings are run, he adds. Such cynicism "uneasily cohabits the same space as this reverence for the Constitution."

"That's not a stable situation."

How does a new conversation about constitutional legitimacy begin? Well, maybe through books, Seidman says. But more immediately, "at the granular level, it is produced by ordinary individuals who challenge conventional wisdom." When someone claims that something's unconstitutional, he argues, "each of us should answer with a perfectly straightforward, but deeply subversive, two-word question: 'So what?'"

Alexander C. Kafka is deputy managing editor of The Chronicle Review.

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