Re: Founding-Centered Constitutionalism

[Robert Sheridan]

Title: Message

Apropos this discussion, today's New York Times (5/31/03, p. A15) has an article by Felicia R. Lee entitled "Constitutionally, A Risky Business," in which she reports on constitution-making from ours to Iraq's work-in-progress.  She reports that more than 100 countries have tried to create democratic constitutions for themselves over the past 35 years.  Many have failed.  Experts agree that there's no one right way to do the job.  She reports further, and I'll quote, paraphrase and omit:

 

"There's a fantasy that constitutional law is an appliance you plug in in New York and then plug in in Budapest or Baghdad," said Stephen Holmes, a professor of law at New York University Law School.  "[P]rovisions of a constitution interact with each other in unpredictable ways." he said.

 

American scholars in particular, according to Holmes, often succumb to the mythology of their own constitution, the oldest written democratic constitution, as a document that should be reproduced around the world, he said.

 

""Bereket Habte Selassie, a professor of law and African studies at the University of North Carolina at Chapel HIll agrees and observes that in the 1950s, Europeans summoned African leaders to capitals like London, Paris and Brussels and shoved constitutions down their throats.  The leaders of those countries became autocrats," which he sees as evidence that imposing foreign models does not work."" ...

 

Mr. Selassie, chair of the U.S. Institute for Peace, a government-sponsored research group in Washington, which is studying 140 cases of constitution writing says that an overriding principle in the process is "the participation of the people, ...to make them feel they own the constitution.  Even illiterate citizens can listen to radios or attend meetings," he said.

 

Many countries begin their process by identifying their biggest problems and then using the constitution to fix them.  Cass R. Sunstein, a professor of constitutional law at the University of Chicago, calls this approach countercultural. [italics added0.

 

"The Americans were very alert to this," said Mr. Sunstein... "The Bill of Rights is just partly a set of recollections of what wrong under the British."  He notes the need for a balance between aspirations driven by recollections of oppression and things that can be enforced by law...

 

An open process also confers legitimacy, said Timothy D. Sisk, a professor of international studies at the University of Denver, but can slow the process of creating a workable constitution.  Secrecy allows for tradeoffs and deals that are not politically palatable.  "In South Africa they had over one million submissions about the different clauses...," Mr. Sisk said.

 

What constitutions really do, said Mr. Sisk was to "...set the rules for future interaction, so conflict can be negotiated and settled."

 

This month the Public International Law and Policy Group and the Century Foundation...prepared a 58-page report on establishing an Iraqi constitution.

 

Even with all the expert advice "It's not going to be a bunch of academics giving them a constitution," said Paul R. Williams, a professor of law and international relations at American University, who worked on the report.  "It's going to be the end product of a lot of political bargaining, a fierce political bargaining process."

 

For all the diffculties, said Barnett R. Rubin, a political scientist who has been working on the Afghanistan Reconstruction Project, "Writing constitutions is easy compared to implementing them."

 

***

 

Comment:

 

Our constitution was drafted as described above, as "the end product of a lot of political bargaining, a fierce bargaining process," and is based on both 'aspirations' and 'recollections.'  We identified our biggest problems and tried to fix them in the constitution, except for the slavery issue, which we deferred into the indefinite future because it was too intractable to settle then.  We insisted on the participation of the people, both through representatives at Independence Hall and popular ratification, particularly as to the insistence on adding a bill of rights.  The founding generation may've felt they 'owned' the Constitution much as we feel it belongs to us, it is ours, and we own it, in effect.  That's a big part of why we study, teach, and evaluate it, and the interpreting cases, as critically as we possibly can.

 

What this means to me is that we have a right to shape it to meet current needs, without apology to the founding generation for necessary departures and emendations, despite the greatest of respect for what they succeeded in putting together.  They must've expected some change, hence the Article on Amendments.  It evolves, in short, despite the critics of that.

 

I can see the originalist position, the textualists' insistence on sticking to the words used as they were understood to mean at the founding, but when push comes to shove, I have no doubt that today's needs and values are going to prevail over yesterday's, and they should, pace the Founders.  Our job is to tailor the changes so we don't discard important values irretrievably.  There's always the possibility of getting it wrong, and when we do, assuming we haven't wrecked ourselves in the process, we can hope to make a subsequent correction.

 

As Prof. Rubin said, "Writing constitutions is easy compared to implementing them."

 

The Founders' job was to agree on a constitution, and the rest of us have the problem of implementing it with as little bloodshed as possible.

 

We do seem to get caught up in our own mythology, don't we.  Prof. Jack N. Rakove, Coe Professor of History and American Studies at Stanford University, in Original Meanings, Vintage/Random House, 1996, refers in his Acknowledgements to "a special form of originalism" that he calls "law office history," in which law firms hire historians to research meanings.  Our Supreme Court frequently performs what might be called "Supreme Court history" to lend support to its reasoning.  Such history becomes 'official' and part of the canon, the myth, as it were.  I have no doubt that some of it is undoubtedly true.  Just don't ask me which...

 

Since I believe we're responsible for our own fate, I tend to want to say thanks to the Founders, and like the child grown up and out of the house, feel free to make our own decisions.  That's what we expect of our children, along with a certain respect shown to the values of their parents, perhaps even a little deference.

 

Bob Sheridan

SFLS

 

 

 

 -----Original Message-----
From: Discussion list for con law professors [mailto:[EMAIL PROTECTED] On Behalf Of Robert Justin Lipkin
Sent: Saturday, May 31, 2003 4:01 PM
To: [EMAIL PROTECTED]
Subject: Re: Founding-Centered Constitutionalism

In a message dated 5/31/2003 11:17:12 AM Eastern Daylight Time, [EMAIL PROTECTED] writes:

I think it very worthwhile to focus on the question whether the attitudes and views of the relatively small group of founding fathers deserve to be preserved in aspic [sic] forever . . .

       I agree. Moreover, I do not think that we are compelled to endorse the interpretation that regards the (famous) Founders as embracing a conception of self-rule contemptuous of ordinary people. And if we are so compelled, my response is that the (famous) Framers' view is simply incoherent. I do not understand, even in theory, how the people can be the normative source of political power and self-rule, yet be totally excluded from self-governing as it occurs on a daily basis. Or even if we refrain from rejecting such a view out of hand, we must, at least, explain how the people can be fit as the normative basis of self-government and similarly fit every two, four, or six years to elect the elite politicians, yet must be excluded a prior from a more active and permanent role in self-government. The central point here is that if the (famous) Founders' conception of self-rule is canonically contemptuous of ordinary people, that conception is not easily distinguishable from the monarchist conception, the Founders fought against. Instead of one King, we now have several Kings to govern a grateful polity.

       Distinguish between two possibilities: (1) For pragmatic reasons existing at the time of ratification, the American constitutional system was designed in a particular way giving ordinary people a say only in elections and in times of revolution, and (2) This design is canonical; it can be altered through an Article V change, but if it is, the new system will nevertheless pervert the true (best, sacrosanct, take your pick) theory of the (famous) Founders that ordinary people have no (permanent political) role in the day to day vagaries of self-government. I might be persuaded to accept (1). But I think (2) is anathema to the notion of self-rule (even as the (famous) Founders understood this), and a perversion of the same.

       In the final analysis, if I embraced a Founding-centered constitutionalism, I'd be more interested in the Founding population, including of course the Founding Fathers, but in no way limited to them. But as I indicated earlier I agree with Bob Sheridan's suggestion that we must question whether a Founding-centered constitutionalism is anything more than one indicia of the appropriate conception of American self-rule. And after two hundred years of American constitutional development, a Founding-centered constitutionalism, though still relevant (though decreasingly so), is hardly dispositive of what the American conception of self-rule includes. 

Bobby Lipkin
Widener University School of Law
Delaware