Washington
AS the nation teeters at the
edge of fiscal chaos, observers are reaching the
conclusion that the American system of government is
broken. But almost no one blames the culprit: our
insistence on obedience to the Constitution, with all
its archaic, idiosyncratic and downright evil
provisions.
Consider, for example, the
assertion by the Senate minority leader last week that
the House could not take up a plan by Senate Democrats
to extend tax cuts on households making $250,000 or less
because the Constitution requires that revenue measures
originate in the lower chamber. Why should anyone care?
Why should a lame-duck House, 27 members of which were
defeated for re-election, have a stranglehold on our
economy? Why does a grotesquely malapportioned Senate
get to decide the nation’s fate?
Our obsession with the
Constitution has saddled us with a dysfunctional
political system, kept us from debating the merits of
divisive issues and inflamed our public discourse.
Instead of arguing about what is to be done, we argue
about what James Madison might have wanted done 225
years ago.
As someone who has taught
constitutional law for almost 40 years, I am ashamed it
took me so long to see how bizarre all this is. 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?
Constitutional disobedience may
seem radical, but it is as old as the Republic. In fact,
the Constitution itself was born of constitutional
disobedience. When George Washington and the other
framers went to Philadelphia in 1787, they were
instructed to suggest amendments to the Articles of
Confederation, which would have had to be ratified by
the legislatures of all 13 states. Instead, in violation
of their mandate, they abandoned the Articles, wrote a
new Constitution and provided that it would take effect
after ratification by only nine states, and by
conventions in those states rather than the state
legislatures.
No sooner was the Constitution
in place than our leaders began ignoring it. John Adams
supported the Alien and Sedition Acts, which violated
the First Amendment’s guarantee of freedom of speech.
Thomas Jefferson thought every constitution should
expire after a single generation. He believed the most
consequential act of his presidency — the purchase of
the Louisiana Territory — exceeded his constitutional
powers.
Before the Civil War,
abolitionists like Wendell Phillips and William Lloyd
Garrison conceded that the Constitution protected
slavery, but denounced it as a pact with the devil that
should be ignored. When Abraham Lincoln issued the
Emancipation Proclamation — 150 years ago tomorrow — he
justified it as a military necessity under his power as
commander in chief. Eventually, though, he embraced the
freeing of slaves as a central war aim, though nearly
everyone conceded that the federal government lacked the
constitutional power to disrupt slavery where it already
existed. Moreover, when the law finally caught up with
the facts on the ground through passage of the 13th
Amendment, ratification was achieved in a manner at odds
with constitutional requirements. (The Southern states
were denied representation in Congress on the theory
that they had left the Union, yet their reconstructed
legislatures later provided the crucial votes to ratify
the amendment.)
In his Constitution Day speech
in 1937, Franklin D. Roosevelt professed devotion to the
document, but as a statement of aspirations rather than
obligations. This reading no doubt contributed to his
willingness to extend federal power beyond anything the
framers imagined, and to threaten the Supreme Court when
it stood in the way of his New Deal legislation. In
1954, when the court decided Brown v. Board of
Education, Justice Robert H. Jackson said he was voting
for it as a moral and political necessity although he
thought it had no basis in the Constitution. The list
goes on and on.
The fact that dissenting
justices regularly, publicly and vociferously assert
that their colleagues have ignored the Constitution — in
landmark cases from Miranda v. Arizona to Roe v. Wade to
Romer v. Evans to Bush v. Gore — should give us pause.
The two main rival interpretive methods, “originalism”
(divining the framers’ intent) and “living
constitutionalism” (reinterpreting the text in light of
modern demands), cannot be reconciled. Some decisions
have been grounded in one school of thought, and some in
the other. Whichever your philosophy, many of the
results — by definition — must be wrong.
IN the face of this long history
of disobedience, it is hard to take seriously the claim
by the Constitution’s defenders that we would be reduced
to a Hobbesian state of nature if we asserted our
freedom from this ancient text. Our sometimes flagrant
disregard of the Constitution has not produced chaos or
totalitarianism; on the contrary, it has helped us to
grow and prosper.
This is not to say that we
should disobey all constitutional commands. Freedom of
speech and religion, equal protection of the laws and
protections against governmental deprivation of life,
liberty or property are important, whether or not they
are in the Constitution. We should continue to follow
those requirements out of respect, not obligation.
Nor should we have a debate
about, for instance, how long the president’s term
should last or whether Congress should consist of two
houses. Some matters are better left settled, even if
not in exactly the way we favor. Nor, finally, should we
have an all-powerful president free to do whatever he
wants. Even without constitutional fealty, the president
would still be checked by Congress and by the states.
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.
What would change is
not the existence of these institutions, but the basis
on which they claim legitimacy. The president would have
to justify military action against Iran solely on the
merits, without shutting down the debate with a claim of
unchallengeable constitutional power as commander in
chief. Congress might well retain the power of the
purse, but this power would have to be defended on
contemporary policy grounds, not abstruse constitutional
doctrine. The Supreme Court could stop pretending that
its decisions protecting same-sex intimacy or limiting
affirmative action were rooted in constitutional text.
The deep-seated fear that such
disobedience would unravel our social fabric is mere
superstition. As we have seen, the country has
successfully survived numerous examples of
constitutional infidelity. And as we see now, the
failure of the Congress and the White House to agree has
already destabilized the country. Countries like Britain
and New Zealand have systems of parliamentary supremacy
and no written constitution, but are held together by
longstanding traditions, accepted modes of procedure and
engaged citizens. We, too, could draw on these
resources.
What has preserved our political
stability is not a poetic piece of parchment, but
entrenched institutions and habits of thought and, most
important, the sense that we are one nation and must
work out our differences. No one can predict in detail
what our system of government would look like if we
freed ourselves from the shackles of constitutional
obligation, and I harbor no illusions that any of this
will happen soon. But even if we can’t kick our
constitutional-law addiction, we can soften the habit.
If we acknowledged what should
be obvious — that much constitutional language is broad
enough to encompass an almost infinitely wide range of
positions — we might have a very different attitude
about the obligation to obey. It would become apparent
that people who disagree with us about the Constitution
are not violating a sacred text or our core commitments.
Instead, we are all invoking a common vocabulary to
express aspirations that, at the broadest level,
everyone can embrace. Of course, that does not mean that
people agree at the ground level. If we are not to
abandon constitutionalism entirely, then we might at
least understand it as a place for discussion, a demand
that we make a good-faith effort to understand the views
of others, rather than as a tool to force others to give
up their moral and political judgments.
If even this change is
impossible, perhaps the dream of a country ruled by “We
the people” is impossibly utopian. If so, we have to
give up on the claim that we are a self-governing people
who can settle our disagreements through mature and
tolerant debate. But before abandoning our heritage of
self-government, we ought to try extricating ourselves
from constitutional bondage so that we can give real
freedom a chance.
Louis
Michael Seidman, a professor of constitutional
law at Georgetown University, is the author
of the forthcoming book “On Constitutional
Disobedience.”
