The U.S. Constitution isn’t perfect, which is why those who drafted and ratified it also included provision for amending it. Still, there are some who think we should radically change it, or even abandon it all together. One must concede, simply as an abstract matter, that this might well be for the best. Who can say for sure that a different constitution would be worse than the one we have now? In any case, the Constitution we have now came from Philadelphia, not Sinai.
Yet it is hard to see how radically changing the Constitution would be wise, for one should not imagine that America could be what she is without it. And if America is on balance a good thing, then at least some credit goes to that remarkable law by which she is constituted.
Aristotle knew that the character of a people and the kind of government they had were intimately connected. The virtues and vices of the people shape the laws as surely as the laws shape their character. In short, a radical change in the laws governing a society is not only disruptive in the short term; it almost always results in a profound transformation of society itself.
America has always been propositional, as Lincoln had it; contingent not on some preexisting quality or history but on the ideas to which one was dedicated. America has no single creed, but almost everyone agrees that the content of the American Proposition, however one defines it, includes our Founding documents — the Constitution and the Declaration of Independence. These alone cannot explain America, but it is difficult to see how anyone could grasp America without them. Whatever America’s virtues or vices, the Constitution is an inextricable part of her identity.
Progressivism understands the relationship between law and culture, which is why Progressivism has always had an uneasy relationship with the Constitution, believing it an archaic law suited for outmoded ways of living. Progressivism takes an instrumental view of law, seeing it as a tool of the sovereign will — and therefore an instrument for driving “progress” — rather than a structure for ordering human affairs in accord with some extrinsic (e.g., natural) standard of justice.
The differences between a progressive view of law (and so of the Constitution) and the understanding of law that characterized the American founding were on display last week in an op-ed in the New York Times titled, “Let’s Give Up on the Constitution.” No doubt Georgetown Law Professor Louis Michael Seidman wrote the op-ed, in part, to sell books (he has a new one coming out on “Constitutional disobedience”) and so the language he uses is punchy and provocative. But Professor Seidman presumably also believes the things he writes and has given them serious thought.
Seidman’s case for throwing the Old Parchment over the side begins with the claim that the Constitution makes this country ungovernable:
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.
Our system is broken, Professor Seidman claims, but it need not be. The deference shown to the supreme law of the land is so much superstition. Only by overcoming that superstition can we become the nation we ought to be — or at least the nation Seidman prefers us to be.
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….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.
According to Seidman, our outmoded and slavish devotion to the Constitution prevents good things from happening (like sensible regulation of the economy) yet serves little positive purpose; we have “entrenched institutions and habits of thought” that make us who we are as Americans. In short, Seidman argues that “real freedom” is contingent upon our jettisoning the Constitution:
[P]erhaps 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.
Seidman’s arguments elicit several responses.
First is this: In his rush to blame the Constitution for the dysfunction of our politics, Seidman never considers the possibility that the problem isn’t an inadequate Constitution but a Leviathan of a federal government grown far beyond the reasonable capacities of any legal framework consistent with both justice and liberty. In other words, if Professor Seidman finds the current constitutional regime of the United States insufficient to the task of micro-managing a nation of 300+ million, perhaps the fault lies not with the Constitution but with the (relatively novel) supposition that the federal government should micro-manage 300+ million lives. (As I’ve said before, supposing that what works elsewhere will work here is an unreliable assumption.)
Second, lacking written constitutions, Britain and New Zealand may be held together by “longstanding traditions, accepted modes of procedure and engaged citizens,” but the longstanding traditions and accepted modes of procedure in America are inseparable from the Constitution. That’s not to say we couldn’t develop new modes and traditions for a new constitution, but surely a nation with radically different political traditions and accepted modes of procedure would be radically different than the America we have known. (Of course, that’s Seidman’s point…he wants a different America.)
Third, Seidman seems to think that because the Constitution has survived past violations that there is nothing to fear from violating it willy-nilly. His argument is as much an argument against the rule of law itself as it is against the Constitution. He doesn’t like the law as it is and, since he despairs of repairing it, he counsels disobedience-a sort of rule-of-what-works-regardless-of-what’s-legal. This so blatantly violates the basic principles of the rule of law that it’s hard to know where to begin.
Refusing to honor and recognize the limits of law does not make the law stronger or more effective as Seidman imagines. Rather, it erodes the law and prevents it from doing what it can. Why would a nation willing to disregard one constitution suddenly be willing to obey whatever law replaces it?
When we come to see the law primarily as a tool for achieving policy ends rather than a necessary (albeit insufficient) condition for justice, we have lost the essence of law. Again: our Constitution is not perfect; no human law is. But nor are the current crises the result of some obsequious devotion to the Constitution. Those who, like Professor Seidman, would disavow the law in order to pursue even the most honorable of ends would not save this nation but render it unrecognizable. It would be the end of America.
Stephen P. White is a fellow in Catholic Studies at the Ethics and Public Policy Center in Washington, D.C. and coordinator of the Tertio Millennio Seminar on the Free Society. The views expressed here are his own.