What is “Constitutional”?
There is a great deal of comfort in the notion that there is a right answer, a constitutional answer, that will be arrived at if the proper methodologies are applied. However, this is a false comfort predicated on an imagined past filled with Framers who were part of a hive mind.
Now, I fully understand the impulse towards some type of originalism or at least the idea that there is a correct answer to every question. Indeed, for some time I held to a type of originalist thinking. However, knowledge can be, as they say, a dangerous thing because the more knowledge one has on a subject, the harder it can be to maintain deeply held, even cherished, positions.
Two early cracks in my thinking on this subject were the Declaration of Independence and Equal Protection Clause of the 14th Amendment. Specifically, it is difficult to square the way that white males in 1776 would have understood the phrase “all men are created equal” and then argue for an originalist application of the concept in the 21st Century (I will expound further on that in another post). Likewise, the 14th Amendment states that citizens should receive equal protection under the law, but the original intent of the phrase clearly was focused on males and, indeed, the Supreme Court did not apply the clause to women until 1971. However, our views on citizenship and equality have changed quite a bit since the 1860s (indeed, even since 1971). To hold to fully originalist position on the equal protection clause would require an amendment to the constitution to provide equal protection to women. Indeed, that this the position of Justice Scalia.* However, I think that when it comes to basic rights that we have to take into consideration evolving views of things like citizenship, and so changing views on gender, race, and sexuality have to be incorporated into our understanding of these constitutional provisions.
Reading histories** and biographies about the founding era also goes a long way towards disabusing oneself of the notion that The Framers ought to be viewed as an intellectual monolith.
Then there is the project I have been working on for about two and half years (and which is almost done, finally!) which looks at the US constitutional order in comparison with 29 other democratic countries . This project involved, amongst other things, reading through the constitutions of all 30 democracies, but also paying special attention to the US founding, including a very careful reading of the Federalist Papers, various antifederalist writings, Madison’s notes on the debates in the convention, other contemporary writings on the convention, and so forth.
One thing becomes clear: there is no perfect answer to the question “what is constitutional?” To be more specific, here are some things that are incontrovertibly true that makes appeals to perfect “constitutional” answers to given questions:
1. The Framers themselves did not agree on what the words on the page meant, or what the implications of those words would be even if they were in agreement over their meaning. This alone make original intent almost impossible to divine.
2. Much of what was designed did not work as intended. Several examples immediately come to mind:
- Many of the Framers believed that there would be frequent, often dramatic changes to the composition of the House of Representatives, since it was the people’s house, and the one prone to being influenced by the passions of the moment.
- They did not understand, or foresee, political parties and their roles in both elections and legislation.
- The Electoral College (a mechanism that they thought would frequently lead to the House choosing the president) never functioned as designed.
3. The Framers were politicians and made arguments to make political cases, which required compromising principles (a truism about the political regardless of the era under discussion). A case in point: The Federalist Papers. Hamilton and Madison were not strong political allies and had differing views of government, but they both wanted the constitution ratified. Therefore, they worked together on the Papers. Madison-as-Publius argued in favor aspects of the constitution that he argued against at the convention and that he critiques in other venues after the Constitution was written.
4. Not only were they politicians after the convention, but they were politicians before and during the convention. They had interests and goals and they cut deals and made compromises to produce the constitution. It should never be forgotten that the Constitution was born not in a miracle of agree over Truth, but instead was born in political compromise. And compromise leads to ambiguity rather than crystal clear truth. Compromise muddles. Compromise often puts off conflict until later (see, for example, the Civil War).
5. The words simply do not mean the same to readers now as they did then. Not only has the language itself changed, but the way we comprehend the world is different. Regardless of one’s view of the ACA, the fact of the matter is that the word “commerce” means something different to a person in 2012 than it did to a person in 1787. Consider the following terms and do a quick mental trip through time: “war,” “army,” “arms,” “Commander-in-Chief,” and so forth. Beyond the specific words and their meanings over time, there is much in the Constitution that is simply vague. What, pray tell, is (to pick a big one) “the general welfare”?
We can further see these types of issues into action by simply looking at the history of Constitutional interpretation. Any number of key concepts have been interpreted differently over time including, but not limited to, the meaning of free speech, commerce, and equal protection.
So, if the Constitution does not provide a text that is full of truth that we strive to comprehend, what does it actually provide? It provides a set of rules and structures that constrain political activity. It does not guarantee outcomes. Further, it sets up a struggle amongst power actors who are seeking to create certain outcomes. For example, there is no perfect answer to the question “Is the individual mandate constitutional?”—instead the answer can only be what the political process produces.
Constitutions establish the rules of the game and then the players have to play. Constitutions tell us if we are playing American football, Canadian football, or soccer. These are constraints. but the players have to figure out how they will play the games in question.
One thing that reading other constitutions demonstrates, especially when we are talking about well-functioning, long-standing democracies*** is that the US is less unique in terms of functioning constitutional order that both constrains political actors and protects fundamental liberties than Americans often pretend. (As an aside, I was interviewed last summer on a Florida radio station on this general topic and the host was surprised when I told him that most other constitutions have the same sorts of protections for basic liberties that we have in the Bill of Rights.)
In short, I think we make a mistake in assuming (and arguing) like there is a perfectly right answer to the question of what is “constitutional” and, further in forgetting that the main function of the Constitution is not to reflect timeless precepts, but rather is there to create the arena in which politics takes place. Indeed, as I have argued before, this is the true meaning of the concept of “limited government”—the fact that there are established parameters that constrain political power under known rules of activity, not that the government is ultimately limited in terms of a specific policy outcome.
Ultimately, the constraints on outcomes are first determined by the structure of the game, and then by the politicians and practical politics of the day, not by the abstract. To wit: if Ted Kennedy had not died when he did, we would have had a different bill, ultimately, because the Democrats could have refined the bill by going back and forth between the chambers (which was the plan until they lost their 60 votes in the Senate). Or, if Ruth Bader Ginsburg had retired during the Bush administration we might be talking now about the Scalia majority opinion, rather than the dissent. And in that alternate universe, the mandate would be unconstitutional.
Putting all this in a nutshell: the Constitution is not holy writ that contains revealed truth, and therefore the answer to the question of constitutionality is one of power and politics, not perfect truth.
We can all agree that “Congress shall make no law respecting…freedom of speech” or that Congress can regulate “interstate commerce” but once we all agree that the document says these things and they bind us in some way, the fight it still on regarding the application and meaning of the words–and that fight takes places in the context of a bicameral legislature, an executive veto pen, a Supreme Court with judicial review, and federalism.
*In a January 2011 interview, Scalia said:
Certainly the Constitution does not require discrimination on the basis of sex. The only issue is whether it prohibits it. It doesn’t. Nobody ever thought that that’s what it meant. Nobody ever voted for that. If the current society wants to outlaw discrimination by sex, hey we have things called legislatures, and they enact things called laws. You don’t need a constitution to keep things up-to-date. All you need is a legislature and a ballot box. You don’t like the death penalty anymore, that’s fine. You want a right to abortion? There’s nothing in the Constitution about that. But that doesn’t mean you cannot prohibit it. Persuade your fellow citizens it’s a good idea and pass a law. That’s what democracy is all about. It’s not about nine superannuated judges who have been there too long, imposing these demands on society.
**An excellent example of this that I would recommend is a book I am currently reading: Ratification: The People Debate the Constitution, 1787-1788 by MIT historian Pauline Maier.
***For example: Belgium (1831), Netherlands (1848), Canada (1867), Australia (1901).