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Thu, 20 Mar 2014

Some time back I noted that what was then a common sentiment (I found it in an op-ed in the New York Times, which is proof of it being a common sentiment if anything is) about the Constitution seemed backwards to me. The claim was that we were getting into trouble about the "fiscal cliff" because we were too obsessed with following the Constitution; but as I showed in that post, the real problem was that we weren't following it enough.

Now I've come across a lecture given by Michael Karman at Johns Hopkins University on Constitution Day, 2010, entitled "A Skeptical View of Constitution Worship", which goes even further than the NYT op-ed did. My basic response is the same: the problem is not that we "worship" the Constitution, it's that we ignore it. But the lecture presents such a tempting target that I can't help going beyond that; so here goes.

I'll start with a key point that the lecturer doesn't appear to be aware of (or if he is, he's done a swell job of concealing it): we can amend the Constitution. For example, the lecturer bemoans the fact that the original Constitution allowed slavery, and even gave it legal protections:

[I]t's hard to celebrate a Constitution that explicitly guaranteed the return of fugitive slaves to their masters, protected the international slave trade for 20 years, and enhanced the South’s national political representation to reflect its slaveholding.

Well, we fixed that problem with the Thirteenth, Fourteenth, and Fifteenth Amendments. The lecturer also complains about the original Constitution being anti-democracy:

The Framers were trying to create a powerful national government that was as distant from popular control as possible: very long terms in office, large constituencies, indirect elections. They thought of democracy as rule by the mob. They didn't think poor people could be trusted with the suffrage. They didn't think women should vote.

We amended the Constitution to fix those things too: popular election of Senators, giving women the right to vote, prohibiting poll tax to remove a major roadblock to voting. The lecturer might feel, of course, that these reforms didn't go far enough: perhaps we need even more protection for voting rights; perhaps we should pass the Equal Rights Amendment to ensure that women's rights are respected. But why aren't the reforms we have made, by amending the Constitution, mentioned at all? Do they somehow not count?

Similarly, the lecturer complains about features of the Constitution that "still bind us", without appearing to be aware that we can amend those things too. (It's true that one thing he complains about, having two Senators for every State regardless of population, would be much harder to change, since there is an explicit provision about that.) But more than that, the lecturer appears to assume without question that whatever he thinks is a good idea, must in fact be a good idea, so if the Constitution makes it harder for us to do it, the Constitution must be bad.

For example, he complains that no foreign-born person can be President, and that the Electoral College is a bad idea. Well, guess what? If you think those things should be changed, propose an Amendment to change them. And then we can actually have a substantive debate about whether these changes would, in fact, be good for the country. Don't blame the Constitution for the fact that it makes you go through that laborious process instead of just dictating to everybody that whatever you think is a good idea is what we're going to do. There's a reason the Constitution is set up to make these kinds of changes hard: to protect us from ourselves. And judging by our performance when we disregard these protections, the Framers were quite right to try to put roadblocks in our way to prevent us from charging ahead to make changes whenever we feel like it.

In other words, the lecturer doesn't understand what the Constitution is really about. It's not about finding the "right" set of provisions and enforcing them on everyone. It's about finding a structure that lets people with very different ideas about what is "right" coexist peacefully in the same country, going about their business and not interfering with each other, by agreeing on a common set of basic guidelines that everyone can live with, and stopping there.

Which brings us to the lecturer's third point: we ignore the Constitution anyway. This is often true, as I argued myself in my previous post on this topic. However, unlike the lecturer, I view that as a bug, not a feature. And it doesn't make much sense to argue that following various Constitutional provisions is bad for the country, as the lecturer has just done in points 1 and 2, when you're also arguing that we don't follow the Constitution.

Which also brings us to the fourth point: the Supreme Court ignores the Constitution. I certainly agree with that; I've said the same thing myself. But once again, is this supposed to be a feature, or a bug? Is the right response to just admit that we ignore the Constitution, and discard it? Or is the right response to start actually taking it seriously? Which means that if we really have a problem with a Constitutional provision, because our values have changed from those of the Framers, we amend it, like the Framers explicitly told us to do?

Would it be worth it to do all that work? Well, that brings us back to point 0: how many of our freedoms, which the writer justifiably admires (I do too), do we owe to the Constitution? Let's see:

It's a wonderful thing that one can criticize the president--even call him a socialist or a coddler of terrorists, if you like--and not worry about being arrested for it.

In other words, freedom of speech. First Amendment: check.

It's a great thing that one can pursue one's own religious beliefs with a great deal of tolerance...

First Amendment again: check.

...and that a black man can be president of a country that held blacks in slavery just 150 years ago and that still had an entrenched system of white supremacy until roughly 50 years ago.

We already covered that one above: check. (And a case can be made that the reason it took so long to overcome Jim Crow after the Thirteenth, Fourteenth, and Fifteenth Amendments were passed was that we ignore the Constitution when we feel like it. If we had really taken those Amendments seriously, we might have had a black President sooner.)

It's a great thing that in America a woman came very close to being elected president of the United States two years ago and that one probably will win such an election sometime fairly soon.

We covered giving women the right to vote above too: check. (And I'm all in favor of a woman President as long as it's not Hillary Clinton.)

I personally think it's a wonderful thing that in many states gay and lesbian couples can get married just like straight couples, and that, I would predict, they will be able to do so in most of the country within another decade or so.

Ok, you've got me on this one: as Justice Scalia is fond of pointing out, the Constitution says nothing about marriage.

Oh, wait: what's that in the Fourteenth Amendment? "Equal protection of the laws"? I take it back: the Constitution has this one covered too. As I've blogged before.

The funny part is that the lecturer gets things almost right at the end:

In the end, we, the American people, determine what sort of country we live in--

Right on! But then he muffs it:

--the Constitution and the courts play a relatively marginal role in that process.

And as we've seen, when that does happen, the process does not work. But then it gets even better: we have a statement that is a truth and a deeply flawed misunderstanding at the same time:

To paraphrase the great jurist with the greatest of names--the Honorable Learned Hand--no constitution and no court are going to rescue us from white supremacy or sexism or homophobia or Japanese American internment or FBI profiling of Arabs and Muslims.

This is true as a matter of history: as we've seen, the Constitution and the Supreme Court did not rescue us from many bad things. But that's our fault. We chose to ignore the Constitution, and chose not to hold our elected representatives and the Supreme Court accountable when they ignored the Constitution, and indeed, we got all these bad things. What would have happened if we had upheld the Constitution, and voted people out of office when they ignored it, and protested when the Court failed to uphold it? Unfortunately we can't go back and find out what would have happened in the past; but we could at least give it a try for the future.

Posted at 23:58   |   Category: rants   |   Tags: politics   |   Permalink
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