Happy Constitution Day. Today is the day that the delegates to the Constitutional Convention in Philadelphia signed the Constitution and submitted it to Congress, which transferred the document to the States for ratification. Just like how you didn’t ask to be born, but are (one hopes) glad your parents imposed life upon you, you should be profoundly grateful for the birth of this document, whose creators did not ask your permission – and likely did not represent your interests – but nonetheless imposed rights upon you.
It has become fashionable, for reasons both thoughtful and reflexive, to deride the Constitution and shun attempts to remain faithful to its text. After all, the Constitution was created and ratified by a bunch of dead, white men, some of whom owned slaves. (The 13th, 14th, and 15th Amendments were a start to remedying that moral blight and hypocrisy.) Plus, the document, by design, is undemocratic; it limits the powers of the federal and state governments and provides individuals rights as against democratic legislation. There have been calls, even by serious scholars, to do away with the Constitution, or to pack the Supreme Court to achieve a reading of the Constitution more sympathetic to certain preferred judicial outcomes. In honor of Constitution Day, here are just a few reasons why the dead hands of our Framers should still be guiding our lives today.
- Constitutional culture has benefits over political culture:
The judiciary, the ultimate guardians of the Constitution since Marbury v. Madison officially established judicial review, is the most trusted and least unpopular branch of government. Perhaps this is because the norms created around legal argumentation require rigorous and fair reasoning, collegiality, and true appreciation of an opponent’s position. Deciding what the Constitution means involves a complex algorithm of adherence to precedent, adaptation of the text to new facts and circumstances, deference to the democracy, and principled interpretation and application of our individual rights-protecting Constitution. Different judges and laypeople apply this algorithm differently, but this still produces mostly reasonable, and reasoned, outcomes. The same First Amendment that required a private, Irish-American parade to be permitted to exclude an LGBTQ float protected a Gay Pride parade from being forced to include Gays for Trump. Even if you dislike one outcome or another, the symmetry of the process is undeniable.
Most judges, no matter how “activist,” conceive of themselves as following the law, which necessitates analogical reasoning based on pre-determined principles that apply to all equally. Just compare that to – with all due respect – the grotesque spectacle that is partisan politics in America today, with its populist pandering and hyperbole, rampant hypocrisy, interest-group favoritism, and plummeting norms of civility and collegiality. Politics does not have to be this way, and has its benefits over legal culture as well, but the built-in legal norms are good ones.
- Our rights are ones most people still want:
Doing away with the Constitution would seriously undermine the rights most people still want. You may not appreciate the Second Amendment, but I assume you feel pretty good about the Fourth. Or vice versa. You may not like Citizens United, which overturned campaign finance legislation that was prohibiting the distribution of a political documentary by a non-profit corporation, but you may love Texas v. Johnson, which overturned a statute banning flag desecration. Or vice versa. Both of those cases were controversial, 5-4 decisions. I think both of them were decided correctly, but even if you don’t, we have to take the good with the bad, or we will be left fairly adrift. At least now, we can still cling to a document that outlines our fundamental rights, and places important limitations on our government.
We cannot read any given right away because the text and its original public meaning still matter, which brings me to my last point.
- The document endures while adapting:
Yes, the Commerce Clause and the Eleventh Amendment are now read in ways that may seem contrary to their original purposes. Even the First Amendment has likely been given a more expansive reading than originally intended – but perhaps we are now more faithful to the text and less faithful to the original purpose.
No one has a monopoly on discovering the most perfect reading of the Constitution, or creating the most coherent constitutional doctrine. The Supreme Court has evolved in its personnel and their approaches to Constitutional interpretation, and our rights have evolved – often pendulously – with those changes. I think we should celebrate this diversity in approach, while still holding judges accountable for principled, coherent, rational interpretations of the law that do not simply match their policy preferences or desired outcomes.
The Constitution articulates presumptively fundamental rights, and outlines an ingenious structure for government, but it is subject to change. The first eight Amendments originally applied only to the federal government. After the Civil War, the Fourteenth Amendment incorporated these Amendments against the States. This was a change for the better, both in guaranteeing all citizens the equal protection of the laws and in incorporating the Bill of Rights. We may be due for a new, major change to the Constitution, but the document itself will endure. So long as it does, I believe our nation will endure as well.