The unsacred US Constitution

According to Michael Klarman of Harvard.

I´m linking to this because (a) it´s a great piece of iconoclasm (b) Balkinization has turned off comments on the post.

So open thread. Play nice.

Author: James Wimberley

James Wimberley (b. 1946, an Englishman raised in the Channel Islands. three adult children) is a former career international bureaucrat with the Council of Europe in Strasbourg. His main achievements there were the Lisbon Convention on recognition of qualifications and the Kosovo law on school education. He retired in 2006 to a little white house in Andalucia, His first wife Patricia Morris died in 2009 after a long illness. He remarried in 2011. to the former Brazilian TV actress Lu Mendonça. The cat overlords are now three. I suppose I've been invited to join real scholars on the list because my skills, acquired in a decade of technical assistance work in eastern Europe, include being able to ask faux-naïf questions like the exotic Persians and Chinese of eighteenth-century philosophical fiction. So I'm quite comfortable in the role of country-cousin blogger with a European perspective. The other specialised skill I learnt was making toasts with a moral in the course of drunken Caucasian banquets. I'm open to expenses-paid offers to retell Noah the great Armenian and Columbus, the orange, and university reform in Georgia. James Wimberley's occasional publications on the web

19 thoughts on “The unsacred US Constitution”

  1. I don't worship the Constitution. I'll frankly say that it has glaring deficiencies. Which should be removed by amendment, not by pretending that it means something other than what it says

    My view is best summed up by that old joke: "The Constitution isn't perfect, but it's better than what we have now."

    I think constitutional government and the rule of law are very important values. And the Constitution, whatever it's deficiencies, is the constitution we happen to have at the moment. We either enforce it, or we lack constitutional government and the rule of law.

    Pretending that it's a different, better, constitution is no substitute. In fact, it's far worse, because it requires systematic double-think be institutionalized. And those of you who think that we can pretend we have a different constitution, and make everything work out, are fooling yourselves.

    We should enforce the constitution we have, amend it as needed, and thus be enabled to have honest government by people who don't have to be dishonest due to the requirement of upholding a systematic lie.

  2. Brett, the problem with your view is that it presumes that it is clear what "the constitution we have" says. Phases such as "equal protection of the laws" do not say anything until they are interpreted in particular cases, and one person's reasonable interpretation of the phrase is another's pretending that we have a different constitution.

  3. From the fact that "the Constitution" is a noun, it does not follow that the Constitution is a thing.

    Is that approximately correct, Henry?

  4. Ed, would you explain what your meaning? I have no problem with regarding the Constitution as a "thing," or, more specifically, a document containing various prescriptions and prohibitions that, like all language, must be placed in context and interpreted to have meaning. Even apparently explicit statements, such as that the President must be at least 35 years old, are subject to interpretation. Should we construe that provision literally? After all, we do not take literally that Congress shall make no law abridging the freedom of speech; I rightfully may be punished if I threaten to murder you, for example. I find helpful Ronald Dworkin's distinction between "concepts" and "conceptions." Equal protection of the laws is a concept that binds us. Separate but equal may have been the framers' conception of that concept, but it does not bind us.

  5. At least as the issue of Brown is concerned, it's certainly is not the case that no litigation was brought before the courts regarding segregation. Brown is the culmination of decades of litigation that set the stage for Brown. The state of public opinion is certainly a factor, but Klarman dismisses the groundwork laid in both legal, cultural, and political areans to set the stage for Brown and other key landmarks of desegregation. And I think in that case, Brown is much further ahead than public opinion. And I suspect this same argument would apply to many changes he cites. He's being a little too cute by half in this speech on some of his arguments.

  6. JFTR, it is not true that, as Klarman writes:

    Even in the South, dramatic changes in racial attitudes and practices had taken place in the decade before Brown: …. minor league baseball teams, even in Deep South cities like Birmingham and Montgomery, Alabama were integrating their squads.

    The Birmingham Barons, renamed the Athletics, were not integrated until 1964. I would be surprised to learn that things were much different in Montgomery. More broadly, I think Klarman overstates racial progress in the pre-Brown South by quite a lot. My own opinion, having lived there, is that, outside of Atlanta perhaps, there was not much progress before the 1964 Civil Rights Act and the 1965 Voting Rights Act.

    This somewhat OT, of course, and I hope it doesn't derail the discussion, especially since I agree with much of what Klarman says.

  7. Henry:

    “Things” can be considered static and concrete; you can put them in a storage shed and come back for them later and find them unchanged. But “processes” are different; they change again and again people act on them and interpret them.

    Schoolchildren are taught that a noun is the name of a person, place, or thing. Gregory Bateson (can’t put my finger on the passage) says somewhere that schools teach nonsense, because they induce habits of thought that seduce adults into thinking that processes are more thing-like than is warranted.

    Scalia seems to think that the Constitution is a thing; other seem to think it is a process.

    Hope this helps. I just couldn’t resist being a bit cryptic.

  8. "Brett, the problem with your view is that it presumes that it is clear what “the constitution we have” says. Phases such as “equal protection of the laws” do not say anything until they are interpreted in particular cases, and one person’s reasonable interpretation of the phrase is another’s pretending that we have a different constitution."

    You know, that would be a good point, if the nargin of constitutional argumentation were located around what "equal protection of the laws" meant, rather than whether, for instance, there's anything AT ALL that can't be regulated as "interstate commerce", be it ever so local, or removed from commerce. Or whether Congress can pass a statute giving non-states voting seats in Congress.

    There's not much point in arguing that shades of grey exist when you're confronted with a magnesium flare against carbon black.

  9. Just wondering why Klarman says that to amend the consitutional requirement that every state have exactly two Senators would require the consent of every state. Difficult as it may well be, I thought only three-quarters of the states need to approve an amendment.

  10. Ed,

    That passage is almost certainly in Bateson's Steps to an Ecology of Mind, and a likely place for it are the Metalogues at the front of the book.

  11. To answer Mel Brender's question: Article V, which specifies the amendment process, also states: "no State, without its Consent, shall be deprived of its equal Suffrage in the Senate". This provision seems to put State representation in the Senate beyond the general requirement that 3/4s of the states can consent to the amendment process.

    Again though, its not clear why a two-step amendment process wouldn't work: Step 1. Amend to eliminate the consent privilege of individual states; Step 2. modify Senate representation.

  12. I don't see much to admire in the Klarman rant: it seems to me to be a disjointed argument.

    A degree of "constitution worship" is a natural aspect of expressions of legitimacy, which every functioning constitution needs. That's actually a good thing.

    What other commenters have said about process is critical. Institutional structures function to generate process: a continual playing of the political game. The great strength of the U.S. Constitution has been its openness to adaptation and extension through re-interpretation.

    The fact that years of sustained litigation can bring about both changes in public opinion and changes in law provides an institutional path for social evolution and change. In constrast to the amendment process, constitutional review provides a rationale for a judicial process that can, sometimes, avoid the hold-up problem inherent in super-majority requirements in legislatures. It is has worked well channelling social and political evolution in many cases. That the social energy for such change is transmitted by the force of a flowing liquid is not an argument that the channels are unnecessary for the hydraulics to have their day.

    The U.S. Constitution had and has many manifest defects — some of which were ridiculously dysfunctional, like the original process for selecting the President in the Electoral College (which resulted in the crisis of 1800 with Burr and Jefferson receiving the same number of votes), or the current process for removing the President temporarily in case of physical or mental disability.

    Slavery was certainly a defect in the small 'c' constitution of the United States, though I think Klarman's claims about the written Constitution's concessions to slavery are way overdrawn.

    The defect inherent in the Senate, and its unamendable nature, apparently immune to both the regular legislative process of amendment and to the more plastic process of judicial review, is pretty serious. It does seem to bias the Senate and make it an unrepresentative institution. (The Senate's filibuster rule compounds the problem.) But, it also makes the revision of State boundaries and jurisdictions almost impossible, which is a separate and often urgent problem. Wyoming's over-representation in the Senate is certainly a problem. But, so is Wyoming's square-ness, with its boundaries following longitude and latitude though extremely mountainous terrian — it's absolutely an insane way to "design" a government domain in that geography.

  13. The issue of state suffrage in the Senate is one indicator of the time in which the Constitution was written, when citizens identified with their states more than with their country (which was just a loose confederation of states): people considered themselves Virginians first and Americans second.

    There may be some in the Tea Party who have similar feelings, but they tend to wave American flags and/or “Don’t Tread On Me” flags, not state flags, at their rallies.

    Has anyone looked at the distribution of the flags at these rallies? Has anyone counted the state flags at local rallies?

    Or is this one more sign of Tea Party ignorance/hypocrisy?

  14. It is interesting that here and in other posts the libertarians propose a binary worldview. There are only two results: 1 or 0. Things are either black or they are white.

    "We either enforce it, or we lack constitutional government and the rule of law."

    It is all or nothing, for if even the slightest bit of the Constitution isn't perfectly enforced then the entire thing is discarded.

    This goes beyond empiricism, creating your own reality, or what is best. It is a rather sad worldview in my opinion.

  15. The cognitive dissonance of Prof. Klarman's piece is stunning.

    On one hand, under heading 1, he complains that the Framers' constittution was not so admirable; it was a "conservative, aristocratic response to what they perceived as the excesses of democracy," and under heading 2, points out "specific parts of the Constitution that still bindf us and are indefensible and indeed pretty ridiculous." He identifies them as such because they are either not apportioned to population, and therefore undemocratic: two Senators per state, regardless of population, and the Electoral College; or nativist, and hence discriminatory, exemplified by the native-birth requirement for the presidency.

    On the other hand, in illustrating the way in which the Framers' constitution is not observed by the current government, he rightly remarks that "The Framers thought Congress would legislate, but instead it passes vague, almost meaningless statutes, and turns over interpretation to agencies. Yet the [Supreme] Couty hasn't struck down a law on so-called "nondelegation" grounds for over a century." This does not seem to be a complaint against the Constitution, which we can hardly fault Congress and the courts for failing to observe. Neither is it a criticism of the failure of these bodies to observe it. It is offered instead merely as edivence that the Constitutiom is "largely irrelevant to current political arrangements."

    As a matter of fact, the phenomenon Klarman describes goes considerably farther than "turn[ing] over interpretation to agencies." What Congress has done is in fact to abdicate a significant chunk of the legislative power to bureaucratic agencies and commissions that are nominally part of the executive branch, but are in fact largely autonomous unelected and unanswerable authorities. They in effect rule by edict or decree, publishing proposed regulations, which have the force of law, in the Federal Register. As lip service to the concept of democracy, a short comment period of perhaps 90 days may be allowed, after which the comments received are ignored, and the proposed regulation promulgated as permanent. Moreover, these bodies are delegated both enforcement and judicial powers. Thus an individual or business subject to such an agency's jurisdiction may be haled by a functionary of the agency into an administrative tribunal run by the agency, which decides whether the respondent is guilty, and if so exacts a fine or penalty. In some cases the agency is allowed to keep the "profits of justice" for its own use, outside the ordinary process of legislative appropriations. Such a proceeding is not even imperfectly democratic in its operation, as (for example) the Senate or the Electoral College are. It is straightforwardly undemocratic. Prof. Klarman seems undisturbed by this

    Just as the elected legislature has abdicated the detail of legislation to autonomous and undemocratic bureaucracy, it has abandoned many, if not most, of the great popularly divisive issues to the least democratic branch of government provided by the Constitution – the Federal courts. Thus, such issues as the racial quotas and preferences summarized as "affirmative action,' the legality of homosexual behavior and the definition of marriage, the legality of abortion, or the ability of individual citizens to possess firearms and use them for their personal defense, or what constitutes the "establishment of religion," are ultimately not decided by the people's elected representatives, but by judges appointed for life, answerable to no one for their decisions (and hence unswayed by public opinion or sentiment). Prof. Klarman derides Bowers v. Hardwick (1986) in which the Supreme Court upheld a sodomy law passed by a democratically-elected state legislature, and appears to approve Lawrence v. Texas ((2003), which struck down a similar law that also was passed by a democratically-elected state legislature. His only remark about the latter decision is that many states had already repealed such laws, and most of the others had allowed them to fall into desuetude.

    What, then, is Prof. Klarman's real view about the desirability of democracy? Is it that he prefers no democracy at all – rule by bureaucratic decree or court order – to the imperfect democracy of the U.S. Senate or Electoral College? Does he justify this on the basis of egalitarianism – that it is better for all to be equally subject to the whims of unelected mandarins, than it is for some to be better represented than others?

    Or is it just that for him, the ends justify the means, and he prefers the results to date of peremptory government by agencies and courts, over those of democratic institutions (whether more or less proportioned to the constituencies they represent), because they too often run contrary to his preferences?

  16. Correction to the above: in para. 3, the first sentence after the quotation should read: This does not seem to be a complaint against the Constitution, which we can hardly fault because of the failure of Congress and the courts to observe it.

  17. Given the links so graciously provided by "Wonks Anonymous" in this and previous threads, is it possible that "Wonks Anonymous" is a Bryan Caplan sock puppet? I followed one of those links in a previous thread and got to a lengthy 2002 essay by somebody else that I swear would be a theoretical underpinning for all of the subsequent, uh, interesting interpretations of 'liberty' by Caplan. The 2002 essay had a very interesting comparison of "Europe" to the "US", that, uh, is not valid, these days.

    Don't want to derail the discussion here. Just noting the content of the service that "Wonks Anonymous" provides.

  18. I have a lot of respect for Klarman as a scholar –who doesn't?– but whatever the opposite of constitution-worship is, that's how I'd characterize his view. In his blog, he makes a number of points that Dahl, Levinson, and others have made before him and oddly, he seems to be blaming the Court for notorious cases like Plessy v. Ferguson and Korematsu when in fact, all the Cout did was to uphold racially discriminatory laws that were already in existence; it's not as if the Court created them i the first place.

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