"Whenever I go into a restaurant, I order both a chicken and an egg to see which comes first"

Thursday, July 5, 2012

Do We Need The Constitution?

E.J. Dionne has written an interesting article in the Washington Post (7.5.12) questioning the role of the Constitution and the Supreme Court as final arbiters of political issues.  Are we focusing too much on parsing the Constitution to determine the intention of the Founding Fathers, when we could be addressing issues from a more practical perspective.  Rather than wait for the august members of the Supreme Court to decide whether Obamacare is constitutional, should we not have simply paid more attention to whether or not it made sense?

It’s entirely appropriate that the week of our July Fourth celebrations should coincide with a moment when the Supreme Court’s health-care decision has prompted intense debate over the purpose of our government and what the Constitution allows it to do.
We are a more philosophical people than we give ourselves credit for. Constitutional questions enter the political conversation in the United States more than in most countries because our diverse nation is bound by our founding principles, not by blood, race or ethnicity.
This has advantages and disadvantages. The biggest advantages are our openness and the fact that we tend to argue on the basis of high principles. The biggest disadvantage is that differences over policy are often disguised as differences over whether a preferred choice is constitutional or not. When we should be addressing pragmatic questions — Will this approach work? Will it solve the problem it’s designed to solve? Is this a problem government should do something about? — we instead fall back on rather abstract discussions of whether a given idea violates the Constitution.
The debate over the role of the Supreme Court is not new.  Criticisms have come from both the Left and the Right that it is either too interventionist and meddling or not enough. The very fact that the Justices are political appointees and usually vote close to the philosophy of the President who appointed them is evidence enough that they most definitely are political and that there is no such thing as a literal, ‘originalist’, strict constructionist interpretation of the Constitution. 

The issue is whether a small group of Constitutional lawyers should be deciding issues that really belong in the public debate.  The classic example is Roe vs. Wade.  Conservative analysts have said that there is nothing in the Constitution that guarantees the ‘right’ to abortion; and more importantly such an important decision, relying as it does on concepts of morality, religious doctrine, and faith more than any simple, objective fact, should never be decided narrowly by the few, but by the many.  In other words, the issue of abortion rights should be debated and decided in the Congress of the United States.

Similarly, why should the Supreme Court decide something the people could decide – i.e. should citizens be obliged to buy health care?  Why is it important to decipher original meaning from the words of the Constitution when the words of popular debate would suffice?
Moreover, it is dangerous to turn the Founders into quasi-religious prophets who produced a text more like the Bible or the Talmud. It’s neither. It is a governing document that was the product of compromises and arguments. “Historians today can recognize the extraordinary character of the Founding Fathers,” wrote Gordon Wood, one of the premier contemporary scholars of the founding era, while acknowledging that they had “no special divine insight into politics” and that they were “as enmeshed in historical circumstances as we are.”
On the other hand, the Constitution has set forth the Bill of Rights, the foundation for law and governance in the nation.  The Founding Fathers understood that it was important to codify these rights, make them universal, and binding – that is, to eliminate almost all political debate concerning them.  They would not be subject to adaptation, change, or even refusal by individual states.  They were immutable and expressing the very spirit of the nation.  Over the last 250 years they have become as much a symbol of America and a defining statement as a set of legal principles upon which laws could be based.  It is a good thing, therefore, to start with the principle that there is such a thing as freedom of assembly, or religion, or expression and then debate, within a contemporary context, how far that right should apply.   The Constitution, then, is a philosophical anchor which restrains the political process and the possible anarchy that could result from a contentious free-for-all.

I was in Poland shortly after the fall of the Soviet Union, and the country was writing a new constitution.  One of the rights in their American-style Bill of Rights was the ‘right to work’.  I asked where this right came from, why it was a right not simply a political ideal, who would guarantee this right, etc.?  Part of the reasoning, of course, came from Communism although no one of the new democratic leaders would admit it.  There was no right to capital, for example, although the country was turning sharply towards the conservative economics of Balcerowicz and Jeffrey Sachs.  This experience made me reflect on our Bill of Rights and where they originated. The answer, of course, was from God.  Ours were ‘inalienable’ rights endowed by our Creator.  Our new nation and the Constitution which embodied the religious and social principles of the 18th Century was based on religious philosophy.

The Constitution, therefore, is not just an archaic document which loses relevance each decade; it is the embodiment of all that is America.  It provides the moral principles, the religious foundation, and a secular sanity, which prevails in even the worst of times.  We in the early part of the 21st Century have lost our moral and ethical way.  There is, for example, little respect for Jefferson’s conception of the ‘pursuit of happiness’ as a higher virtue, one far removed from more venal concerns with pleasure and individual well-being.  The Founding Fathers were concerned both with liberty and individualism and creating a cohesive body politic, and the remarkable compromises necessary to create the Constitution showed how then, as now, political debate is part of the creation and maintenance of a democracy. 

Dionne, however, seems persuaded that our respect for the Constitution has become slavish and counter to our more important democratic principles.  He observes that even the Founding Fathers would be surprised how far we have taken the fealty and obeisance:
Recently, University of Texas law professor Sanford Levinson pointed me to Madison’s lovely words in Federalist No. 14. “Is it not the glory of the people of America,” Madison asked, “that, whilst they have paid a decent regard to the opinions of former times and other nations, they have not suffered a blind veneration for antiquity, for custom, or for names, to overrule the suggestions of their own good sense, the knowledge of their own situation, and the lessons of their own experience?”
The Founders would no doubt be gratified that we still care so passionately about their work. But they might be quite surprised to learn how much of our health-care debate focused on a careful parsing of what the Constitution’s clauses on regulating commerce and levying taxes allowed us to do to solve a problem that would have been unknown to them. We would be truer to the Founders’ intentions and spirit if we followed Madison in having more confidence in our own good sense and our knowledge of our own situation.
As much as I disagree with many of the Supreme Court decisions in recent years, I was pleased with decisions of earlier courts, especially on civil rights, protection of civil liberties, and the promotion of equality.  These decisions, I felt, were both respectful of the Constitution and reflective of modern reality.  The political nature of the Court will never go away – it is a human institution, and human beings are, always have been, and always will be political by nature. There will always be an ebb and flow of conservative and liberal opinions that will necessarily reflect the mood of the country; and yet at the same time, the anchor will always be there.  It will remain a moral and ethical touchstone, and more than anything else, such a principled document must exist in an increasingly venal and diffident world. Dionne concludes:
The first word of the Constitution is “we,” and its purposes include establishing justice and promoting the general welfare. Before we expend enormous energy deciding how many angels can dance on the head of the commerce clause, we would usefully keep in mind the broader objectives of our great experiment.
Dionne is right in criticizing the Court for its academic and esoteric deliberations; but many of the great issues concerning civil liberties have been adjudicated, and what is left is a debate on whether or not a city hall can display a manger at Christmas time, or in a recent decision whether lying about your war record is protected speech.  Just as many issues, however, are in play.  The question about whether free speech extends to corporations and their advertising or was meant to be about individual expression is an important one, and decisions concerning it are sure to tip the balance of political and economic power and influence.

The issue is only this: shouldn’t these issues be debated in a public arena and be left to the democratic, electoral process? Or what is the balance between important high court deliberations on rights and and the normal political debates of a vibrant democracy?


  1. For those who DO concern themselves with constitutionality, however, quite apart from the Supreme Court's rather strained rationale -- let's start with a quote Rick Ungar at Forbes Magazine:

    "In July of 1798, Congress passed – and President John Adams signed - “An Act for the Relief of Sick and Disabled Seamen.” The law authorized the creation of a government-operated marine hospital service and mandated that all privately employed seamen be required to purchase health care insurance. [Sailors could not be employed if they did not pay the health insurance tax. This program was later extended to lake and riverboat sailors, as well. ...]

    Keep in mind that the 5th Congress did not really need to struggle over the intentions of the drafters of the Constitutions in creating this Act as many of its members WERE the drafters of the Constitution."

    So much for claims that an individual mandate requiring the purchase of health insurance is unconstitutional.

    (The relevant article is available online at:
    http://www.forbes.com/sites/rickungar/2011/01/17/congress-passes-socialized-medicine-and-mandates-health-insurance-in-1798/ ) and commented upon at http://voices.washingtonpost.com/plum-line/2011/01/founding_fathers_favored_gover.html

  2. Oh, and for those who are willing to discard constitutionality as a test, and go with the 'what makes sense' discussion, we might defer to the venerable Mr. Benjamin Franklin.

    Although as a general rule, he wisely believed the poor were more likely to rise out of poverty without benefit of 'welfare,' and to be far better motivated to find work if unassisted, this strict impulse did NOT extend to his conclusions on health care.

    In 1751, Ben Franklin championed the building of a public hospital.  Franklin brought a skeptical legislature to the table, bargaining his way to use public money to build what would become Pennsylvania Hospital.

    "Franklin proposed an institution that would provide -- 'free of charge' -- the finest health care to everybody, 'whether inhabitants of the province or strangers,' even to the 'poor diseased foreigners"' (referring to the immigrants of German stock that the colonials tended to disparage and discriminate).

    Countering the Assembly's insistence that the hospital be built only with private donations, Franklin said:

    "That won't work, it will never be enough, good health care costs a lot of money, remembering 'the distant parts of this province' in which 'assistance cannot be procured, but at an expense that neither [the sick-poor] nor their townships can afford.'

    … [This] seems essential to the true spirit of Christianity, and should be extended to all in general, whether deserving or undeserving, as far as our power reaches.”

    Franklin further wrote,
    "[T]he good [that] particular men may do separately, in relieving the sick, is small, compared with what they may do collectively."  

    Sources: As quoted in the article "American Rage" by John Jeremiah Sullivan in GQ Magazine -and-
    ‘Appeal for the Hospital’ Benjamin Franklin, The Pennsylvania Gazette on August 8, 1751 (and subsequent articles by Franklin in support of that proposal)


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