Regressivism Masked as Constitutional Originalism
Last week America engaged in one of its perennial paroxysms of constitutional cogitation – this time over the Obama health care bill – with (mostly) predictable results.
Four of the great legal priests on our High Temple’s Council of Scriptural Interpretation said that, yes, the Affordable Care Act was within the boundaries of what a small collection of men riding horseback to a meeting in Philadelphia one summer two-and-a-quarter centuries ago allow us to do today as a continent-wide superpower society of 300 million people in the age of atom bombs, space travel, heart transplants and genetic engineering. George and John and Thomas say it’s okay, we can have health care. Whew. That’s a relief.
But then four other priests insisted, “Oh, no, this is fundamentally not allowed. Not at all.”
And one apparently went both ways, voting against it before he was for it.
Such, in “the greatest country in the world” – as regressives, doing their national equivalent of Allahu Akbar, seek to assuage their insecurities and reassure themselves by constantly shouting at the rest of us – is the way we determine whether tens of millions of children will or will not receive pediatric care. This – by pondering what would John Hancock do? – is how we figure out whether one-sixth of our population deserves to have their lives lengthened by early cancer detection and intervention, or must instead resort to ‘treatment’ of their already metastasized masses in hospital emergency rooms.
The very fact of this debate and the questions on which it turns tells you far more than you’d care to know about just how great your greatest country is, the one which spends vastly more on health care than any other, but delivers the least to its citizens. But that is the subject of an essay (or six) for another day.
Today’s rant is on the destructive dogmas and horrid habits of our national addiction to the practice of constitutionalism itself.
By that, I don’t mean the fact that law in America is ultimately decided by five unelected, politically insulated and almost entirely unremovable individuals, meeting in secret and doing who knows what underneath their black robes.
Though that’s not our concern here, the absurdity of the process as demonstrated so emphatically once again last week nevertheless cannot go without being briefly noted. How anyone can argue with a straight face that judicial review of legislation in America – especially in our hyper-polarized era, where presidential elections are as much about loading up the courts as they are about executive branch policies – is not entirely political, but purely about ‘finding’ the constitutionality of issues, is quite beyond me. I guess it’s just a massive coincidence that the votes of Supreme Court are almost always entirely predictable based on ideology, eh? I guess it’s also just a quirk of legal quantum mechanics that conservative justices always find their way to the conservative ruling, no matter what principles they need to invoke to get there. If, for example, the question is whether the federal government has the power under the commerce clause to smash state law on medical marijuana, Scary Scalia explicitly says, “Hell, yes, the feds can do just about anything they want!” Anything except, as it turns out, providing people with health care. Then, it’s abundantly clear to the very same good judge, that the national government has no such power according to the very same provision of the Constitution.
Anyone who would still today deny that the Supreme Court is little short of a profoundly non-democratic mini-legislature is simply lying to you, and probably lying to themselves as well. The very ideological predictability of the justices’ votes, and the way they obliterate any principle in their way makes that emphatically clear, as does the swaggering aggressive activism of the regressive majority of the Court in cases like Bush v. Gore or Citizens United. As, for that matter, does the rage this week in the regressive community focused on John Roberts for his defection from Tory orthodoxy. Does anyone seriously think that these people have a problem with his ‘legal reasoning’, as opposed to his ultimate vote? Let’s not be ridiculous. They’re angry because a guy on the conservative team defected to the enemy, and legal principles have nothing whatsoever to do with it. It’s like the friends and family of a Red Sox fan who suddenly starts rooting for the Yankees.
By the way, the vote itself also demonstrates the pure politicization of the judicial process. By the available evidence, the good tool Roberts appears to have been all set to have voted his ideology in this case, just as he has in the past, and just as we’d expect him to have done on this issue. But then something happened, and he switched votes. I can tell you what that something was, and why it effected John Roberts and not, say, Anthony Kennedy, who is normally considered the ideological swing vote (though never, it should be noted, when there is real money on the table). What happened was that the rising crescendo of criticism of the Court for its ideological bias, its massive overreach, and the horrific decisions it has been rendering, such as those creating the Bush presidency and the monstrosity of corporate-owned government, got to him. If there was a single development that switched Roberts’ vote, it was the New York Times front page article published in recent weeks detailing poll data which demonstrate that America’s admiration for the Court is way down, at historic lows. This is why it was Roberts who switched, and not one of the associate justices. His name will forever be attached to this court, and he didn’t want history to record that it was the Roberts Court that ruined the historically well-regarded institution. He didn’t want ‘Roberts Court’ to show up on the same list as Dred Scott and Plessy v. Ferguson. By taking a hit on this big issue once, he can now go back to stuffing plutocracy down our throats, as he assuredly will, but henceforth with an historic alibi in his pocket. In other words for the next thirty years we’ll be hearing: “Hey, you can’t say my vote is always just a shill for the corporatist oligarchy – look how I voted on Obamacare!”
But I digress (and digress some more).
Our current system of jurisprudence – which is often really our current system of legislation – is wrong on all sorts of levels. It was, to begin with, a bad idea for these justices to be deciding health care policy in America. And it was an even worse idea for them to be doing so on the basis of attempting (or pretending to be attempting) to decipher the Founders’ thoughts about the provision of health care to the public, more than a century before governments anywhere ever contemplated providing such services, and two centuries before it became the norm in developed countries.
But what’s really wrong, at the foundation of this pyramid of bad practices, is the whole notion of constitutionalism itself. Somehow we’ve gotten it into our heads that we as a twenty-first century contemporary society are only permitted to do what the Constitution of the late eighteenth century permits us to do. I, for one, don’t see the wisdom in that at all, and I say that for a number of good reasons.
To begin with, it is a fool’s errand to believe that we can ascertain the intentions of the Founders on a huge raft of contemporary issues which – like radar itself, would have been completely off their screens in the pre-industrial, let alone pre-post-industrial, agrarian society in which they lived. Even the Founders themselves – the very people who wrote the document in question – began debating about what the Constitution permits immediately after ratification, notably the 1790 row between Hamilton and Madison over whether a federal bank was permitted.
That particular debate – between two key authors of the Constitution a mere one year after it was ratified – suggests a second problem with the notion of constitutionalism as the foundational mechanism for policy-making. Namely, that the document is written in vague enough language in many places so as to permit multiple interpretations on given questions, each sometimes equally valid. Not for nothing, for example, is one of the key provisions of the document referred to as the “elastic clause”.
So already, any rationale for making decisions on everything from health care to pornography to torture to racial equality in this fashion is on the shakiest of grounds on the basis of these two critiques alone. But there are other reasons for rejecting this approach as well.
Americans love and revere their constitution, but my guess is very few of them could begin to tell you why, and among that handful, even fewer still could defend the laudable characteristics they might be able to identify in any sort of comparative contest against alternative possibilities. It’s quite a lot like religion. If you feed a society “Allah, Allah, Allah” non-stop, 99 percent of its members are gonna turn out to be good Muslims (some of them quite fervent) without thinking about it one way or the other (and the other one percent will, I assure you, be very quiet about their doubts). You can even go “Jesus, Santa, Jesus, Santa” if you want, and then come along ten years later and say “Just kidding about the Santa part – but the Jesus thing is totally real!”, and that’s exactly the set of beliefs you’ll get, almost no one ever looking askance.
And that’s pretty much how we do our knee-jerk constitutional adoration in this country, as well.
But, truth be told, it’s actually not such a very good document, if we’re honest about it. I know you’re not supposed to say that, but then again if we occasionally told the truth in America we wouldn’t be in the mess we’re in right now either. So I will.
The first thing to notice about the Constitution, looked at dispassionately, is what is not in it. It is, in terms of actual content, very little of a moral statement at all. It does include some guaranteed freedoms as something of an afterthought in the Bill of Rights, but it does not otherwise have any substantive content, especially on any serious ethical or philosophical issues. Moreover, on the great moral question of democratic inclusion, the prescriptions of the Constitution are highly wanting (though some – but not all – of this may be fairly excused by the ethos of the historical moment). There is no room for women here, nor for less-than-wealthy men, nor for non-whites. I don’t know about you, but if you want me to be impressed with any given manifesto or political statement, it needs to stand for something at least a bit novel and profound.
So what is in the document, then, if not some secular equivalent of the Ten Commandments? It is essentially a blueprint for a governing structure, and little else of note. The Constitution says who decides in American society, how they come to occupy those positions, and how these positions relate to each other in terms of their powers. That’s just about it, really.
Now, if that happened to represent some brilliant form of governing structure, far superior to all the others, then I might be persuaded that our national reverence for this centuries old document was well founded. In point of fact, however, I would argue rather the opposite is true here. Though I think the Constitution represents a fairly clever bit of engineering on the part of the Founders, given the goals and parameters of their moment, those aren’t goals I particularly share, nor can they be fairly argued to be very much helpful to national governance in our time.
For the key thrust of the regime created by the Founders in the Constitution is the dilution of power. Their task was to come up with a government of stronger power than the failing Articles of Confederation, but they were adamant that it not be too strong, so they found three ways to spread power out. First, vertically, by sharing power between the states and the federal government. Second, horizontally, within the federal government, by means of separation of powers across independent branches of policy-making and implementing institutions, otherwise known as the idea of ‘checks and balances’. And, third, by expressly limiting the powers that the federal government possessed over the public and over the states, as itemized in the Bill of Rights.
It was a fairly clever bit of engineering considering the needle the Founders had to thread between strength and weakness at their specific historical moment, but is it a particularly efficient or otherwise felicitous form of government for our purposes today? I dunno – can you say ‘gridlock’, dude? Do Americans seem remotely enamored with their government today?
This is a governing structure that is designed to mostly be incapable of doing anything, other than when very, very broad consensus exists across all the governing institutions. The diffusion of power also means that assigning responsibility is rather difficult as well. If you’re unhappy with your government today, who do you blame? Democrats? Republicans? The President? Congress? The Courts? And if you have a hard time affixing blame, how can you choose a different alternative as a remedy?
I would argue that this is a form of government – one in which so many veto points guarantee relative inaction – only well suited to a people who are paranoid about the supposed perils of governmental powers. It’s true that probably no other culture on the planet fits that description as well as American society, but that said, it seems to me that there comes a point at which the dysfunctionality of weak government outweighs any benefits. Besides which, the small government limitations in place today seem only to apply to making it difficult for our government to provide benefits for its citizens, like health care. When it comes to the really ugly stuff (and the stuff that the Founders were concerned about) – like unrestrained warfare, warrantless spying on citizens, endless incarceration without due process, and now even assassination of citizens on the president’s unilateral whim – there’s no small government to be found anywhere in sight, anyhow. And, by the way, do the other democracies of the world – those not possessing the power-diffusing principles of governance America has – suffer from totalitarian regimes controlling their subjects’ lives in some sort of nightmare right out of Orwell? Is that what you see in Sweden? Canada? New Zealand?
Which reminds us that there is a better way, actually. In a parliamentary, unitary (non-federalist) democracy, power resides in parliament. Period. Which also means that responsibility resides there as well. There are no checks and balances, no competing institutions, no great secular scripture on high to consult, and no gridlock. If you don’t like the way things are going in your country, you know who to blame, and what to do about it at the next election.
And this reminds us further, then, that American ultra-reverence for the US Constitution is even more misplaced. The main thing – indeed, just about the only thing – that the document does is to spell out the governing structure for the society. I’d say that’s undeserving of reverence enough but if, in doing so, it prescribes a fairly dysfunctional one, why must we always genuflect in its direction every time we need to make a decision more than two centuries later? If it doesn’t even do the one thing it was designed to do so very well, why in the world should it be controlling our lives?
There are two great ironies here. One is that I suspect that we take the Founders a whole helluva lot more seriously than they took themselves. They referred to their regime-creating enterprise as an “experiment”, and they meant that rather literally. Not only did they not think their Constitution walked on water, they didn’t really have much of a clue as to whether it could work. And there were good reasons to adopt such a healthy skepticism. First because they had gotten it wrong very recently, and not once, but twice. They had tried monarchy and abandoned it as a failure. They then substituted the Articles of Confederation, a governing design so flawed it barely lasted a decade. Moreover, if you look at what actually transpired at the constitutional convention, you see all sorts of ideas and debates and compromises flying around amongst the delegates. The point is, it’s not like these people were hand-delivered an instruction manual for good governance by the Supreme Being. They knew that they weren’t, so how come we don’t?
The other great irony here is that our twenty-first century slavish reverence for the diktats of the Constitution (or what some of us claim to be able to decipher as its diktats) does a massive disservice to the one great thing that the Founders actually did contribute in penning the document.
In truth, it’s not the contents of the Constitution that are to be greatly admired, for all the reasons noted above. This was a significantly flawed document in 1787, and is even more so today. What really matters is not what they did so much as that they did it. The really amazing thing about the Founders and the Enlightenment movement of which they were leading lights, was the transition they provided to the concept of self-rule, and to the notion of governance based on the principle of reason, or rational analysis based on empirical observation. This idea was almost wholly foreign to their time, and their broader ethos that humans could be trusted to think for themselves and govern themselves was truly a gigantic leap out of the dark ages and into modernity. Indeed, Enlightenment ideas arguably represent the most significant development in all of human history.
For this, I truly admire the confidence, courage and ingenuity of Founders’ generation, and I’m truly grateful for their contribution.
In light of this, then, how much more absurd and sad is it that we – centuries further down the road – dishonor their contribution by continually trying to make policy on the basis of interpreting some über-text written by some quasi-deities from a wholly different culture and time, instead of following their prime directive and thinking for ourselves?
I’m pretty confident that the Founders would agree that in slavishly seeking to decipher their ancient words and letting those govern us today, we have in fact missed the very core essence of what they were trying to say.
Justice Antonin Scalia, one of the most destructive forces in American history, not long ago had a message for liberals and other patriots still smarting from the judicial coup he engineered which put another of the most destructive forces in our history into the White House for eight years: “Get over it” said the nice judge.
I’d like to return the favor with respect to his brand of regressivism masked as constitutional originalism: It’s just parchment, people. Get over it.
David Michael Green is a professor of political science at Hofstra University in New York. He is delighted to receive readers’ reactions to his articles (firstname.lastname@example.org), but regrets that time constraints do not always allow him to respond. More of his work can be found at his website, www.regressiveantidote.net.