A Case for Constitutional Reverence

In his second response to Sandy Levinson’s call for a new constitutional convention, Michael Greve cast doubt upon the efficacy of such a project  given the mess of our fiscal circumstances. Under present conditions, how could we ever simply focus on the structural challenges unencumbered by current political expediencies? In essence, it’s far too late to hope for the degree of detachment and deliberation that would be necessary from any mere collection of mortals. There is another side to this, though, that links, interestingly, to the whole debate about the nature of history and originalism.

I would like to suggest that the Constitution we have, has taken its place alongside other key documents in the western legal tradition, not because it has preserved inviolate a coherent legal and institutional order, but rather because it has served as a cultural Polaris in favor of the presumption of liberty. In this sense, James Stoner’s contention that we are still within the confines of a constitutional system as originally understood, seems altogether too optimistic. Rather, we have returned to something more like the earlier English constitution. Sandy Levinson’s post affords a nice way to conceptualize that issue.

Professor Levinson’s case is built largely on his observation of structural difficulties even where ambiguity in meaning does not exist.  Like Greve, I think the idea of wholesale revision becomes problematic given current circumstances, but the reason I would like to offer has more to do with the limits of our perceptions. What constitutes a particular structural problem? Doesn’t the recognition of a problem itself require agreement as to the operative values necessary for democratic and republican processes of government?

For instance, one person’s understanding of the time required for appropriate political deliberation and transition in government, may be another person’s idea of delay and inconvenience. As our culture continues to change and transform, these disagreements will persist and multiply on a variety of levels.  Particular structural provisions are received differently in different contexts. Professor Levinson certainly knows his state constitutions, so I will be curious how he might react to the following:

Arizona’s constitution has many of the same progressive instruments that California’s does, but Arizona’s system functions arguably better, not because those provisions are more clearly written or rationally organized, but rather because Arizona’s political and legal culture is in greater conformity with both the meaning of its provisions and their desirability.

In the Index of the Freedom of the states  Arizona ranks 22, whereas California comes in a lousy 48 out of 50. On a national scale, it is hard to believe that structural reforms alone will do much to improve our national culture, or bring us into even greater agreement about what is desirable constitutionally, and might even make things worse by undermining the degree to which cultural coherence yet remains. More troubling for me, however, is the possibility that the Polaris of liberty could itself be obscured or even obliterated.

Originalism has many challenges, not the least of which are the differing interpretations of the Founder’s themselves, yet one thing remains fairly clear: None of the framers or those who attended the state ratifying conventions wanted the unlimited, unconstrained exercise of power. All thought they were affirming a government of laws.  And all would have contended that they were furthering the great aim of liberty. Where originalism and history come together is in the uncovering of the constellation of meanings that were coordinated around this essential cultural marker.

If today we have moved beyond the constraints of the Constitution as originally conceived, we can still appreciate the value of their object. If we can appreciate its value, we can still contend for its current efficacy at every point of departure. And we can always raise the question of the prudence of further change with respect to the value of freedom. But if we toss the current document aside, even that limited function could be eviscerated. Against what other polestar then would we measure success and efficiency? By what other measure would we decide what constitutes effective power?

Because of our constitutional infelicities, we have an order that no longer seems to correspond to original intentions however conceived. We have steered our legal vessel, for all intents and purposes, into the British stream. Like them, we will need now to appeal to values of liberty and limited government under law as expressed in the fundamental documents of the western legal tradition even as they have been tossed together with the dross of other subsequent agglomerations. But we can still make the appeal to liberty because of the history that rests at the origins of the Constitution.

We should then affirm our Constitution alongside the other great documents in the history of liberty such as the Great Charter, the Petition of Right, the Declaration of Rights and a host of other liberty affirming statements against unlimited power. As such the Constitution can still serve to remind us of what it means to be free and thereby hold out hope for rebuilding our culture accordingly.

Reader Discussion

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.

on March 22, 2012 at 18:28:38 pm

"...we will need now to appeal to values of liberty and limited government under law as expressed in the fundamental documents of the western legal tradition..."

This has always been true. Part of the progressive enterprise has been to exploit the notion that the term "Constitutional" implies some sort of absolute. Absolutes are difficult to defend in any part of life, and if the committed progressive intends to dissolve constitutional barriers to some leftward ambition, it is tempting to show that treating such concepts as the right to bear arms or freedom of religion as absolutes will eventually lead to a contradiction. Thus, the activist can claim that such an interpretation must be wrong; that the "meaning" of the Constitution is more nuanced than its words suggest and current ideologies should not be restrained by ancient ambiguities. This enterprise is facilitated by a rationalist approach to Constitutional interpretation that seeks to proceed from a fixed premise, and this is the trap into which the progressive hopes to lure the originalist. If the progressive succeeds in starting the argument somewhere in the middle, say with the text of the Constitution, the premises can be challenged, and deductive, incremental reasoning can be used to lead to pretty much arbitrary destinations.

A harmless diversion is thesaurus golf: constructing a chain of the fewest synonyms that leads to the opposite of the starting point. A synonym of "white" is "clear, " and of "clear" is "apparent." We can thus construct a chain of white > clear > apparent > supposed > hypothetical> indefinite > opaque > dark > black. In a similar fashion freedom > opportunity > contingency > predicament > hardship > oppression. This anomaly in the use of synonyms is possible because of the inexactness of language and the subtle ambiguities that can be twisted from specific usage. A similar exercise can be applied to Constitutional interpretation, and in fact this is part of the progressive approach: e.g. what is a "public use" and how did we end up with Kelo? Wandering interpretation is a hazard when relying too much on the concept of "meaning." Even if the originalist succeeds in maintaining faithfulness to substance, he is still vulnerable to attack. To take the example above, if one objects to the trail that leads linguistically from freedom to oppression, a historian can be summoned to challenge the "meaning" of freedom in the first place.

Liberty exists as its own entity. It is not a linguistic construct, or creature of subjective interpretation of old writings. Rather than beginning the inquiry with the Founder's conclusions and proceeding forward deductively, it is first necessary to take a more empiricist approach and proceed inductively to the first principles, to what Mr. Eicholz describes as "values of liberty and limited government."

There is a reason why we have a written Constitution and a body of law interpreting it. It is not so that activists can make it mean whatever is fashionable at the time.

read full comment
Image of z9z99
on March 24, 2012 at 04:08:20 am

Without a legal bond to the Constitution with each generation, the resultant government is not theirs', thus not respected. Being born into a system does not create a legal bond of one's choosing, for free people must consent first. Below must be added, because it's the next step FORWARD.

Perpetual Confirmation of the Constitution

Whereas, a healthy respect to each Citizen for their continued consent in allowing the Constitution of the United States to remain in effect requires perpetual confirmations; and

Whereas, with no such provision for Citizens to Rightfully repeat the most important agreement between our Sovereign citizens and the Document stating Limits and Purpose which is to serve as the agreement and consent for the Constitution of the United States to exist; and

Whereas, this Rightful and Necessary confirmation shall be repeated so as to continue in each subsequent generation the check on the subsequent government for Respect to our Sovereign citizens; and

Whereas, if such consent is found lacking, a National Convention shall be called for an inquiry into the People's concerns:

Being a free people, who authorize others to act for us, requires respect from those we authorize, and responsibility of such authority when exercised.

This tranference must be renewed from time to time. Our authorization, given freely to others still has a shared burden. For when freely given, authority apart from us is moraly connected back to the source. Without recognition regarding this, by our government, to our temporary bond, their function is null, void, and subject to criminal penalties.

A great burden remains on the people, and must not be forgotten, or dismissed.

Sec. 1 Effective on passage, a vote shall be called for in the several States to occur within thirty days, where the citizens will cast votes to indicate if the Constitution of the United States is and remains confirmed to exist as the Supreme Law of the land, and such vote so requiring a three-fourths majority in affirmation.

Sec. 2 Every eighteen years from the date of passage, citizens shall cast votes to indicate if the Constitution of the United States is and remains confirmed to exist as the Supreme Law of the land, and such vote so requiring a three-fourths majority in affirmation.

Sec. 3 If the required affirmation is not reached in any said vote, a Convention of States shall be called immediately and shall begin proceedings within ninety days; the convention shall consist of delegates elected, but not currently holding positions of election or appointment or employment or also such within the past year at the time of such election as delegates; delegates shall be qualified to citizens of an age of 25 years or more.

Sec. 4 Rules for the Convention of States, when called for, shall be set forth at the start of the Convention.

Sec. 5 If a convention called, and while so, in its proceedings, it shall enjoy absolute independence from new laws and any other laws which interfere with its deliberations, with no hindrance to any persons required and approved by said convention, or otherwise disturbed, except for peaceful attendance by the people either inside or outside said building or buildings as is allowed by convention rules.

Sec. 6 During a convention the Constitution remains in effect, with no alterations to Federal of any State of the several States which does or may do affect said convention.

Sec. 7 Rendered deliberations shall be put into effect of which shall consist of three options.

a) Continue as if a three-fourths majority in affirmation was obtained.
b) Call for a revote of affirmation,
c) Deliver amendments for ratification, using a method described in Article V as determined by Congress.

The convention shall have 120 days to deliberate, if required, and if the 120 days pass without a rendering, then it will be as though affirmation was reached.

read full comment
Image of Eric Hodgdon
Eric Hodgdon
on March 24, 2012 at 04:22:19 am

Sec. 6 ... alterations to Federal [or] any State [Constitution] ...

An artist is never satisfied!

read full comment
Image of Eric Hodgdon
Eric Hodgdon
on March 24, 2012 at 05:11:39 am


OF the current financial problems, no Constitution can remedy. Some may venerate our grand document, others desire changes. Yet more try to understand to reach certitude.

All bring to light valid and worthy ideas for consideration someday. Do we have the time to wait before it vanishes before our eyes?

Many sources write of current events in ways covering the spectrum, joy to sorrow. Which will be, may not have time to be told. As the rapidity of issuance's emanate from W.DC, for dubious and distrustful reasons, the election distracts for more than its pointless outcome in November.

Our national documents, however seen, and held, are at risk, and so are the people to which they belong.

Maybe I overstate or am inaccurate. I, however, will not stand idle, nor must anyone else who intends to continue living as free people with authority and responsibility for what we were handed by our birth. We owe ourselves and those who came before us who are no longer.

"Tho' much is taken, much abides" and whether designs made by tyrants serve us or not, we must approve those designs, or we are no longer bound to the Constitution; we then invoke our Declaration's principles, for those words are truth eternal.

read full comment
Image of Eric Hodgdon
Eric Hodgdon
on May 01, 2012 at 07:36:39 am

The original plan was to fund a puiblc option to compete against insurance companies, forcing them to behave. That plan was apparently too scary for many, and it was replaced with the piece of trash that just passed, which funnels puiblc money to private companies to reduce their risk, and pray that they behave. The only solace I find is the knowledge that we as a country are one step closer to realizing that for profit health care is simply the wrong type of system. This atrocity where we simply pump money into the pockets of the greedy will quickly prove that we cannot prop our system up regardless of how much we throw at it.

read full comment
Image of Jacky

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.