The Influence of the US Constitution

The New York Times runs a piece claiming that the US Constitution is losing influence, based on an article co-authored by my former colleague David Law.  I haven’t read the Law piece, but the Times article is obviously one that is infused with politics.  One doesn’t have to read too closely, especially if you know the people being quoted, to realize that the critics of the Constitution in the article are liberals.  The defenders of the Constitution are on the right — I think only Justice Scalia.

I am not sure that this suggestion of a partisan divide is entirely accurate.  But if the Times is looking to make a political point for the election year, it is making a mistake.  The suggestion, if accepted, that conservatives favor the Constitution, but liberals oppose it, would in my view be the kiss of death for liberals.  Americans embrace their Constitution, and it is already a problem for liberals that the Tea Party has associated itself with the Constitution.

Update:  Two interesting posts on the Times piece and the Law-Versteeg article by Paul Horwitz and Mike Ramsey.

Reader Discussion

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on February 09, 2012 at 06:51:09 am

The article illustrates the decay of the legal professoriate who actully profess to believe such vacuous intellectual garbage. Competent lawyers should know better. The NYT can be excused; they are, after all, mere lowly journalists, educated in nothing of value or permanence and trained to do nothing of value or permanence.
As for the "outdatedness" of our constitution, that is one of the most wonderful of its myriad extraordinary qualities, a true fact which has been lamented by "Progressives" (sic) from Teddy Roosevelt and Woodrow Wilson, to Louis Brandeis, to FDR and Willam O Douglas, right up to Ruth Bader Ginsberg and Barack Obama. They do so, of course, (accuse the constitution of being outmoded) solely as a convenient public rationale, a demagogic rhetorical device, in effect, behind which they seek to mask the real core of their oppostion to the constitution: That chiefly by virtue of separation of powers and federalism it stands in the way of democratic totalitarianism (rule by those who rule the mob,) which has been the singular goal of corrupt power seekers from the Athenian democracy, to Lenin and Stalin with International Communism, to Hitler and National Socialism, to Obama and the modern Democrat Party .
Lord Acton, the greatest scholar of the history of Liberty, considered the US Constitution one of the finest achievements of world history ( in large part because of its reliance on federalism as the chief antidote to centralized bureaucratic power which Acton saw as the great enemy of Liberty. Acton also thought Liberty (which he defined as freedom to live ones life and enjoy ones property free of interference and violence) to be 1) the highest human value, 2) the direction of history, 3) the mark of historical progress, and 4) the crowning achievement of the American constitution.
I'll cast my lot with Acton and be rather pleased that the likes of the economically bankrupt Western European Statists, the morally deficient NYT, the one-dimensional Bader Ginsburg, the many intellectually deficient members of the contemporary legal academy, and the vacuous Barack Obama despise our constitution. There contempt is but a badge of its enduring superiority.

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Image of Tim
on February 13, 2012 at 05:02:04 am

What makes any judiciary noble (or even serf, for that matter) think that a constitution that was written 225 years ago doesn't need amendments? Life today does not resemble life 225 years ago. The decay is occurring because it is not an accurate reflection of contemporary life. This isn't about right wing or left wing, but what is contemporary.

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Image of Sem
on February 18, 2012 at 23:55:04 pm

The real problem exposed in the article is that a Justice of SCOTUS would go abroad and denigrate the Constitution that she has sworn to defend and uphold.

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Walter Sobchak
on March 05, 2012 at 21:01:42 pm

I continue with my above ccisiritm (excuse the spelling my keyboard sometimes misses a key and, when I'm in great haste, it slips through unedited).2.)The non-retroactivity (or -retrospectivity) of the development: In para [51] of its judgment, the CC actually leaves open the possibility that the legality principle might in some instances not be able to provide a bar against retroactive/or retrospective development of common law crimes. The CC then goes further and actually accepts that the prospectve' (as opposed to retrospective') development of the common law (where needed)should only happen in rare' cases. Without stating what rare' cases would be, the CC then simply accepts that this is such a case where the fair trial rights' of the accused justifies prospective development only. In the process, the rights of survivors/victims appear to have been left out of the reckoning, and they have not been balanced against the rights of the accused to see whether the latter can actually be limitted in terms of s 8(3)(b) read with ss 36(1) and 39 of the Constitution. This is something the trial court dealt with extensively, and one would have therefore expected the CC to do better than merely stating (without reasoning) that this case is not one where the common law can be developed retrospectively (which is the rule rather than the exception when the common law is developed). In the process, the CC: left the Canadian jurisprdence of R v Finta out of the reckoning where a distinction is drawn between retrospective and retroactive development of the law [see also DH Doherty "What is done is done: An argment in support of a purely prospective application of the Charter of Rights" (1982) 2 CR (3d) 21 at 125.], the former being admissible, the latter not it did not take into account that the deed that Masiya had been convicted of is an act which is mala in se, which does not require a preceding positive law to proscribe it [in fact, to use the majority's words - the crime of indecent assault in such circumstances is only 'recategorized' as a more serious form of sexual assault, namely rape] it left the legislature's dragging of feet (even before Masiya was convicted) in providing for new legislation out of the reckoning it did not examine the origin, nature and content of the legality principle at common law when describing s 35(3)(l) and (m) as codifications of long standing principles of the common law' it relied on the decision of Veldman, which also can be criticised along the same lines, but which deals with statutorily increased sentencing juisdiction rather than development of the criminal law etc.3.) As far as the male/female thing is concerned, I associate myself fully with the majority and the ccisiritms in this blog and elsewhere. It can be added, however, that Nkabinde J (a woman), makes a big thing of womens rights activists'involvement in the alteration of the law of rape, even refers to the Convention regarding non-discrimination against women and the fact that the victim here is a child, but does not refer to the conventional and customary international law rules regading the rights of children (which are gender-neutral in all respects). The CC therefore did not really dispose of its mandate in s 39(1)(b) to consider [all applicable] international law when interpreting the Bill of Rights. [The same could be said under 3.) above.)4.) In paras [2]-[32] the CC citicizes the courts a quibus for their reasoning that the common law definition as it currently stands' is'unconstitutional' to the extent that it is in need for development, saying that it would be throwing the baby out with the bath water'. In the process, the CC seems to think that a finding of unconstitutionality implies excision ( elimnation') of the rule, which is not what the courts a quibus intended at all! It should be clear from the judgments given below, that the magistrate and the Judge involved were of the opinion that the crime of rape should not be invalidated because of its non-compliance with the Bill of Rights, but that it should be developed to conform to the consitutional imperitives involved. In the process, the CC indeed ignored its own jurisprudence as far as reading down'/'reading in'/'constitutional conforming interpretation or development of the law' is concerned.Yes, I think this was a bad judgment over all. Sorry to the survivor/victim in the Masiya matter! Sorry to all the survivor/victims of non-consensual anal penetration since my judgment was given until the CC's judgment almost two yeas later! Sorry to all the male (men/boys) who have been anally penetrated agaist their will since the CC's judment until one day (who knows when, Johnny De Lange?), either Parliament wakes up and passes the long awaited Bill or until a human rights group requests a declarator before the High Court! I did what I could, but to no avail.

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Image of Antony
on March 06, 2012 at 10:51:52 am

In Shain’s “Opposing voices” (Jonathan Ball, 2006), Tony Leon (at 38) eerfrs to our “liberal democratic constitution”, Zille (at 99) to “our essentially liberal constitution” while Van Zyl Slabbert (at 154) writes that our country “is deservedly renowned for its liberal democratic constitution, which is one of the best in the world”.If I understand you correctly, you maintain that they are all wrong – and that their (and several million other citizens’) understanding and conception of the constitutionally settlement of the 1990’s is simply wrong and/or misguided? This all smacks of constitutional fraud at a massive scale.“Transformation” is ANC political jargon. To now “debase the currency” of the constitution by referring to it as a “transformative constitution” is to link it to the ANC’s policies and agenda. Then it exactly does not serve to protect the individual citizen from the tyranny of the majority. Then it is simply ANC political philosophy made law. As if anything done under the banner of transformation is constitutional. Is that really what you maintain?“A democratic country does not need a constitution to reflect current values. Elections do that. A written constitution is needed to protect values against prevailing wisdom.” (Ring: Scalia Dissents (2004) at 4).But maybe (and in an effort to find middle ground between our different views) this debate crystallises the problem: the DA/Liberals claim it to be a liberal democratic constitution. And the ANC claim it to be a transformative constitution. And the progressives claim it to be a progressive constitution. For the CC to then award it to the ANC by declaring it a transformative constitution, is to declare the ANC as the right/correct “constitutional” party. And the DA/Liberals the wrong party – the one with the unconstitutional policies. May I pose a question: By labelling it a “transformative constitution”, do you thereby also firmly maintain that it is not a liberal democratic constitution?And, of all possible labels, why use this particular one (transformative) to brand the Bill of Rights we all so desperately need to succeed and to gain acceptance and legitimacy.

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Image of Nana
on June 10, 2012 at 01:23:47 am

I think we're largely all in agmereent on the primacy of the individual in the philosophical principles we're trying to lay out. What's required for such a philosophy to work is an acknowledgement of the people that they have personal and direct responsibility for their own success or failure. That's also a big part of the definition of being an adult.I try not to say liberal/leftist/progressive if I can avoid it, and I'm increasingly uncomfortable with conservative too. The dicotomy I see is between the statists on the other side and the individualists on our side. Statism tends (inevitably, I'd say) to totalitarianism, where the state controls everything. Individualism would tend toward anarchy, except that most individualists fully understand the advantages of voluntary associations to accomplish tasks single people are unable to do.So maybe we should espouse individualism, with the concepts of duty, honor, and responsibility, as opposed to statism, with the concept of subsuming the individual's desires to those of the people in authority over the society.

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Image of Matthias
on July 19, 2012 at 10:05:12 am

Michael, I used the post-liberal tag because, uiknle in more traditional Bills of Rights cases where courts only ask whether there has been an infringement of rights, the court here relied on the positive obligation in s 7(2) and asked whether the omission on the part of the state to set up an independent body was constitutionally valid. In asking this question it did, as you point out, rely on principles that are decidedly liberal. I understood Klare's post-liberal tag not to mean the Constitution is not underpinned by liberal principles but that it goes further than traditional liberal documents to safeguard the rights of individuals and that this is a good thing as it captures an understanding of power that is far more in line with reality than traditional shield but not sword constitutions. My claim is that from a particular ideological perspective almost all judgments of the CC could be denounced as counter-majoritarian, but I do not share this perspective.I agree that international law treaties are not ambiguous on the point. The judgement quoted several treaties which set out the requirement for independence.You are correct that I was perhaps deliberately provocative by referring to Motala as an American. One has to have some fun sometimes I could not resist .

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Image of Boubaker
on November 26, 2013 at 00:24:46 am

amazing post you got here, thanks alot for making it available!

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Anik Singal

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