The U.S. Constitution: Help Wanted

The American Enterprise Institute’s Values and Capitalism Project has produced some terrific short monographs on important public issues. The booklets are intended for use by college professors in undergraduate (especially introductory) college courses.

AEI President Arthur Brooks’ idea for the series was a stroke of brilliance. By contrast, the solicitation of a Greve contribution on the Constitution is open to doubt. I tend to write on a principle of complete audience indifference; I have no idea what frosh can be expected to know or get; and my riff on constitutionalism may be a tad unorthodox, if not downright exotic.

A draft of the Conclusion to the forthcoming pamphlet appears below. It is meant to leave the reader with two thoughts that may merit further consideration: one, concerning the relative health of our constitutional debate; the other, concerning the deep pathology of our institutions. Comments and suggestions, on style or substance, on- or off-blog, would be greatly appreciated.

Conclusion: Constitutionalism in Our Time

This booklet has provided an introduction to constitutionalism and constitutional theory—emphasis on introduction. You may be disappointed at its lack of answers to many of the questions that agitate our politics: is there a constitutional right to gay marriage? Should we have a balanced budget amendment? Was the Supreme Court right or wrong in Bush v. Gore or in the “Obamacare” cases? Questions of this sort matter greatly, and I trust that you will have time and occasion enough to examine them. My hope is that this booklet will allow you to approach them in a broader frame of mind—beyond ideological nostrums and partisan commitments, and with a heightened sense of their context and implications. Two concluding thoughts suggest some of the broad questions that arise frequently in our contemporary debate.

Constitutional Argument. Constitutional argument and debate is all around us—in the newspapers, on campus, at the office water cooler and our dinner tables. Do not take this for granted: it is an exceptional feature of American politics. Moreover, it is a constitutionally intended feature.

Our Constitution is not a sacred text entrusted to experts or oracles. It states no moral principles on which our betters could claim any special authority. Rather, in words that are intelligible to all, it establishes rival, competing institutions—all eager to have their way, all eager to insist on the democratic and constitutional legitimacy, as well as the wisdom and utility, of their cause. Different institutions will attract different political constituencies. They, too, have self-serving motives; they, too, claim the mantle of the Constitution. All this makes for an often rancorous debate.

At times, the agitation seems pointless or even frivolous. Must we really have a debate over the meaning of “commerce” in the Constitution before we get on with providing reliable health insurance? Why do partisans on all sides always have to press the Constitution into service? Shouldn’t we be more principled about the Constitution?

In a word, yes and no. Of course, constitutional debate requires a certain amount of candor, good faith, and intellectual honesty. Still, a constitutional debate of pure “principle” is for Platonic guardians or utopian speculators, not for citizens and their politics. The genius of our Constitution is to connect politics and principle. Its structural features—minimalism, competition, rigidity—invite argument and so “politicize” our Constitution. But in the process, they also democratize constitutional debate and constitutionalize our politics.

For this reason, every major political debate in American history has also been a constitutional debate. Such debates surrounded practices and institutions that now strikes us as entirely unproblematic: the income tax, Social Security, the Civil Rights Act. In retrospect the debates often seem silly. (Who would think of running a big country without an income tax?) However, they arose over very big innovations in American politics and government. Constitutional debate is a way of ensuring that in undertaking grand new experiments, we remain true to our principles and traditions. Constitutional disagreement is no sign on impending collapse or disintegration, at least not necessarily. More often, it is a sign of a healthy constitutional democracy, and not a bad way of running a free country. 

Madisonian Theory, Then and Now. Worries over the state of our Constitution arise at a different, institutional front. Rising economic inequality, recurrent financial crises, mounting public debts, political polarization, and the inability of our political system to respond promptly and effectively to those challenges have caused public disaffection and concern, bordering on alarm. Could it be that our constitutional system, for all its genius and accomplishments, may—after many permutations and under very different circumstances—be a cause of those difficulties, or in any event an impediment to their solution? Ordinary, competitive politics, the Founders believed, will operate with tolerable efficiency because the Constitution provides and stabilizes sensible institutional groundrules—checks and balances that make ambition counteract ambition. It is entirely legitimate and indeed urgent to ask whether that confidence is still warranted.

Madison’s great fear, recall, was majority faction. Nowadays, we are far more worried about the ability of small, cohesive “special” interests to exploit a large, under-informed majority. Madison’s comforting assurance that majority coalitions would usually be formed on principles of “justice and the general good” fails to take account of legislative logrolling, to the point where entire enactments, running hundreds or thousands of pages in length, consist of interest group favors. Often, these laws provide no reliable rule of conduct. Instead, they punt problems into a vast bureaucracy, whose rules and operation are a mystery to anyone except high-paid lobbyists. The “mutable government” that Madison feared has become ours.

Similarly, Madison’s theory assumes that one can endow institutions with permanent rivalrous ambitions. It also recognizes, however, that the accomplishment of public purposes requires institutional cooperation; and the power to cooperate is the power to collude. Our federalism and administrative state, we have seen, can be viewed as forms of intergovernmental collusion, calculated to evade political responsibility and public accountability. Democracy, it seems, has become a joke. Government power oozes from impenetrable bureaucracies.

Concerns of this sort are not entirely new. Robert McIlwain, an illustrious British scholar then lecturing at Harvard, expressed many of them in a brilliant 1947 treatise entitled Constitutionalism, Ancient and Modern. Constitutional checks and balances, he argued, will draw interests into their orbit. The dynamic will soon corrupt and immobilize government and erode its liberal, constitutional foundations. Constitutionalism’s true defense, McIlwain urged, is a constitutional “Higher Law,” safeguarded by a suitably educated legal elite.

Seven decades later, McIlwain’s argument resonates. The Founders supposed that government, and the federal government in particular, would not try to do too much. Now, in contrast, government programs cover and shape every aspect of citizens’ livelihoods—the labor market, health care and insurance, retirement benefits, education, and much else besides. Under such circumstances, it becomes hard to sustain confidence in competitive politics: too much, it appears, is at stake. Perhaps for this reason, liberal democracies, including ours, have tended to transfer power over important matters to unelected, “independent” bodies—market regulation, to agencies; money, to central banks; values decisions, to the courts.

It is difficult to see, though, how this can work in the long run. Administrative agencies are buffeted by too many political pressures to solve fundamental disagreements over means and ends; they must temporize, compromise, or seek cover in the courts. The Federal Reserve can hide behind a veil of expertise only so long as its policies produce widely accepted results. Once the public recognizes that the Fed’s policies (however well-intentioned) produce identifiable classes of winners and losers, the institution’s cherished independence will be in peril. Similarly, the judiciary’s Higher Law authority lasts so long as the higher law itself has a widely shared basis. However, it has become, if anything, more ideological, unsettled, and unsettling than our ordinary politics. Does the higher law command free markets, or redistribution? Does it forbid or require affirmative action? Gay marriage, polygamy, or “traditional” marriage? Abortion? Wholly apart from its elitist connotations, McIlwain’s notion that a well-trained legal establishment could check the ideological tendencies of our politics is illusory.

And so it ends: an introduction to constitutional theory has left you with deep and troublesome questions about the state of our politics and our constitutional order. The answers, if any are to be had, must be sought in the deep reservoir of our constitutional thought and traditions. That reservoir does not replenish itself. Now as always, the task requires our thoughtful attention and active engagement.