Constitutional Failure

Sotirios Barber

• Publisher: University Press of Kansas
• Year: 2014
• Print ISBN: 9780700620074, 9780700620074
• eBook ISBN: 9780700620449
• Topic: Politics & International Relations
• Subtopic: American Government
• Index: Politics & International Relations

Americans err in thinking that while their politics may be ailing, their Constitution is fine. Sick politics is a sure sign of constitutional failure. This is Sotirios Barber's message in Constitutional Failure. Public attitudes fostered by a consumer culture, constitution worship, the lack of a trusted leadership community, and academic historicism and value skepticism—these, this book tells us in clear and bracing terms, are at the root of our political dysfunction.

Barber characterizes the Constitution as a plan of government—a set of means to public purposes like national security and prosperity. He argues that if the government is failing, it's fair to conclude that the plan is failing and that laws that are supposed to serve as means can't in reason continue to bind when they no longer work. He argues further that constitutional success depends ultimately on a stratum of diverse and self-critical citizens, who see each other as moral equals and parts of one national community. These citizens, with the politicians among them, would be good-faith contestants regarding the meaning of the common good and the most effective means to secure it. In this way—showing how the success of a constitutional democracy is more a matter of political attitudes than of institutional performance—Barber's book upends the conventional understanding of constitutional failure. In Barber's analysis, the apparent stability of formal constitutional institutions—usually interpreted as evidence of constitutional health—may actually indicate the defining element of constitutional failure: a mentally inert citizenry no longer capable of constitutional reflection and reform.

At once concise and thorough in its analysis of the concept of constitutional failure and its accounts of a "healthy politics," the corrosive impact of Madisonian checks and balances (as a substitute for trust-worthy leadership), and the outlook for meaningful reform, this book offers a carefully reasoned and provocative assessment of the viability of constitutional governance in the United States.

1

Why Talk about Constitutional Failure?

This book addresses a paradox: Americans have lost faith in their government, yet they revere the constitution that established their government and continues to structure its operations. I argue in this book that this paradox is due to a misunderstanding of what the Constitution is. I believe, moreover, that this misunderstanding is a fatal misunderstanding. I argue that recovering the lost understanding (the “lost constitutionalism of the framers,” if you prefer) requires supplementing, perhaps even rejecting, the framers’ own strategy for constitutional maintenance. The framers’ strategy is called “checks and balances,” and no idea is more associated with American constitutionalism than “checks and balances.” If recovering the framers’ constitutionalism actually did require rejecting this idea, then recovering the framers’ constitutionalism would require rejecting the framers’ constitution. One paradox would thus replace another. To resolve this last paradox, I’d have to show that the American Constitution is less a document—and the behavioral theory behind it—than a political culture, and that constitutional failure is less an institutional than an attitudinal matter. More specifically, I’d have to show that constitutional survival in America depends on attitudes like patriotism, trust, and magnanimity, and that relying mainly on checking and balancing self-serving attitudes guarantees eventual constitutional failure.

The Initial Paradox

Over the last half century Americans have grown increasingly doubtful about their government’s ability to meet the country’s economic, social, and environmental challenges. Congress has been the chief focus of this worry, due mainly to undemocratic aspects of the Senate’s composition and operation, a practice of financing electoral campaigns that beggars Congress to special interests, and ideological division that makes it impossible for Congress to function as a deliberative body. In June 2013, Gallup reported that only 10 percent of the public had “a great deal or quite a lot” of confidence in Congress, with 52 percent expressing “very little” to no confidence, and 37 percent having only “some” confidence in Congress. This contrasts with the 47 percent who voiced “a great deal” or “quite a lot” of confidence in Congress in May 1973. Congress is far from the only worry. Confidence in the presidency as an institution declined from 72 percent in March 1991 to 36 percent in June 2013. And confidence in the Supreme Court declined from an average of 45 percent in the ten-year period from 1973 to 1983 to 34 percent in June 2013.¹ A puzzling element of this situation is the public’s esteem for the Constitution. According to the AP–National Constitutional Center Poll of August 2012, 69 percent of the public (down from 74 percent in both 2010 and 2011) considers the Constitution an “enduring document” that does not need to be “modernized.”²

These figures provoke the question of how Americans can have a good opinion of their Constitution and a bad opinion of their government. Shouldn’t opinions of government and constitution rise and fall together? Isn’t one supposed to be the plan of the other? Federalist 1 calls the Constitution a “plan” of government, a plan for a “good government,” one that will facilitate the people’s “dignity,” “liberty,” and “happiness.” Because The Federalist offers the plan to the public as a remedy for “the insufficiency of the existing federal government” (i.e., the Articles of Confederation), the plan resembles a physician’s prescription: follow this plan and you’ll do better, says The Federalist. Can a prescription be a good one if it’s wrong for the patient? And is it wrong to assess the value of a prescription by whether the patient actually improves? The patient did improve in the 1780s and periodically thereafter. But at this writing future prospects for the country don’t look good, and the prescription was supposed to be good indefinitely.

True, you can’t blame a plan if the patient doesn’t follow it. But though the nation has ignored the plan in the past, especially during the Civil War, the patient follows the plan today. Right-wing critics of the New Deal and its successors deny this last proposition. They bemoan the manner in which so-called leftist judges and politicians “rewrote the Constitution,” and they dream of “restoring the lost Constitution” of the Coolidge era.³ But by “the plan” I mean the Constitution’s structural provisions—the Constitution’s policy- making and adjudicatory procedures, including the procedures for appointing law makers and judges and the rules that specify their tenure of office. Sanford Levinson calls these provisions the Constitution’s “hard wired provisions” to distinguish them from the variable standards found mostly in the Bill of Rights and the Civil War Amendments. Structural provisions are “hard wired” because there’s little debate about what they prescribe. They don’t invite competing conceptions the way “due process” and “freedom of speech” do, and this gives them some insulation from change by judicial interpretation.⁴ Right-wing critics of today’s national government claim that it has exceeded its authorized powers, usually at the expense of the states; they don’t normally claim that national institutions were unlawfully established, or that national politicians occupy their offices illegally, or that officials and institutions employ unlawful procedures. So when they charge that the national government is exceeding its powers they say, in effect, that a constitutional government is doing unauthorized things. By their account, the government remains constitutional even if much of its conduct is unconstitutional.

There are times when officials are said to occupy their offices illegally and proceed to their decisions in unlawful ways. Military tribunals in wartime are frequent targets of these accusations. Congress was an unlawful body when it effectively denied representation to somewhere between a quarter and a third of the nation between 1865 and 1870. The current Senate practice of letting forty- one votes block consideration of politically significant actions and the Hastert Rule among House Republicans effectively defeat the constitutional plan of decision by legislative majorities for routine domestic matters. And for over two centuries many observers have seen the Constitution’s ratification itself as an unlawful act. But critics don’t normally refer to structural issues like these when they claim the national government exceeds its powers. And if the national government has in fact exceeded its powers, the Constitution deserves some of the blame. More than a set of rules for governing and recruiting governmental officials, the Constitution’s hard-wired provisions include rules that define and arrange constitutional offices. These rules can’t be understood apart from the assumptions that justify them. Among the Constitution’s key structural ideas is the principle of checks and balances. If the national government has exceeded its authority, or to the extent that it has, then the system of checks and balances hasn’t done what The Federalist says it was designed to do: prevent abuses of authority.

The framers’ claim for checks and balances was far from modest. With a measure of pessimism about the patriotism and law- abidingness of Americans generally, The Federalist promises that the system of checks and balances will prevent abuses of authority even among officials who are personally inclined to exceed constitutional restraints, because they answer to constituents governed more by their private interests and partisan commitments than their devotion to the Constitution and the common good.⁵ So if politicians have exceeded their authority, then the Constitution has failed to that extent, for constitutional checks and balances were supposed to confine institutional actors to their proper spheres. In general, therefore, it’s hard to deny that sustained political dysfunction has at least some constitutional connection—even when the political dysfunction results from constitutional infidelity. As Jack Balkin puts it, American politics is conducted within a constitutional framework, and this makes it fair to call the actual conduct of the national government and American political institutions generally as “the Constitution in practice.” To say that our politics is failing is to say that the constitution in practice is failing, and therefore so is the Constitution.⁶

Why deny that the Constitution is failing? Why the reluctance to acknowledge the constitutional dimension of our sick politics? The explanation, of course, is that the general public venerates the Constitution and its framers. In Federalist 49 James Madison argued that the public’s veneration of the Constitution was necessary to political stability because postrevolutionary America couldn’t be trusted with the tasks of constitutional repair. All of the nation’s existing constitutions, he said, were formed “in the midst” of revolutionary pressures and opportunities that “stifled the ordinary diversity of opinions on great national questions,” produced “a universal ardor for new and opposite forms” of government, and promoted “an enthusiastic confidence of the people in their patriotic leaders.” “The future,” he said, promises no “equivalent security” against “the spirit of party.” And therefore, he concluded, it’s best to make the Constitution hard to amend and trust time to make it an object of veneration (49:340–341).

Madison’s argument is not what it appears to be. It is not really an argument for venerating the Constitution—it is not an argument that the Constitution deserves veneration. It is at best an argument for cultivating veneration on the part of those who, if they don’t venerate the Constitution, are likely to make it worse. It’s also an argument that assumes a measure of constitutional adequacy. It assumes, in other words, that government under the Constitution is approximating constitutional ends more or less as well as can be expected under the circumstances. It assumes further that some element in the community is exempt from its scope, for if all venerated the Constitution, none could make the calculations and comparisons needed to determine whether the government was actually doing reasonably well. Madison’s argument for veneration is thus an argument for pretending to venerate, not really to venerate. As such, it could be a good argument if incorrigible political division or incompetence threatened to make things worse. Pretending to venerate a constitution would also make sense if there were no way to arrest constitutional decline. Why not comfort the dying with illusion if that’s the best one can do? So I’m not saying that Madison’s argument is a bad argument in all circumstances. In fact, I concede, as I believe all candid observers must, that it’s probably (though not quite certainly) a good argument today. Nevertheless, it’s a bad argument for those who have any hope for the Constitution’s survival. And since the present discussion would be pointless without such hope, it’s a bad argument here.

Why Venerating the Constitution Is a Bad Idea

Veneration is a state of mind that takes its value from the value of its object and the consequences of venerating the object. No one would, or should, venerate a golden calf, or the gold in the calf. Yet even regarding things that deserve veneration, veneration has a regrettable side. This is certainly true when the objects of veneration are human things. Veneration implies a kind of blindness: we’re blind to the flaws of the persons and things we venerate, insofar as we venerate them. Veneration of the Constitution can blind us to the need for constitutional reform, and a constitution beyond timely reform is a failure waiting to happen. As an abstract matter, instruments are subordinate in value to their ends; the effectiveness of an instrument depends on contingencies beyond the instrument’s control; an instrument that can’t adapt to changing circumstances will fail when circumstances change; and, sooner or later, circumstances will change. This argument of general practical reason is beyond debate. Yet how this argument applies to the Constitution is not at all beyond debate. No one will deny that things change—that is, that matters subject to government change. Most will agree or should agree that the Constitution can’t work under any and all conditions, like severe natural disasters and sustained terrorist assault. True, it’s been said that the Constitution “is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times, and under all circumstances.”⁷ But even if anyone seriously believed this, the contrary is implied by the amending provisions of Article V. The very existence of an amending rule in the constitutional document implies that the nation may need to change the Constitution to meet changing conditions, and therefore that at any given point in time the Constitution may not be adequate to conditions. We’d surely agree that no government could control all of its natural and political environments and that, therefore, constitutional government can’t guarantee the conditions for its successful operation. And since a constitution that hasn’t reformed before it’s too late is a dead constitution, we can agree that, by definition, timely reform (reform that’s not too late) and the capacity for timely reform are essential to constitutional survival.

With all this, however, we might still disagree about the Constitution’s instrumental nature. That is, we might disagree about the wisdom of understanding the Constitution for what the document’s preamble clearly says the Constitution is: a set of means to independently valued goods like justice, the common defense, and the general welfare. As a matter of general practical reason there can be no question that ends are more important than means. But since politics rarely bends to practical reason, one can deny that ends are always more important than means. Ends may not be more important if the meaning of the means is less contested than the meaning of the ends and if the means serve an array of ends broad enough to avoid violence. If we disagree about the meaning of ends like justice and the general welfare, if this disagreement falls short of violence, and if the meaning of justice and the general welfare is pursued through institutional rules that are clear enough to minimize debate about who performs what functions (constitutional means), then in this context means acquire a heightened importance.

Heightened importance or no, however, institutional means remain subordinate to ends. Institutions exist in a context that assumes that they have a point—that they serve some ends or goods—and at no point could we conceive institutional means as ends in themselves. That is, constitutionalists can’t conceive institutional means as ends in themselves. For propositions within a constitutionalist framework must be consistent with the idea of people establishing a constitution, and no one would establish a government with powers to extinguish life, liberty, and property for the sole pleasure of watching the government operate. The ends, moreover, must be conceived as public goods. Even if individuals agreed to a government solely to secure their personal safety and property, they would have to justify the government to each other in terms broader than their personal interests. They’d have to say the government served some public purpose or common good, like the security of everyone’s person and property, a common good that would restrain the private pursuits of each contracting party. (A tyrant might, but no democrat would say to other persons generally: “This is a good government because it secures my property alone.”)

Yet the greater importance of constitutional ends remains debatable for a further reason: the Constitution’s self-proclaimed status as “supreme Law.” Where a set of means is supreme law, means are more than mere means. We would need no more than Jefferson’s “light and transient causes” to abandon a set of mere means. We would need much more than “light and transient causes” to disregard supreme law. Where means became supreme law, we’d have “to suffer, while Evils are sufferable,” acting only when evils approach the unbearable. But as mandatory means became increasingly unbearable they would revert to mere means, and we could and should act by “Right” and “Duty” to replace them with new means—that is, real means, means that work.

Such is the understanding of the American creed that Jefferson recorded in the Declaration of Independence. Madison reiterated this understanding in Federalist 45 where he recalled the Revolution and said that “the real welfare of the great body of the people, is the supreme object,” and that “no form of government whatever,” including the Union, “has any other value than as it may be fitted for the attainment of this object” (45:309). Supreme law thus remains instrumental if not merely instrumental, and the apparent leap in logic that reduces supreme law to mere means is bridged when we recall that, by its own preamble, the document declares that supreme law was proposed and ratified as means. The Federalist supporters of the Constitution justified it as means, and the Antifederalists criticized it as means. So when the “Constitution in practice” ceases to function as means, it is no longer what was ratified,...

Table of contents

• Front Cover
• Title Page
• Copyright Page
• Dedication Page
• Contents
• Foreword by Jeffrey K. Tulis
• Preface
• Acknowledgments
• 1. Why Talk about Constitutional Failure?
• 2. Failure at What Kind of Thing?
• 3. Failure at What, Specifically?
• 4. Constitutional Failure: Mostly (Though Not Entirely) Attitudinal
• 5. Constitutional Reform and Constitutional Thought
• Notes
• Index
• Back Cover