Dr. Nathan Griffith is an associate professor of political science at Belmont University in Nashville, Tennessee. He teaches constitutional law, European politics, political economy, and methodology. He is currently on sabbatical while he finishes a forthcoming textbook on American government.
On the last day of the year past, Louis Michael Seidman wrote an op-ed in the New York Times advocating that we “give up on the Constitution,” as our following it had left us “teeter(ing) at the edge of fiscal chaos.” He asks why “a lame-duck House, 27 members of which were defeated for re-election, (should) have a stranglehold on our economy? Why does a grotesquely malapportioned Senate get to decide the nation’s fate?” The heart of his objection comes with this:
“Imagine that after careful study a government official—say, the president (sic) or one of the party leaders in Congress—reaches a considered judgment that a particular course of action is best for the country. Suddenly, someone bursts into the room with new information: a group of white propertied men who have been dead for two centuries, knew nothing of our present situation, acted illegally under existing law and thought it was fine to own slaves might have disagreed with this course of action. Is it even remotely rational that the official should change his or her mind because of this divination?”
As Mr. Seidman puts the question, the answer is a definite “no.” That, however, is the problem. It is truly disappointing—and perhaps revealing—that someone who studies constitutional law has never bothered studying the Constitution. We do not listen to James Madison or others from the founding era because of any of the characteristics Seidman lists. We do not even listen to them because they happened to be the people in the room at the inception of the Constitution. We listen to them because of their expertise.
As Seidman correctly points out, both “originalism” and “living constitutionalism” are non-sense. The second is nonsense because it is wish fulfillment dressed up in the clothes of truth and justice. If the Constitution grows and changes, then we may discover whatever growth or change we wish to see. We find the outcome we desire, whether because it is expedient or practical or what the judge finds just, then re-read the laws to justify that outcome. Nor, for that matter, is this a recent practice: John Marshall read the word necessary to be a synonym for convenient in 1819 (as well as in defiance of all common sense and reference works).
If the second suffers from a lack of guiding principle, the first suffers from too many. “Originalism” is the attempt to divine what “the Founders” intended when they wrote the Constitution. This is non-sense, because like most experts, the Founders disagreed among themselves, so we would first have to decide to whom to listen among the cacophony. Actually, we would first have to decide who qualified to be “a Founder.” Those at the Philadelphia Convention? If so, for how long? (Not all stayed for the duration.) Those who wrote letters and pamphlets? Those at the state ratifying conventions?
We want a simple, bright-line distinction, but the only reason to prefer one expert over another is their expertise, the quality of the reasoning they give—not because of their skin, property, life, death, tolerance or even endorsement of slavery. The question is not the extent to which any of them possessed any of those characteristics; the question is to what extent they knew what they were doing in designing a system of government to preserve liberty.
So why should we constrain government so that revenue bills have to begin in the House? Why should we have an imperfectly apportioned Senate be able to refuse whatever the House does? It is Mr. Seidman’s hypothetical scenario that gives the answer. Do any of us truly believe that a government official will engage in careful study or reach a considered opinion? They may cloak their actions in those words, and there may be occasions when those words actually fit, but most politicians are, at best, merely human.
That is, politicians’ consideration is of their welfare: what will get them re-elected. Anyone who bothers to follow Presidential elections will quickly agree with Douglass Adams, that anyone capable of getting themselves elected should on no account be allowed to do the job. Our election process does not produce careful study or considered opinion; witness the candidacies of Paul Tsongas, Fred Thompson, Bill Bradley, Pierre DuPont, or anyone else who tries to explain the product of careful thought and study to the populace.
The ugly truth is that what is popular is not always right, true, or just. Slavery, to borrow Mr. Seidman’s inflammatory interjection, was at one point quite popular. So was eugenics, the idea that we should remove the infirm and diseased (and any other unpopular group) from the gene pool before they reproduced. What is popular gets you elected, though.
So the people who happened to be framing our government had the sense to realize their own limitations and built a system to balance the good part of the need to be popular and get re-elected (it keeps politicians from abusing the majority) with provisions to limit the bad part (being popular with the majority for abusing the minority). That’s why we have a Senate proportioned perfectly by state (and Senators were originally elected by state legislatures) and House proportioned by population. The majority can seek what they want, but the minority can protect themselves through the political process (assuming they are allowed to participate in it).
The framers even had the sense to provide a way for the Constitution to change and grow, for later generations to make it live for them: the amendment process. We have used it to give access to those originally denied it. The amendment process, however, is not very popular, because it requires the agreement of a very large part of the nation. Even more than our political process, it does not happen quickly and it does not happen rashly, because even more factions have a chance to object.
That is to say, we should hold tight to the Constitution, because those who wrote the rules had the good sense to make them require careful study and considered opinion, and required they be careful and considered enough to convince those who would have to live with their effects.
That, in the end, is why we should lend careful consideration to what the Founders said. They designed a machine that worked brilliantly to balance popular government with individual liberty. When we understand that machine, we can modify it to make it more powerful—this is not a static position. However, when we start to modify it without ever understanding how it works, we court disaster.
In fact, to return to John Marshall for a moment, it is the times we have abandoned the Constitution, often circumventing the amendment process, which have produced this mess. Supreme Court decisions (McCulloch v. Maryland and Wickard v. Filburn) expanded federal power at the expense of the states. The 16th and 17th Amendments gave the federal government more influence and the states less. Rather than a more robust, decentralized system, one more resilient to shock and less susceptible to crashes, we have moved to a more modern, more popular centralized government that lets the majority get what it wants.
And this, in the end, is Mr. Seidman’s problem. Like most people, he facilely assumes that his preferences and interests are everyone else’s, that if government would just “give us what we want,” we’d be happy. So he advocates a stronger government, one that can deliver him his every wish—forgetting that a government that can deliver your every wish can deliver your every nightmare, too. He blithely ignores the most critical part: figuring out what “we” (as opposed to I) want.