Wednesday, October 06, 2010

Constitutional Idolatry Vs. Constitutional Fidelity

Lexington is half-right in eir recent column about constitution worship within the Tea Party movement. There is indeed a trend towards deification of the Founders among this segment of society, a fact which I noted in passing in my post on Glenn Beck's Common Sense. It is, however, a mistake to assume that everyone calling for strict adherance1 to the Constitution is motivated by "constitutional idolatry" or dreams of "a return to prelapsarian innocence"; there are good arguments to be made for hewing as closely as possible to the principles laid out in the Constitution which have nothing to do with either.

There are a lot of ways to approach this particular issue, perhaps the simplest of which is to ask "Does the Constitution constrain the actions of the Federal government?". Presumably Lexington would answer that question in the affirmative, in which case my follow-up would be "Under what authority may the Federal government ignore those constraints?". I would argue that there is no such authority, whereas ey seems to have something else in mind. Consider this quote from the end of the article:

None of this is to say that the modern state is not bloated or over-mighty. There is assuredly a case to be made for reducing its size and ambitions and giving greater responsibilities to individuals. But this is a case that needs to be made and remade from first principles in every political generation, not just by consulting a text put on paper in a bygone age.

Absolutely! Every generation, every person, should seek to construct a coherent ideology for themselves from first principles. While they're thus occupied, however, something has to keep the government from overstepping the bounds which are currently in place. And, once the political generation has made up its mind, the various representatives thereof have to get together and reconcile the conflicts that will inevitably arise between different conceptions of the pursuit of happiness. The Founders, in their wisdom, provided the amendment process as a procedural framework for this type of reconciliation.

Which brings me to my second point: characterizing the Constitution as a "text put on paper in a bygone age" is, to put it charitably, incorrect. It, as Lexington is well aware, had been amended multiple times since its institution, fixing some of the problems (such as a greatly restricted franchise) which the Founders introduced with the original version. In this sense it is a document of relatively recent vintage; the contention that we're perpetually constrained by the archaic beliefs of the Founders is balderdash.

Close reading of eir article reveals a quote which suggests that we have a disagreement over the basic purpose of a constitution:

More to the point is that the constitution provides few answers to the hard questions thrown up by modern politics. Should gays marry? No answer there.

That's a feature, not a bug. Political questions will have multiple solutions; the purpose of a constitution is not to select one solution in particular but rather to define the boundaries of the permitted solution space. "Should gays marry?" is a normative question which, in my opinion, the government has no business answering. The appropriate question to ask is "To what degree is the government permitted to regulate gay marriage?"; that's a question which the Constitution is competent to answer.

As I said before, Lexington is half-right: the Constitution, by itself, doesn't provide the answers to all political questions. But it does provide an agreed upon framework by which each political generation may work out the messy details for itself. For this reason some (perhaps small) fraction of the individuals whom Lexington has tarred as constitutional idolators see fidelity to the Constitution as a matter of pure procedural justice. The Constitution represents the "rules of the game"; for an individual or institution to decide that ey are not bound by its constraints is not only an act of hubris but also incorrect as a matter of procedure.

Which brings us to the question of alternatives; what principle would Lexington propose as a substitute for constitutional fidelity? Surely any legitimate political order must include some fundamental set of rules by which the actions of government are constrained. If such an order is to maintain its legitimacy the government's actions must be well and truly bound by these rules at all times, not just when its convenient.

And that, I think, is the moral of the story: government has to play by the rules even when its inconvenient. It may very well be the case that the Constitution "gets in the way" of otherwise salutary activities such as the provision of universal healthcare and that, as a consequence, we're willing to ignore such violations of the government's mandate. If we do so, however, we have no cause to complain when the government oversteps its bounds in a fashion which we find objectionable.

1 The phrase "strict adherence" makes my skin crawl, but seems apropos in the current context.


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