liberals, conservatives, and love of the Constitution

Reverence for our written Constitution is a highly unusual feature of the political culture of the USA, sometimes verging on a civic religion. Teaching students to hold the Constitution in high regard is also an unusually prominent purpose of civic education in this country. And of course, our Constitution is the oldest in the world and (to the best of my knowledge) the one least subject to change, which means that it has run as a cord through our whole history since 1788.

According to a 2011 Time/Abt SRBI poll, which is the most recent survey I have found, 64% of Americans believe that the Constitution has “held up well” and doesn’t need change.

That is a majority, but not an overwhelming one, and opinions differ by ideology. According to the same poll, 62% of Republicans are “strict constructionists,” believing that the constitution should be interpreted according to the framers’ original intent. In contrast, 67% of Democrats favor “flexibility.” And Democrats are more open to the idea of a new constitutional convention to change the document.

I would challenge the presumption that conservatives do (or should) like the Constitution more than liberals do. One could argue that everyone reads the document selectively, with some favorite parts and other sections that we would rather delete if we could. Conservatives are enamored of the list of enumerated powers, the Second Amendment, and the Tenth Amendment (among other passages). Liberals are more excited about the Necessary and Proper Clause, the First Amendment, and the Fourteenth Amendment. Many liberals have acknowledged that they would get rid of the Second Amendment if they could. But some strong conservatives would like to repeal the Sixteenth Amendment (allowing the income tax) or even the Seventeenth (direct election of US Senators). Candidates Trump, Paul, Santorum, Graham, Christie, Carson, and Jindal, and (less consistently) Kasich and Walker have said that they would end the birthright to citizenship that is central to the Fourteenth Amendment. That hardly reflects reverence for the document as it is today.

At the same time, I would criticize the bipartisan tendency to constitutional piety and the way that it restricts our constitutional imaginations. There are many reasons to think the document is flawed. Just to name one, the separate election of presidents and congresses is a recipe for gridlock or even for constitutional crises, averted so far mostly because our parties didn’t polarize ideologically until the end of the 20th century.

James Madison made sure to study the experience of as many republics as he could before he traveled to Philadelphia to begin writing the Constitution. No one who undertook a similar study nearly 250 years later would design a constitution with a powerful, separately elected president; and actual new democracies never copy our design nowadays.

Another flaw is a set of massive omissions. The real political system of the 21st century is characterized by corporations, political parties, permanent military and security agencies, and a very large administrative/regulatory state. The Constitution is silent on all of those institutions. The Citizens United decision did not–contrary to received opinion on the liberal side–define corporations as people, but it did treat them as regular associations under the First Amendment. Parties and unions also get lumped together as associations because they are not otherwise recognized in the text of the Constitution. And since the Pentagon, the intelligence agencies, and the regulatory state are missing, courts struggle to understand these entities as creatures of the legislature that are lodged within the executive instead of branches of government with their own powers, perils, and limitations.

If you are a libertarian constitutional originalist, you have a clear and simple solution to these omissions. Get rid of the regulatory state, which isn’t an enumerated power of Congress and which unconstitutionally delegates legislative power to unelected executive branch staff. Once the federal government is unable to regulate, corporate political power will become unimportant because there will be little to lobby on. That is a consistent view, and it reinforces enthusiasm for the text of the Constitution, which becomes the basis for a radical reform movement. But no one has ever seen a globalized corporate economy without a regulatory state. I am not sure it is possible; I certainly doubt that it would be desirable or popular.

Assuming, then, that we will continue to have people like party leaders, lobbyists, spies, and regulators, their powers and limitations should be addressed in the Constitution.

More generally, to imagine improvements to a society’s constitutional order seems an important form of citizenship. Even for children, it is interesting and valuable to debate changes in the Constitution or whole alternative documents. Adolescent and adult activists should be free actually to pursue such changes. Our constitutional piety has advantages (reinforcing the stability of our system, restraining certain kinds of populist excess, and providing a superior alternative to ethnic nationalism), but it badly restrains acts of constitutional imagination that should be part of active and creative citizenship.

See also constitutional piety, is our constitutional order doomed?, are we seeing the fatal flaw of a presidential constitution?, on government versus governance, or the rule of law versus pragmatism; and the visionary fire of Roberto Mangabeira Unger.

About Peter

Associate Dean for Research and the Lincoln Filene Professor of Citizenship and Public Affairs at Tufts University's Tisch College of Civic Life. Concerned about civic education, civic engagement, and democratic reform in the United States and elsewhere.
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  • Chris Beem

    I had to look this up to make sure I got it right. This is what Jefferson had to say about the subject: “Some men look at constitutions with sanctimonious reverence and deem them like the ark of the covenant, too sacred to be touched. They ascribe to the men of the preceding age a wisdom more than human and suppose what they did to be beyond amendment. I knew that age well; I belonged to it and labored with it. It deserved well of its country. It was very like the present but without the experience of the present; and forty years of experience in government is worth a century of book-reading; and this they would say themselves were they to rise from the dead.” –Thomas Jefferson to Samuel Kercheval, 1816

    • PeterLevine

      This is the most excellent quote. It rings a distant bell, but thanks for reminding me of it!

      • Chris Beem

        Ellis’ latest, The Quartet, closes with this quote. He is such a great writer and always interesting. But he just eviscerates the Scalia argument about original intent.