Tuesday, September 17, 2013

When Should Constitution Day Be Observed? And Some Thoughts on the Constitution's Non-Fundamentality

By Mike Dorf

Another Constitution Day is upon us.  As I noted last year, a law hatched by the late Senator Robert Byrd mandates that institutions receiving federal funds (like Cornell) commemorate the anniversary of the Constitution with an annual day of educational programming.  Here is the program at Cornell:

Noon Panel: "The State of the Constitution" with me, my colleague Josh Chafetz, Rich Ford of Stanford, and moderated by my colleague Chantal Thomas.

3:45 Panel: "The Constitution in the World" with Cornell English Professor Liz Anker, my colleague Laura Underkuffler, Noah Feldman of Harvard, and moderated by my colleague Aziz Rana.

What am I saying about "the State of the Constitution"?  Well, to be honest, until the weekend, I didn't realize that the panel even had a title.  I was told simply to say something about the Constitution, connecting it to my scholarship if I wanted.  Here's the condensed version of my remarks:

Since the inception of Constitution Day in 2005, various commentators have problematized the idea of Constitution Day.  I want to continue in that tradition by asking when is Constitution Day, and using that inquiry to open up some questions about the nature of Constitution Day, the Constitution, and ultimately, popular consent.

Why do we celebrate Constitution Day on the anniversary of the signing of the Constitution in the Convention, rather than on June 21, when, in 1788, New Hampshire became the ninth state to ratify, thus fulfilling the terms under which the Constitution would become effective?  Is it because New Hampshire's ratification--while bringing the total of states to the necessary minimum--did not really guarantee the Constitution's effectiveness?  After all, Virginia would not ratify the Constitution for another few days, and New York for another month.  Even though the Constitution said it would be effective among the ratifying states as soon as nine states ratified, in practice it is hard to imagine the Union surviving without Virginia or New York.

Indeed, perhaps we ought to celebrate Constitution Day on May 29, commemorating the ratification by Rhode Island, the thirteenth state.  After all, Article XIII of the Articles of Confederation provided that only unaninimity of the states could alter the Articles.  But that can't be right either, because Article XIII required that state legislatures approve amendments, whereas the Constitution was originally ratified by state ratifying conventions.  So celebrating on November 21 would be tantamount to admitting that the Constitution was illegal.

Perhaps we celebrate on September 17 because Senator Byrd had in mind an old-fashioned notion of "original intent" of the framers, rather than the view that now prevails among academics who call themselves originalists--that the act of ratification made the Constitution law and what it enacted was the "original semantic meaning" of the words.  Perhaps Byrd thought that the "Miracle at Philadelphia" was the key event because he equated the Constitution with the intentions of its framers.

I hardly think that's a necessary implication of the choice of date, however.  Surely the semantic meaning (which is what normal people simply call "meaning") of the words of the Constitution did not change in any substantial way between September 17, 1787 and May 29, 1790, when Rhode Island ratified.  Indeed, one might say that the proposal date (Sept 17, 1787) is the more important date for semantic-meaning originalists because that was the date when the public debate about the Constitution began.

I'll return to originalism momentarily, but first I want to take a detour into the very idea of Constitution Day.  The educational initiatives that are at the heart of Constitution Day are rooted in the accurate perception of widespread ignorance about civics among Americans.  Public polling routinely shows confusion about such basic matters as whether the Constitution contains the Marxist slogan "from each according to his abilities to each according to his needs."

Yet many Americans are undoubtedly confused about other things as well, such as the origins of human life, the threat posed by man-made global warming, and the religion of the current President. Why should federal funds to educational institutions be tied to education about the Constitution rather than to education about these--and/or other--topics?

As a historical matter, politicians and activists across the ideological spectrum have turned to the Constitution for a variety of reasons: to build solidarity; to claim the mantle of patriotism for whatever cause they espouse; to argue that they, rather than their political opponents, are attempting to redeem, or return to, the nation's core principles.  But the sense of urgency for a broad campaign of education about the Constitution without any distinctive tie to a particular political movement strikes me as serving a somewhat different aim.

I suspect that Senator Byrd and the other lawmakers who created Constitution Day rather than Evolution Day, Global Warming Day or Obama-Is-A-Protestant-Christian Day were driven by the belief that the Constitution is somehow more fundamental to citizen participation in our democracy than other matters are.  After all, the Constitution sets up the basic institutions of government within which voters exercise the franchise.  Before we worry about getting Americans up to speed on issues relating to specific policy questions, the theory would go, we need to ensure that they understand how the system functions.

That supposition strikes me as dubious as a factual matter.  A voter can know a great deal about where she stands on some particular issue--gun control; the death penalty; same-sex marriage; abortion; etc.--and be able to successfully identify candidates who share her views on these issues, without knowing all that much about the Constitution.  As the two major political parties have become more clearly divided ideologically in recent years, the task has been made even easier for voters.  So knowledge about the Constitution is hardly a prerequisite for effective democratic participation.

Moreover, the supposition that the Constitution is more fundamental than anything else also strikes me as wrong.  Suppose that Americans decided tomorrow to abandon the Constitution and to organize our legal and political systems in some other way.  Some years ago, Bruce Ackerman and Akhil Amar each in his own way offered theoretical grounds for thinking that it would be possible for the People to substantially change the Constitution without adhering to the amendment process while operating within the same legal universe of the Constitution.  Maybe you agree; maybe you disagree.  Still, no one disputes that it would be possible--as a matter of brute fact--for Americans to let go of the Constitution and replace it with something else.  Put in terms we owe largely to H.L.A. Hart, what makes the Constitution the law around here is the social convention that we treat it as the law.  The Constitution is like paper money.  It has no inherent value.  Its value derives from everybody's willingness to treat it as valuable.

What's true of the Constitution is also true about efforts to discern the Constitution's meaning. Originalists--of all stripes--sometimes talk as though their method for interpreting and construing the Constitution is simply the only honest way to do the job.  Yet everything depends on what that job is, and that is ultimately determined by the same sorts of conventions that make the Constitution law in the first place.  And those conventions are themselves a product of the political system.

Originalism provides a nice illustration.  One can find examples of judges seeking the original understanding of the framers and ratifiers in very old cases, but the idea of originalism as an ism, that is, as a distinctive methodology/ideology, is a relatively recent innovation.  Raoul Berger was probably the first modern originalist, but originalism as a movement got going somewhat after the publication of his controversial Government by Judiciary.  Modern originalism sprang from the Federalist Society and the early Reagan Administration.  It has been as successful as it has been--which is to say quite successful--for three reasons: First, there is a certain commonsensical appeal of originalism that makes it an easy sell to the public and politicians; second, as Republican Presidents appointed originalist-leaning judges and Justices to leading positions in the federal judiciary, they shifted the discussion in originalist directions; and third, the Federalist Society's well-to-do patrons successfully promoted originalism (and related ideas), thus adding encouragement for academics to provide intellectual respectability.

Nonetheless, originalism's future looks dim.  Demographics suggest that Democrats will increasingly win the Presidency in the short to medium term, at least until the Republican Party reinvents itself or we see dramatic realignment.  Although Democratic appointees may play the originalism game when they are in the minority, there is no reason to think that the sort of Justices and judges that future Democratic presidents appoint will be originalists in any real sense of the word.  With originalism on the wane in the Supreme Court, academic interest in it is likely to wane as well.

That doesn't mean that originalism will entirely disappear.  Academic careers have trajectories, so people who have already invested a good deal of their reputation in the project will continue to beat the drum.  Furthermore, even non-originalists are interested in the original understanding for historical and other reasons, so scholarship that aims to uncover original meaning will continue to be valued.  Still, it would be surprising to see the originalist movement thriving in a world dominated by nonoriginalist judges and Justices.

But perhaps this analysis overlooks the possibility that originalism could thrive as an opposition movement, as a kind of insurgent position to which conservatives feel even more strongly tied than ever as they perceive themselves having been unjustly thrown out of power?  I'll concede that that's a possibility, but I wouldn't bet on it.

As I've said, originalism got going in the first place as a means of achieving conservative political ends.  I acknowledge that it became more than that, but notwithstanding the odd liberal originalist like Jack Balkin, conservative political druthers are the life blood of originalism.  And so the question is whether future efforts to stave off political decline by the Republican Party would include an originalist rallying cry.

I tend to doubt it, because the fundamental problem the Republican Party faces is that its shrinking base consists disproportionately of old white men.  I'm not a political guru by any means, but it does strike me that a Republican Party aiming to broaden its appeal would be ill advised to rest any part of its platform on a view of our fundamental charter that attributes meaning to the views of a group of people who are not only exclusively white and male, but also really old, in fact so old that they are all dead.


Postscript Acknowledgment: Some of my thoughts on the past and future of originalism arose out of recent separate conversations with Mark Tushnet and Neal Devins.