Wednesday, April 10, 2019

Why is the Constitution Authoritative?

by Michael C. Dorf

I was recently asked by a Minnesota high school student to contribute a short essay to a website on which legal scholars and judges answer the following question: "What is the most important aspect of the constitution that is not commonly known across America?" I have reproduced my answer after the jump. As a postscript, I include a few comments on the project as a whole and some of the other contributions.

I am not sure what is the most important aspect of the Constitution that is not widely known, but I can identify an important such aspect: just what makes the Constitution the supreme law of the land.

To be sure, many people likely think they know the answer. Article VI says: “This Constitution . . . shall be the supreme law of the land.” If you took an exam in a high school civics class, you might receive full credit if you wrote that this language makes the Constitution the supreme law of the land.

But a moment’s reflection shows that cannot be a complete answer. Suppose I hand you a piece of paper on which someone has written what purports to be a very different constitution, perhaps one that contains just four provisions:
Article I. The form of government of the United States shall be an absolute dictatorship.
Article II. The dictator shall designate a successor and shall serve for life or until such time as he or she abdicates.
Article III. The initial dictator shall be Jared Kushner.
Article IV. This Constitution shall be the supreme law of the land.
The Kushner Constitution, no less than what we regard as the actual Constitution, declares itself to be the supreme law of the land, but no document can make itself supreme simply by saying so. You need some other reason for thinking the familiar Constitution is binding while the Kushner Constitution is a fraud or a joke. What other reason might you have?

Many judges, lawyers, scholars, and laypeople would say that the familiar Constitution is authoritative because it was lawfully ratified by the states in 1789. Yet that answer seems inadequate too. For one thing, the Constitution was not lawfully ratified, at least not under the pre-existing law under the Articles of Confederation, which required unanimity for any amendments; however, Article VII of the Constitution made it effective among the ratifying states upon ratification by nine rather than all thirteen states. True, all thirteen eventually ratified, but Rhode Island did not do so until May 1790, eight months after the new government got going in violation of the Articles of Confederation.

More fundamentally, even setting aside the original Constitution’s dubious legality, how can its ratification 230 years ago by representatives of an electorate that excluded women and enslaved African Americans render it a legitimate authority for our diverse polity of today? This question reflects the so-called dead hand problem. The Constitution imposes all sorts of limits on what democratically elected governments can do. It even limits the extent to which the US functions as a democracy or a representative republic, by, for example, over-representing the small states in the Senate and the Electoral College. Seen from this perspective, ratification 23 decades ago hardly grounds the Constitution in democratic principles; it undermines such principles.

Aha, you might say, but contemporary Americans can amend the Constitution, so when we do not amend it we thereby tacitly consent to be bound by it. That would be a reasonable answer were the amendment procedure readily usable. Yet of all the constitutions adopted by countries that count as representative democracies, the US Constitution is the world’s hardest to amend. Even very popular proposed amendments can be blocked by representatives of a majority of the population of just the thirteen least populous (or any) states. The failure to amend the Constitution thus cannot be taken as evidence of its broad acceptability.

Perhaps we are looking for the wrong kind of account of what makes the Constitution binding. Perhaps we should not look for a justification but should instead seek a mere explanation. One explanation readily suggests itself: The familiar Constitution rather than the Kushner Constitution or any other rival is binding because the relevant government authorities treat it as binding. This answer, which follows the approach laid out by the late British legal scholar H.L.A. Hart, treats the Constitution’s legality as a kind of social fact.

The main problem with accepting Hart’s view is that it strips the Constitution’s legality of any special democratic legitimacy. After all, it is easy to imagine how government authorities might treat a very different sort of document or institution as binding. Indeed, we need not use our imagination. Applying the Hart criterion, we can say that it is a social fact that the government of North Korea is a dictatorship under Kim Jong-un. (North Korea has an official constitution that purports to guarantee rights like freedom of speech, but the de facto constitution of North Korea is more like the Kushner Constitution with Kim substituted for Kushner). Are we really prepared to say that the US Constitution’s legality, like the Kim regime’s rule, rests on no more than brute force?

Ultimately, there may be no fully satisfactory account of the Constitution’s authority. At most we may be able to explain the binding force of the Constitution by combining a brute social fact – that authorities and most ordinary citizens accept the Constitution’s authority – and some reasonably  attractive features of the Constitution: Although hardly perfect, our familiar Constitution establishes a roughly representative system of government and, as construed by the courts, it generally protects important civil and political rights.

That account of what makes the Constitution legally binding probably does not fully satisfy anyone. But to demand more would be unrealistic. One need not be taken in by the myth that the Constitution derived from a 1787 “miracle in Philadelphia” to find it nearly miraculous that a document drafted three decades before the invention of the bicycle functions at all in a country that sends probes beyond the solar system.

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Postscript: Now I'll add a few comments on the project overall and some of the other contributions.

(1) I think the question is not ideal. It asks legal scholars to identify aspects of the Constitution that are not commonly known. That part of the question calls for expertise in public opinion and public knowledge. I lack expertise in such matters. I don't know that the other people who wrote answers for the website have the relevant expertise either.

(2) Even assuming we know from our own encounters with laypeople what misconceptions are common, by what metric do we measure the importance of the various aspects of the Constitution about which people have misconceptions?

(3) For example, Aaron Caplan identifies the state action doctrine as the most important not widely known feature. Based on my own anecdotal experience, I think he's right that many laypeople are unaware of the state action doctrine. They will invoke the First Amendment in complaining about censorship by privately owned social media companies. And let's grant that the state action doctrine is very important, so that Caplan has provided an arguably correct answer to the question as posed.

But the question as posed is problematic (in addition to the ways listed above) in that we might want to know whether it matters that many people don't know about some important doctrine. Put differently, we might want to know whether ignorance of some aspect of the Constitution is important, not just whether people are ignorant of some important aspect of the Constitution.

I don't think ignorance of the state action doctrine is problematic, however. To the extent that we think (on Brandeisian grounds) that private actors can abuse power in ways similar to how governments can abuse power, we might actually be happy that people invoke constitutional values in contexts in which they do not, as a technical matter, apply.

(4) Meanwhile, Randy Barnett's contribution to the forum is at best tendentious. He says that many people don't know that even before the Bill of Rights was adopted, the Constitution already forbade violation of a fundamental right, because a rights-violating law would not be "proper" within the meaning of the Necessary & Proper Clause. I suppose Prof Barnett is right that many people don't know this, because it is impossible to know something that is false.

It's true that at the Founding many people believed in natural rights, but the notion that the Constitution withheld the power to violate natural rights even apart from any constitutional text was highly controversial. That view was more or less articulated by Justice Chase in Calder v. Bull in 1798 but also pretty clearly repudiated by Justice Iredell in the same case. And Barnett's suggestion that the "proper" part of the Necessary & Proper Clause invalidates laws violating natural rights seems to contradict John Marshall's argument in McCulloch v. Maryland that the Clause, coming as it does in Article I, Sec. 8, does not limit the powers specifically enumerated.

To be sure, Prof Barnett has argued for his view of the Necessary & Proper Clause and more broadly for his libertarian reading of the Constitution in books, articles, and briefs. Thus, although I disagree with it, I think it fair to say that his view falls within the broad range of possible understandings of the Constitution. But that is a far cry from saying that someone who disagrees with him doesn't "know" something about the Constitution. Indeed, it would be less tendentious for me to say that many people don't "know" that originalism as actually practiced is no more determinate than other interpretive methodologies but functions simply as a means by which conservative judges and justices hide their value preferences from the public (and perhaps even from themselves).

(5) Finally, I want to commend the organizers of the website for inviting comments from somewhat cynical academics (like Sandy Levinson and, in some respects, me), rather than from judges only. The latter understandably took the opportunity to inspire the youth with patriotic treacle like "I hope and expect our constitutional democracy will continue to be a guiding beacon for centuries to come."