Belz – Will The Constitution Survive the 21st Century?

Will The Constitution Survive the 21st Century?

Herman Belz

University of Maryland

Paper Presented to The Philadelphia Society, April 24, 1999

Most scholars with whom I have discussed the question that forms the subject of these remarks
think it is misconceived. It is more pertinent, in their view, to ask whether the Constitution has
survived the twentieth century: the New Deal, the radical assault on American institutions in the
1960s, and the Clinton presidency as the confirmation of that radical assault.

Does the Clinton impeachment trial show, as Charles Kesler has suggested, that the Constitution "is
alive and . . . healthier than one might think"? Is it reasonable to say, with James Ceaser, that the
Constitution "has actually been strengthened by the impeachment process as a whole," that plots to
deny or avoid the Constitution’s authority–for example, proposals to censure the President, dismiss
the articles of impeachment without a trial, or hold a trial without witnesses–were foiled, and that
"the Constitution emerged as the only higher ground to which the parties could successfully
appeal"? Or does the Clinton impeachment show the Constitution to be not a higher ground, but a
low, devalued, trivial, and not at all solid foundation for recovering and establishing anew limited
government for the sake of individual and local community liberty in civil society?

My approach is to regard the question as an invitation to reflect on the nature and tendency of
American constitutionalism at the present time, in the light of standards and principles held in the
past. Although there may be heuristic value in trying to track the trajectory of specific trends into
the future, political life is unpredictable, and I will not speculate on what might happen to judicial
activism, executive power, bureaucratic administration, states rights, federal centralization, etc. in
the future. One prediction I do make is that the text of the Constitution will continue to be referred
to, invoked, and argued about in political controversies. But in itself that fact does not tell us much,
especially when many who invoke the Constitution as text regard it as a mere "condensation
symbol" having no substantive content or real meaning.

As I see it, the question is whether, if limited government for the sake of individual liberty and
responsible social freedom does not exist, there is reason to think it can be recovered and restored.
Alternatively, if limited constitutional government does exist in the United States, or to the extent
that it does, is there a reasonable basis on which it can be strengthened and preserved?

The question of constitutional survival is not merely academic. If you say the Constitution has not
survived, you need to explain what the present reality is, and why, unless you have adopted a
noncooperationist stance, you accept a situation in which the form and substance of governmental
action are not legitimate because not sanctioned by valid constitutional authority. If the Constitution
has not survived, it might also be the case that governmental action is legitimate under a new
constitutional regime that has replaced the old, original one. If you say the country has no
constitution and is therefore lawless, you may be attacked for trying to undermine the old
Constitution by those who believe it still exists, and for undermining the new Constitution by those
who believe a new fundamental law has replaced the original one. Either way you might be
considered an "outlaw." This can be a political liability.

For practical reasons it seems to me better, and even necessary philosophically, to regard the
existing political and constitutional order as legitimate. However, this way of ‘regarding’ the existing
order is not categorical, absolute, and final–and can never be, given the nature of politics. It does
not require or signify affirmative approval of every element or feature of the existing governmental
system, or passive obedience to everything a government might do. This might be hard to explain,
but it’s necessary to do so.

In the American context, the question of whether particular institutions, laws, and acts of
government are legitimate is to ask whether they are based on and conform to ends, principles,
standards, forms and procedures in the Constitution. This question must always arise; it is never
settled once and for all, notwithstanding the hope and intent of the makers of a constitution that it
will be, and much as it may appear so in retrospect. For those who "take the Constitution
seriously," in contrast to those for whom it is a pretext for partisan and ideological action,
enforcement and maintenance of the Constitution is always a foremost and present concern. It
requires judgment, discernment, and practical reason, guided by knowledge and understanding of
what the Constitution is and conviction about what it is for.

The Clinton impeachment trial shows that it is easy to talk about the Constitution, and that such talk
is cheap. A less invidious observation would be that it’s often hard to know what people are
referring to when they talk about the Constitution, in part because of ambiguity in the meaning of the
concept.

In political conflicts that implicate the Constitution, reference is ordinarily made to the text of the
Constitution as a form of written fundamental law. This gives rise to argument, disputation, and
extended controversy, which though necessarily simplified for purposes of public debate tends
toward technical legal specialization. This area of specialization is called constitutional law.
Constitutional debates like the one we’ve just been through are carried on as though they have
substantive, real meaning, and are not merely a pretext for promoting partisan and ideological
causes.

In constitutional controversies there is a further understanding that the written Constitution, when
taken seriously on its own terms and not pretextually, is nevertheless not the only thing at stake, and
maybe not the main thing. The Constitution as a form of written fundamental law is understood to
be an expression of the traditions, principles, moral standards, practices and conventions–in a
word the inherited social knowledge–that constitute a people. In Roots of American Order,
Russell Kirk said the written Constitution was an expression of the "underlying unwritten
Constitution," that is, the laws, customs, habits and popular beliefs that existed before the framing of
the 1787 Constitution. James Ceaser, noting that the written political Constitution was adhered to in
the Clinton impeachment, nevertheless says the "moral constitution"–the "unwritten standards of
right and wrong carried in the hearts and minds of the American people"–is the more important
concern. Liberals are perhaps better known for appealing to an unwritten "living Constitution",
referring to the social and cultural norms and conventions that constitute the American people.

If the "underlying real constitution" of society is what is ultimately at stake, it is nevertheless difficult
to organize and conduct this type of constitutional debate–and perhaps dangerous to do so when
disagreement concerns fundamental moral principles. In a practical sense,therefore, debate over
underlying principles is not what "constitutional controversy" means in American politics. A
convention exists by which conflict over the moral-social constitution is transposed into controversy
over the principles, forms, and procedures of the Constitution as written fundamental law. Peaceful
contests in forums of constitutional law and politics serve as a surrogate for deeper and more
inclusive cultural, social and moral conflict.

There are winners and losers in the less inclusive, more superficial conflicts that take place in
constitutional politics and law, and the outcome of these contests may resolve, in whole or in part,
what are perceived to be the moral and cultural issues ultimately at stake. It is impossible to know,
however, what the long-range moral and cultural consequences of narrowly-defined, short-range
constitutional controversies will be, especially when, as in the Clinton impeachment trial, both sides
claim to be upholding the rule of law and defending the liberties of the people. It makes more sense,
in my view, to offer less comprehensive and cosmic assessments of the outcome of constitutional
controversies. I refer to institutional-structure and policy outcomes at a middle level between
technical constitutional law on the one hand and ultimate social and moral norms on the other hand.

For example, the result of the Clinton impeachment trial might be seen as a major victory for
partisans of the administrative welfare state (including many Republicans as well as Democrats),
who were thrown on the defensive by the Republicans’ winning control of Congress in 1994. These
partisans, acting in the name of bipartisanship, aspire to a vision of social justice imposed by a
centralized command system which undermines individual liberty and social freedom.

This interpretation of the event does not go deeply into questions of moral philosophy underlying
cultural conflicts. Yet the Clinton impeachment was not widely perceived and discussed in these
terms. The House Republicans claimed to stand for the rule of law, while Democrats defended
privacy in presidential sex as a bulwark of "the liberties of the people." The constitutional arguments
presented to the House Judiciary Committee by constitutional law experts were considered a
toss-up (i.e. they were dismissed as indeterminate). The only strong impression one received was
that the Constitution required bipartisanship, and that the burden and responsibility of this
requirement fell mainly on the Republicans. The Senate verdict was implicitly taken to mean that the
winners’ argument was better and more faithful to the meaning of the Constitution than the losers’.
Republicans fear that the President would "gloat" over his victory, joined with ludicrous
admonishing that he should not, conceded the point.

But is it true that the winning side had the superior and right constitutional argument? This is where
enforcement, maintenance, and survival of the Constitution come into the picture. It requires us to
ask what winning or losing a constitutional controversy means.

Abstractly considered, the losers, having had their turn at bat, might accept the outcome as
legitimate and consider it reassuring evidence that "the Constitution works." The losers might also
question the outcome as a correct or true statement of the real meaning of the Constitution as a
written fundamental law, and deny that it has any bearing on underlying questions of moral and
cultural value that might seem implicated. If, however, further constitutional controversies occur that
are decided adversely to the same losers, they would seem to be in the position of having to do
something about it, for the sake of defending the Constitution as a written fundamental law. If they
fail to act, their reason for not acting may be that the Constitution has failed and no longer exists.
Yet their inaction will be viewed as acceptance of the constitutional validity of the government
measures in question, considered as a construction of the Constitution. The winners in a
constitutional controversy will never say the Constitution has ceased to exist, either in the restrictive
sense of the text as written fundamental law or in the inclusive sense of the moral and cultural values
of the people. If the Constitution is violated, it is the losers in constitutional conflicts who bear
responsibility for doing something about it–if, that is, they really believe it has been violated.

Although the point is taken for granted, enforcement and survival of the Constitution is the most
important issue in constitutional history. This is because of the nature of the Constitution as a form
of written fundamental law that limits government for the sake of individual and local liberty. If the
purpose of the Constitution were to establish power for the sake of social justice, as a good
superior to individual liberty and social freedom, the question of constitutional enforcement would
be trivial: government would always claim the power necessary to make society just. The concept
of constitutional enforcement has practical meaning only where there is a purpose of limiting
government for the sake of liberty. (The definition of freedom, which requires reference to
coercion, is controversial, but the definition of justice is more so.)

Standard historical narratives treat the problem of constitutional enforcement and survival as a
success story. This is because the logic of constitutional reasoning, argument, and justification
employed by the winners in constitutional controversies has been to claim continuity with the
original meaning of the Constitution as written fundamental law. This has been true even when–or
especially when–significant changes in the nature and scope of government and in liberty and
property rights were made.

Consider the four controversies that are recognized as having produced basic constitutional change:
the American Revolution and Declaration of Independence; framing and ratification of the U.S.
Constitution 1787-89; the Civil War and Reconstruction 1860-1877; the New Deal 1933-45. In
each controversy the losers protested that a revolution against the Constitution as written
fundamental law had taken place, and against the underlying moral and social order that it stood
for. The winners denied acting against the Constitution, or said that if a revolution occurred it was
constitutionally legitimate.

This type of argument may be losing its appeal in contemporary constitutional theory. The reason
has to do with the problem of defending the New Deal against forces of historical change. The
argument of constitutional continuity was used in the 1930s to justify the New Deal, at a time when
there was widespread agreement that the country faced a genuine constitutional crisis. Fundamental
changes in the nature and scope of government were effected through judicial decisions that could
not be approved through the formal Article V constitutional amendment procedure. For many years
this "constitutional revolution" was accepted as legitimate. In the 1970s, however, conservative
scholars and lawyers argued that the New Deal was unconstitutional, and conservative politicians
proposed measures to restore limited government. Liberal theorists then decided a new approach
to constitutional change was needed.

The theory of liberal constitutionalism coming into vogue today rejects consitutional continuity for
revolutionary discontinuity. It argues that the Constitution of limited government and liberty and
property rights was overthrown in the 1930s. Through a revolutionary exercise of popular
sovereignty, a new Constitution was ratified establishing activist government, statist liberty, and
social justice and security. This theory holds that as the framers themselves revolutionized the
Confederation constitution in 1787, so later generations are authorized to revolutionize the
fundamental law as they understand it. Far from a need to survive, there is need for the Constitution
not to survive, that the nation might progress and live. To conservatives who appeal to the original
Constitution, liberal theorists say: "Get over it!" In slightly different language, Democrat politicians
say the same thing. Whatever President Clinton did, it was not really impeachable, and it’s time to
put it behind us and move on. With remarkable candor, Democrats disregard or violate the
Constitution and the laws, daring Republicans in Congress to do something about it (e.g.the
continuance in office of acting Assistant Attorney General for Civil Rights Bill Lann Lee, Chinese
campaign funding and espionage, the war against Serbia).

Whether the Constitution survives depends on whether it is enforced. Although it’s good to have
practice and precedent on your side, constitutional enforcement is not mainly a matter of history
and tradition. Nor does constitutional survival depend in the final analysis on rhetorical appeals to
the rule of law. In practical terms constitutional enforcement depends on the attitudes and actions of
citizens and elites in support of constraints on government.

Enforcement of the Constitution is not a problem under conditions of social, moral, and political
consensus. Government has unquestioned legitimacy, people obey it, and the rule of law exists
without punishments and rewards. This state of affairs is often attributed to veneration of the
Constitution or internalization of constitutional values. At the other extreme is a repressive regime in
which government coerces its subjects into obedience to the laws. Here the idea of constitutional
enforcement is otiose and trivial. There is a rule of law, but it refers to government acting with
unlimited discretion.

Between these two extremes is a broad middle ground where the rule of law and constitutional
enforcement are based on the theory and practice of consent. This is considered the distinctive
feature of liberal political theory. I place the American political and constitutional order in this
theoretical and historical context. The rule of law refers to formal agreement between citizens and
government, in the form of a written constitution that consists of rules for government. The
constitution is conceived as a fundamental law that constrains and limits government, preventing it
from acting with complete discretion in relation to citizens’ liberty and property.

In this kind of constitutional order citizens’ consent is the source of government’s legitimacy. The
fact that consent is given by citizens–or the theoretical assumption that consent is given by
citizens–in turn justifies the government in imposing sanctions on citizens, in situations where
sanctions are deemed necessary to compel citizens’ obedience to the government and the laws, or
to the rule of law. For constitutional limits to be maintained, however, citizens’ consent has to
be–and has to be perceived by the government to be–something that can be withdrawn. For the
principle of consent to have practical value as a limitation on government and a source of
government’s legitimacy, it has to be practiced. Consent cannot be automatically forthcoming and
absolute.

Enforcing limits on government requires agreement among citizens as to what government actions
are legitimate. It also requires a coordination effort among citizens aimed at making government
recognize and respect the limits imposed on it by the constitution. It is difficult, however, to secure
agreement and cooperation among citizens for the purpose of enforcing the constitution. Citizens’
social circumstances and opinions on the scope of government activity differ. Government can
therefore often violate constitutional limits with impunity, while retaining the support of enough
citizens to stay in power. It can do the same thing systematically by establishing policies that favor a
particular group or groups of citizens, forming a permanent coalition with them.

Elites play an important role in the problem of constitutional enforcement. Distinct from the mass of
citizens, elites have interests and views that lead them to support or oppose limits on government.
From their distinct perspective, elites can assist citizens in the coordination effort needed to defend
limits on government, or they can oppose this effort. According to political scientist Barry
Weingast, limits on government can be seen as self-enforcing in the sense that government
perceives that it is in its interest to abide by constitutional limits. But this perception is not a natural
instinct or an internalized value inherent in government. It must be impressed on government.
Weingast writes: ". . . limits become self-enforcing when citizens hold these limits in high enough
esteem that they are willing to defend them by withdrawing support from the sovereign when he
attempts to violate these limits. . . . To survive, a constitution must have more than philosophical or
logical appeal; citizens must be willing to defend it." [APSR, vol.91, p.251]

In conclusion, it seems obvious that the survival of the Constitution is a substantive question of
political thought and action, rather than a technical question of constitutional interpetation by legal
experts. What counts ultimately is the existence of limited government, individual liberty and
property rights, and freedom of association in civil society. No law of history brought constitutions
of liberty into existence, and none will ensure their maintenance or restoration in the future. To keep
or restore a constitution of liberty requires a long-range moral education and renewal project,
directed to defense of the underlying "moral constitution." But this project cannot be divorced from
the quotidian work of enforcing limitations on government in the forum of constitutional politics.
Deciding specifically where and how to carry out the work of constitutional enforcement is a
strategic question that requires sound political judgment. And it is literally a thankless task, in the
sense that the principal motive of those who want limited government is to keep government out of
the hands of political hedonists and entrepreneurs who desire to maximize power for the sake of
government.

Constitutional law since the New Deal has generated a continuous stream of legal doctrines to
rationalize and justify what Anthony de Jasay terms "the breathtaking transformation" in the meaning
of the words ‘liberty’ and ‘liberal’.[de Jasay, p.141] Most recently the ideology of statism is
expressed in appeals to "public reason," under which liberty is defined as dependency on
government for individuals’ equal dignity and respect and for social welfare, justice and security.
This definition is assumed to be agreed upon by all reasonable people, and is considered politically
nondebatable. These and other "absurdities" of constitutional law have produced widespread
conservative disgust with judicial supremacy, and an understandable desire to abolish or somehow
transcend twentieth-century liberal jurisprudence.

This is a worthy and challenging task for constitutional law experts, but it is first of all a practical
political task. As Donald Devine observed in this forum in 1995, under existing
political-constitutional rules it cannot effectively proceed until the executive branch is taken back
from the party of political hedonists that presently controls it. Reverence for the Constitution is a
fine thing, but in contemporary culture it can be debased and put to perverse uses. For the time
being, if not for the foreseeable future, concern for constitutional liberty and limited government
must be primarily a matter of republican politics. By this I mean consent-based–and where
necessary consent-withholding–political action aimed at enforcing limits on government for the
sake of liberty in civil society.

Making a limited constitution establishes government authority. Paradoxically, it requires the
exercise of sovereign power for the sake of limiting government power. Can this really be done?
Has it been done in the past? Does not the idea go against the nature of political power and
sovereignty? de Jasay, discussing how fixed constitutions might guarantee liberty and property and
provide a balance between the state and private force, is pessimistic. He says competition between
the state with its monopoly of force, and subjects of the state–whose one strong recourse,
rebellion, is risky, costly, and hard to organize–is "prima facie so grotesquely unequal, that if it
stops anywhere short of enslaving its subjects, cogent reasons are needed to explain why." He
adds: "It is hard to formulate anything more crucial to political theory than this question, which has
been implicitly answered each time historians have given a satisfying account of the fall of
despotism, of stalemate and accord between a king and his barons, or of how a given state has
ruled by custom and law, which constrained its choices, rather than by its own discretionary reason
which did not" [The State, p.206]

This does not mean that discretionary reason can never constrain government action, only that it
usually does not. Limitations on government historically have come from sources outside of
government and taken a variety of forms. No constitutional text can enumerate and codify these
forms. Sometimes it is necessary to go against the rule of bad law in order to save the rule of good
law. The most one can say is that constitutionalist conviction for the sake of liberty, transmitted and
renewed by formal and informal means as practical reason and an inherited form of social
knowledge, can provide the ground of political action to maintain or restore limited government in
the twenty-first century.

What can be said, in conclusion, about the relevance of the written Constitution to the
liberty-and-limited-government renewal project that is our ultimate concern? If the text-Constitution
is continuously violated or disregarded it will become more obviously meaningless than a
rhetorically pretextual document, and will be what is referred to as a "façade" constitution. At what
point this occurs is a matter of dispute. In times like the present it is easy to be pessimistic about the
use to which arguments from the written constitution are put. Historical reflection, however, might
suggest a bit less pessimism about the benefits to be gained from constitutional conflicts.

Many observers believe President Clinton has exceeded the limits of his authority as chief
executive, for example, by issuing executive orders that require spending federal funds not
specifically appropriated for the executive orders. One could say that this kind of interbranch
skirmishing and raiding has been going on since the beginning of the government, in accordance
with the letter and the spirit of the separation of powers principle. It has rarely produced a
constitutional crisis and has not killed the Constitution, although it might if it runs too long in one
direction. In recent years there has been more sustained criticism of activist judges, abetted and
inspired by academic legal theorists, who have evolved a system of government by the judiciary
that it is feared will kill the Constitution if not brought under restraint. This system depends on the
text of the fundamental law as an occasion and pretext for constitutional interpretation that deflects
attention from the substantive legislative character of judicial rule. Yet this judicial evolution has a
long history and can similarly be seen as a legitimate strand of the constitutional tradition. (None
other than Judge Robert Bork says that rule by judicial oligarchy is "the inevitable result of our
written Constitution and the power of judicial review.")

These institutional conflicts, usurpations and stalemates would take place without a constitutional
text, but the fact that the fundamental law is written has great practical importance. It provides the
basis for making potentially powerful claims and arguments by which transgressive government
actions can be stopped, and the Constitution taken back and applied as authentic fundamental law.
Arguments to this effect will not be accepted on authority, however, no matter how many times the
rule of law is invoked. The argument for liberty and limited government, derived from and justified
in relation to the written Constitution, must be persuasive to citizens and elites at some level other
than that of technical legal rationality and coherence. This is where the culture comes in.

The type of argument that is persuasive in constitutional controversy depends to a significant extent
on the culture. If there are relatively few constitutional law experts, everyone is an expert on the
culture. Yet citizens and elites really know very little about culture in the sense required to
understand the problem of persuasion as an essential element in constitutional government. It does
seem to me, however, that an unhealthy tendency exists in law, government, politics and related
academic disciplines to deny that the written Constitution, in principle and in essence, has a fixed,
defined, and ascertainable meaning. This tendency, aggressively promoted by some and reluctantly
conceded by others, can only have the effect of reducing the Constitution to the culture–and to the
lowest common denominators in the culture. This is not, I reiterate, the work of the masses or of
mass journalism. It is an elite project, pursued in books like Michael Kammen’s A Machine That
Would Go Of Itself, which provide a patina of intellectual legitimacy for the task of deconstructing
and democratizing the Constitution as fundamental law. Whether the cultural context of
constitutional politics can be made more congenial to the cause of liberty and limited government
remains to be seen.