Monday, September 27, 2010

The Perils of Constitution-Worship

Lexington at The Economist looks at the Tea Partiers and their worship of the Constitution.

[T]here is something infantile in the belief of the constitution-worshippers that the complex political arguments of today can be settled by simple fidelity to a document written in the 18th century. Michael Klarman of the Harvard Law School has a label for this urge to seek revealed truth in the sacred texts. He calls it “constitutional idolatry”.

The constitution is a thing of wonder, all the more miraculous for having been written when the rest of the world’s peoples were still under the boot of kings and emperors (with the magnificent exception of Britain’s constitutional monarchy, of course). But many of the tea-partiers have invented a strangely ahistorical version of it. For example, they say that the framers’ aim was to check the central government and protect the rights of the states. In fact the constitution of 1787 set out to do the opposite: to bolster the centre and weaken the power the states had briefly enjoyed under the new republic’s Articles of Confederation of 1777.

When history is turned into scripture and men into deities, truth is the victim. The framers were giants, visionaries and polymaths. But they were also aristocrats, creatures of their time fearful of what they considered the excessive democracy taking hold in the states in the 1780s. They did not believe that poor men, or any women, let alone slaves, should have the vote. Many of their decisions, such as giving every state two senators regardless of population, were the product not of Olympian sagacity but of grubby power-struggles and compromises—exactly the sort of backroom dealmaking, in fact, in which today’s Congress excels and which is now so much out of favour with the tea-partiers.

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. Mr Klarman argues that the framers would not even recognise America’s modern government, with its mighty administrative branch and imperial executive. As to what they would have made of the modern welfare state, who can tell? To ask that question after the passage of two centuries, says Pietro Nivola of the Brookings Institution, is to pose an impossible thought experiment.

Not unlike the Christian fundamentalists who believe that every word in the Bible is literally true, there is no room for error in the idolatry of the Constitution. But also like those who fail to see the metaphors and obvious flaws in the through-line of Genesis — where did Mrs. Cain come from? — they fail to take into account the fact that, like the Bible we know today, the Constitution was written by a committee that involved deals and bargains, arguments and choices, and that what was designed as a work in progress would be altered and adapted as the years passed and the nation grew. Certainly the rich white guys that wrote it didn’t have the foresight to see two hundred years into the future, and they knew they couldn’t. The Constitution is silent on a number of issues. Presumably it is so because the writers either trusted the people who would follow them to live up to it, or — more realistically — they just couldn’t predict that one day slaves would be free, women could vote, and two people of different races would want to get married. They did, however, leave room to change it.

Lexington also makes an excellent point: the Constitution is not the sole property of one group alone; it belongs to every American, be they liberal or conservative, straight or gay, black, white, or whatever. That’s what the whole “we the people” thing is all about.

HT to CLW.