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.