Posted: December 6, 2013
t first glance, On Constitutional Disobedience by Georgetown law professor Louis Michael Seidman is the latest in a series of recent books that criticize the American Constitution severely, calling for its replacement by a more modern magna carta. Seidman's argument was summarized, and received considerable attention, in a New York Times op-ed article with the striking title, "Let's Give Up on the Constitution." But actually, his argument is directed against not just the American Constitution as it now stands or might stand, but allconstitutions. Thus, one section of the book is entitled "What Constitutions Are For, and Why We Do Not Need Them."
One of Seidman's arguments goes like this: suppose a bloody civil war is ended when both sides agree to a truce. The truce is the best agreement either side can get, both sides agree to it, and it results in peace. Are the parties involved obligated to obey the truce? The answer, according to Seidman, is "no."
The parties "agreed" only because this was the sole means available to staunch the flow of blood. Of course, so long as the alternative to abiding by the agreement is continued or renewed civil war, both sides have a prudential reason to follow its terms. But if the balance of power shifts, or if the agreement proves too burdensome, there is no principled reason that a party should subordinate its conception of justice to a truce that was forced upon it.
He allows, of course, that "[i]f the terms of the agreement are just, then they should be obeyed because they are just." But in that case, he claims, we are not really obeying the agreement at all. We are acting consistently with the agreement "because our all-things-considered judgment is that this is the best way to proceed." Obedience has nothing to do with it because "[a]n obligation to obey takes hold only when one has a duty to do something one would otherwise not want to do." If we have a good reason to act consistently with the agreement we don't need an obligation to obey to tell us to do so. And if we don't have such a good reason, then we shouldn't follow the agreement at all.
What are we to make of this argument? First, Seidman is confused about what, exactly, a constitution is. For example, he notes that there is obvious utility in establishing exactly how long a president's term will be. Don't we need a constitutional provision—a provision we will obey obviously—to establish that term? No we don't, writes Seidman, who notes that "[i]n the United Kingdom, there is no written constitutional agreement that requires fresh parliamentary elections every five years, but the length of parliamentary sessions is nonetheless not a subject for debate." Later, he defends constitutional disobedience against the charge that it would endanger civil liberties by pointing to countries such as the United Kingdom and New Zealand, where such freedoms are secure despite lacking written constitutions. Later, Seidman drops the qualifying word "written" and asserts that the U.K. and Australia "until recently lacked constitutional protection for civil liberties."
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These examples are telling only if these countries lack not just written constitutions but constitutional obedience. Clearly, however, they don't. The U.K. may lack a written document, but has a constitution that is unwritten and informal precisely because obedience to it is so taken for granted. The same is true of Australia and New Zealand, which have weak written constitutions bestowed on them by the British parliament, but are obedient to a wider amalgam of laws, treaties, and conventions.
Seidman's assumption that an unwritten constitution is no constitution at all is expressed even more plainly in his critique of what he calls associative theories of obligation. Such theories argue that members of a political community are obliged to obey the law because obeying the law is a necessary part of what it means to be part of a political community. Associative theories have, Seidman admits, "some superficial plausibility" concerning the obligation to obey the law, but none with regard to an obligation to obey a constitution. He writes that "for several millennia, constitutions were the exception rather than the rule. Many political communities have existed and functioned perfectly adequately without constitutional obligation for the simple reason that they have functioned perfectly adequately without constitutions."
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But the political communities of the ancient world did have constitutions. True, for the most part those constitutions were unwritten and informal but they were nevertheless formative. Thus Aristotle could write meaningfully of The Constitution of Athens and develop a library (now lost) documenting the constitutions of scores of Greek city-states even though these polities had no written or formal constitutions. Any political community that has some way, more or less settled, of making collective decisions has a constitution, and any political community that does not have such a constitution is hardly a community at all. "It is impossible," Seidman acknowledges, "to imagine a political community without laws, so it makes some sense to say that obligation to obey those laws is built into the idea of such a community." But if it is impossible to have a political community without a constitution—that is, a settled way of making public decisions—constitutional obedience is a necessary part of belonging to a political community.
A work extolling constitutional disobedience raises an obvious question: it might be convenient to ignore the provisions for, say, the Electoral College, but are the First Amendment and the equal protection clause to be disobeyed too? Not to worry, Seidman tells us. "There is simply no good reason why we cannot continue to abide by constitutional provisions that now seem to us sensible while jettisoning those that do not." So only "sensible" provisions are to be obeyed. Seidman expands on this criterion a bit when he writes we should base decisions on "all-things-considered judgments instead of constitutional commands." So the question might be restated: how does a polity go about reaching an all-things-considered judgment, how is such a judgment to be recognized when it is achieved, and how is this to be done without reference to a constitution, either written or unwritten?
To his credit, Seidman recognizes at this point that he has dug himself a hole. He writes, "Without a constitution, how are ‘we' to express our decision to, say, have or not have a Supreme Court? How would ‘we' decide which institutions were authoritative?" These are excellent questions to which Seidman has no answers. He notes that during the American ratification process the nation transitioned from one written constitution to another and expresses the hope that, "In the same mysterious fashion, contemporary Americans can decide on the shape and power of their institutions."
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Clearly we need a better account of public decision-making than ascribing the whole process to mystery. A situation in which absolutely everything is, as Seidman writes, "up for grabs," will never produce any decisions or any action. Every debate starts where the polity already is, with a set of assumptions and procedures that it temporarily and conditionally chooses to accept or obey. That set of assumptions and procedures is in fact the constitution of a polity, and every polity has such a constitution.
What, one wonders in following Seidman's argument, would a society look like in which its history and traditions are so unclear, so contested, that massive and complete constitutional disobedience obtains? In a highly illuminating passage he invites us to envy "emerging democracies like those in the Arab world."
In countries with no tradition of constitutional protection for civil liberties, constitutional obligation obviously plays no role. Yet, precisely because of this absence of prior obligation, there is vibrant debate and mass mobilization about the nature of and protection for rights. The very contingency of the rights—the very fact that they are not established and are up for grabs—leads ordinary people to value and fight for them... What true civil liberties amount to is the embrace of unpredictable, uncontrollable, and unprogrammed argument, debate, and dissent—the kind of wide-open discussion that accompanied the Arab Spring or our own revolution.
Ah, the lucky citizens of Egypt, Lybia, and other countries experiencing the Arab Spring. There, without the First Amendment or any similar constitutional provision to restrain them, they are free to have "wide open discussion"—with "unpredictable" results!—over such matters as whether Jews are, as the recent former president of Egypt had it, the "descendants of apes and pigs" who must be the targets of holy jihad. Because of the "absence of prior obligation" to any 8th Amendment it is also "up for grabs" whether thieves should have their hands cut off.
The point is that there must be a constitution and consequently there must be constitutional obedience. The only question is the sort of a constitution a particular polity has. If a people are lucky enough to have a constitution that shuts down discussion of obnoxious alternatives they should cling to it, as Orwell said, like a life preserver. Therefore Seidman's preference for "a culture that values argument and disagreement more than obedience" is quite arbitrary. Obviously it is the substance of what one chooses to obey or contest that is decisive.
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In some passages Seidman seems to argue that constitutions are futile endeavors in any case. He writes, "it is quite mysterious why anyone would think that words written on a piece of paper could possibly stand in the way of abusive exercise of government power. As many of the framers themselves recognized, the Constitution provided nothing more substantial than ‘parchment barriers.'" There are two confusions here. First, James Madison's objection to parchment barriers was not meant to apply to constitutional language as a whole. Parchment barriers were the kind of toothless prohibitions against one branch of government encroaching on another that were contained in some state constitutions. The alternative to parchment barriers was the system of separation of powers—still words on a piece of paper but ones that created a governmental process conducive to maintaining a salutary separation. Second, if words on a piece of paper are so ineffectual, what is the point of Seidman's whole book? Words on a piece of paper stand for ideas, ideas upon which one is prepared to act are beliefs, and beliefs direct human behavior.
So, just how do constitutions manage to have any power over us at all? "The test for constitutional obligation arises when one thinks that, all-things-considered, the right thing to do is X, but the constitution tells us to do not-X," Seidman writes. "If we are convinced after taking everything into account that one course of action is right, why should we take another course of action just because of words written down on a piece of paper more than two hundred years ago?"
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But our thinking about politics is shaped by history, context, and culture—by the way our political world is constituted. That constitution includes institutions and practices, certainly, but also ideas, assumptions, arguments, rules, a whole set of mental habits without which political thinking or "taking everything into account" would not be possible. A constitution is, above all, a way of thinking about the political world. For convenience we sometimes sketch out part of those thought patterns in words, making those aspects of the constitution more formal, less malleable than others. We may in time come to question some parts of a constitution, but when we do so it is in terms of other parts of the constitution that we temporarily and provisionally choose to accept. When the constitution tells us to do X and we think about whether to do not-X, our thinking is already shaped by that constitution, broadly understood.
At one point Seidman states that "constitutional disobedience is not only permissible; it is built into the fabric of our country." But here is something else built into the fabric of our country, which might even be said to be its fabric: its constitution, broadly understood. The disobedience Seidman calls for never really tears loose from that fabric. In that sense, On Constitutional Disobedience is less of a break with traditional constitutional criticism than it seems to be. It presumes that disobedience will not affect any of the "sensible" provisions of the Constitution that sensible Americans rightly esteem. The author wants to have it both ways, which is disappointing but all too predictable for a professor lucky enough to live in a republic with a strong, wise, and venerable Constitution.