Basic Law, Higher Law, Our Law-- An Essay on Constitutional Redemption

JB

I'm spending this weekend at the American Constitution Society Conference in Washington, D.C. To mark the occasion, here's a little essay on constitutional interpretation, taken from my latest piece on original meaning and constitutional redemption. It's about the key purposes that constitutions like America's serve, and the idea of a redemptive constitutionalism.

Basic Law, Higher Law, Our Law

A successful constitution like America’s must serve many different and overlapping functions. For convenience, I divide them into three categories: A constitution like America’s must simultaneously work as basic law, as higher law, and as our law.

By basic law I mean that the Constitution sets up a basic framework of government that promotes political stability and allocates rights, duties, powers and responsibilities. A constitution also serves as basic law in the sense that it is foundational law (or supreme law) that trumps other law to the contrary. To operate effectively as basic law, a constitution does not have to be just. But it must preserve political stability and channel political and legal decisionmaking so that the governmental system can sustain itself over time.

The American Constitution is far more than basic law in this sense. Americans also view their Constitution as a source of important values, including justice, equality, democracy, and human rights. They view the Constitution’s guarantees as objects of aspiration; the Constitution either offers or refers to a standard that stands above ordinary law, criticizes it, restrains it, and holds it to account. Fidelity to the Constitution requires that we aspire to something better and more just than the political, social and legal arrangements we currently maintain. Hence the Constitution trumps ordinary law not simply because it is legally or procedurally prior to it, but because it represents important values that should trump ordinary law, supervise quotidian acts of governmental power, and hold both law and power to account. Thus, we say that the Constitution is not merely basic law, it is also higher law; that is, it is a source of inspiration and aspiration, a repository of values and principles. People sometimes use the terms "basic law" and "higher law" interchangeably; for example, the German Basic Law strongly protects human dignity, and Bruce Ackerman has famously argued that constitutional amendment outside of Article V is an example of "higher lawmaking." I want to separate the two expressions because they point at different constitutional functions. The German Basic Law is both basic law and higher law in my sense, and constitutional amendments– whether inside or outside of Article V-- might involve the creation of both new basic law and new higher law.

Finally, it is not enough that the Constitution serve as basic law– a framework for governance, or as higher law– a source of aspirational standards and values. It must also be our law. The people who live under it– the American people– must understand the Constitution as their law– not the law of Turkey, or the law of France or the law of South Africa. The South African Constitution may be widely admired as an example of contemporary constitution-making; but it is not our law. The Constitution works as our law when we identify with it and are attached to it, whether or not we consent to it in any official or legal sense. The Constitution works as our law when we view it as our achievement and the product of our efforts as a people, which simultaneously involves a collective identification with those who came before us and those who will come after us.

Viewing the Constitution as "our law" has a curious consequence: it helps us imagine ourselves as part of a collective subject persisting over time, the collective subject– We the People– whose law the Constitution is and to whom the Constitution belongs. Many features of a political culture can cause people to think of themselves as a collective subject that persists over time; but, at least in the United States, our Constitution also performs this function. Thinking of the Constitution as our law– the law of We the American people-- involves a narrative conception that appeals to collective memory-- to a stock of stories, symbols and understandings that bind people together and make them a people. Put another way, viewing the Constitution as "our constitution" is a constitutional story– a constitutive narrative through which people imagine themselves as a people, with shared memories, goals, aspirations, values, duties, and ambitions.

Viewing the Constitution as the Constitution of We the People is a constitution of the People. It accepts and endorses a constitutional story about who Americans are and what America is– we are the people who broke away from Great Britain and who created and ratified the Constitution to secure our liberty, and so too will be our successors. Viewing the Constitution as our Constitution constructs a collective subject with a collective destiny that engages in collective activities. It binds together people living in different times and different places as a single people. It allows us to see the hopes, desires, actions, ambitions, and achievements of people who lived long ago as our hopes, desires, actions, ambitions and achievements.

The success of this constitutional story is central to the present generation’s attachment to the Constitution as their Constitution– even though they never consented to it or voted for it– and therefore to the Constitution’s sociological legitimacy. Attachment is a different attitude than consent. We consent to something we have a choice in; but we can become attached to something that we live with or live in over time.

The method of text and principle, I believe, serves the multiple functions of a constitution – as basic law, higher law, and our law– far better than other forms of originalism. An originalism that strongly distrusts delegation to future generations and demands that open-ended provisions must be closely connected to original expected application is defective in all three respects. That kind of originalism makes the most sense if we think of the Constitution only as basic law. It tries to turn open-ended principles and standards into something more concrete and rule-like, something whose effects will hopefully be more predictable and (in many cases) more constraining. But that is not the only way that constitutions could serve as basic law. Constitutions can also channel and give incentives for political stability and adaptation rather than merely block and constrain decisionmaking. In fact, the former is a far better way to understand the basic law function of a constitution.

Even if tying constitutional principles closely to original expected application works tolerably well as basic law, it fails utterly as higher law and as "our law." The idea of higher law views the Constitution as a repository of ideals morally superior to ordinary law and toward which ordinary law should aspire. It makes the Constitution an object of political and moral aspiration and offers a potential for redemption. Thus the higher law function of constitutionalism has a temporal dimension: the higher law is a set of principles that critiques present political arrangements and that we must try to realize over time.

Justice Scalia has argued, by contrast, that a constitution’s "whole purpose is to prevent change– to embed certain rights in such a manner that future generations cannot readily take them away," because societies may not progress, or mature, but rather "rot." His vision is not aspirational. It is a narrative of decline from a wiser, more just time. Things always threaten to get worse than they were at the founding, so we need guarantees to keep people as just as they were in 1787. If he is right, then it would be puzzling why so many constitutions– not only the U.S. Constitution, but also most post-World War II constitutions-- would contain abstract and relatively open-ended rights guarantees.

The very notion of constitutional aspiration presumes the opposite of Scalia’s narrative of decline. It presupposes that each generation should strive to do better than the previous ones did. The idea of redemption assumes that the political arrangements of the past have features that must be redeemed.

Aspirationalism is Janus-faced. It recognizes that a constitution always exists in a fallen condition, that it inevitably contains compromises with evil and injustice. At the same time, it maintains that the constitution and the constitutional tradition contain elements and resources that can assist in their eventual redemption. Implicit in this notion of aspiration is the willingness to gamble on the future. It requires faith in future generations entrusted with working out and developing the Constitution’s guarantees over time. Constitutional redemption requires faith in the constitutional tradition’s ability to grow and improve, without any guarantees of success. Far from a fear that future guarantees will rot, an aspirational Constitution requires a steadfast belief that the evils of the present can and will be recognized and remedied, if not in our day then in the days to come.

Finally, a constitutional theory that distrusts delegation to the future fails as "our law." The Constitution is our law when we feel attachment to it and when we feel that we have a stake in it even if we did not consent to it officially. The Constitution is our law when we feel that it reflect our values sufficiently well that we can identify with it as ours; or, because we feel have a say in what the Constitution means, we have faith that it could and will come to reflect our values better over time. Thus, the idea of constitution as our law also has a temporal dimension. It requires an identification between ourselves, those who lived in the past and those who will live in the future. And it requires faith that the Constitution is either good enough as it is to deserve our respect and attachment or that it eventually will be redeemed.

For the Constitution to be "our law" it must do two things simultaneously. First, it must connect past generations to present ones through a process of narrative identification. It must allow us to see ourselves as part of a larger political project that stretches back to the present and forward to the future. The Constitution succeeds as our law when we can identify ourselves with those who framed and adopted it– we when are able to see ourselves as part of them and them as part of us. Second, the Constitution must allow us to identify our present principles and commitments with the principles of those who lived before us. Constitutional traditions achieve this by encouraging people in the present to call upon the past– and the struggles and commitments of the past– as their past and as their struggles and commitments. The understanding of the past frames our present situation and explains how we should go forward into the future. This identification between past and present allows us to say that we are continuing the work of those who came before us when we apply the Constitution’s text and principles in light of our current circumstances.

Doing this necessarily requires delegation to the future, because each generation must see itself as given the task of applying constitutional principles in its own time. We understand our present situation and the possibilities and needs of the future through the trajectory of our interpretation of the meaning of the past– both the principles we committed ourselves to achieving and the evils we promised ourselves we would not permit again. When we in the present perform this task, we carry forward the imagined political project that metaphorically connects us to those who came before us. Their principles are our principles, and, the Constitution they left us is our Constitution, reflecting not only their past commitments but also our present ones.

A theory of interpretation that refuses to allow this delegation does not allow the Constitution to be ours because it does not allow us to see our present day values in the Constitution as the application or fulfillment of past principles and commitments. If people feel that the Constitution’s principles are not their principles, but simply imposed on them as a straitjacket from an alien past, the Constitution is not theirs, and it offers them little hope that it will come to be theirs in the future.
Posted 11:19 AM by JB [link]