Wednesday, December 22, 2010

The Constitution Can Do No Wrong

Gerard N. Magliocca

Sovereign immunity started with the fiction that "the King can do no wrong." Constitutional law now rests on a fiction that "the Constitution can do no wrong."

In the nineteenth century, Walter Bagehot explained that all constitutions have two components: the "efficient" part that actually governs and the "dignified" part that sustains the government's legitimacy. In England, the main dignified organ was (and to some extent still is) the Crown. In the United States, it is the written constitution that you see in the National Archives.

In practice, this means that constitutional law is not like science. If a scientific theory is debunked, nobody thinks that this undermines the scientific method. People accept that the progress of knowledge is inevitable and that the truth is subject to revision. Constitutional interpretation is different. When a doctrine or a result that is perceived as wrong, lawyers almost always use the fiction that those cases were "always wrong." (Or, put another way, that the Constitution is always right.) Even with respect to slavery, many abolitionists worked hard to argue that the Constitution was not a pro-slavery document, even though it pretty clearly was.

As I will explain in some posts after the holidays, infallibility is the most powerful constraint on modern constitutional theory. With that teaser, I will wish all of you a Happy New Year!

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