Wednesday, January 12, 2011

Constitutional Atheism

Gerard N. Magliocca

Two of my co-bloggers have written about the importance of faith in constitutional law. Sandy's book on "Constitutional Faith" and Jack's work on "Constitutional Redemption" both make the point that citizens must believe that the Constitution can be made better in order to sustain their allegiance to the document. There are similarities between how this works and how religions relate to their founding scripture. Both rest on the fiction, as I pointed out in a post last month, that the Word is infallible and that errors made in its name are the fault of human institutions. In other words, there must always be a platonic Constitution that people can appeal to when they disagree with the Supreme Court interpretations. Thus (as I will explain in some additional posts), much of constitutional practice is driven by the need to preserve that ideal.

There is one problem with this analysis. Suppose you are not religious. In that case, the notion that mystical faith is a necessary component of constitutional legitimacy would be hard to comprehend. What would a constitutional atheist say? I think the best answer was given by Walter Bagehot in his classic discussion of the platonic role that the Crown plays in the British Constitution.

"The ruder sort of men-- that is, men at one stage of rudeness--will sacrifice all they hope for, all they have, themselves, for what is called an idea--for some attraction which seems to transcend reality, which aspires to elevate men by an interest higher, deeper, wider than that of ordinary life. . . . The elements which excite the most easy reverence will the the theatrical elements-- those which appeal to the senses, which claim to be embodiments of the greatest human ideas, which boast in some cases of far more than human origin. That which is mystic in its claims; that which is occult in its mode of action; that which is brilliant to the eye; that which is seen vividly for a moment; and then is seen no more; that which is hidden and unhidden; that which is specious and yet interesting, palpable in its seeming, and professing to be more than palpable in its results; this, howsoever its form may change, or however we may define it or describe it, is the sort of thing--the only sort--which yet comes home to the mass of men."

I leave it to you to decide whether Bagehot's description of constitutional faith as nothing more than a superstition is correct.

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