Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Corey Brettschneider corey_brettschneider at brown.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Jonathan Hafetz jonathan.hafetz at shu.edu
Jeremy Kessler jkessler at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at yu.edu
Rick Pildes rick.pildes at nyu.edu
David Pozen dpozen at law.columbia.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
David Super david.super at law.georgetown.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Nelson Tebbe nelson.tebbe at brooklaw.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
At the 2016 Democratic National Convention in Philadelphia Khizr Kahn produced perhaps the most memorable and significant moment of the entire four-day affair. During his speech, Kahn dramatically held up a paperback edition of the US Constitution, asking then-presidential candidate Donald Trump if he had ever read the document. The crowd exploded, as did subsequent sales of paperback US Constitutions after this incident. During the remainder of the campaign, protesters at various events often flaunted these copies, taunting Trump and his supporters with the venerated document. These displays fit a particular narrative at the time: that Trump’s naivete about politics and the Constitution excluded him from the presidency, and that his proposed policies did not fit within the established constitutional tradition. But they also encapsulated a wider narrative about the Constitution: the idea that the solution to American problems could simply be found inside the document, if only people were willing to read and abide by it. For Democrats, this was indeed a comforting thought. Thus, when the same document that Democrats so expressly praised ended up delivering Trump the presidency through an archaic and deeply questionable constitutional feature (the Electoral College), the irony could not have been thicker.
But the 2016 episode only reinforced a long-held American tradition that occurs on both sides of the political spectrum: constitutional idolatry. Before Kahn, the most prominent manifestation of idolatry was likely the Tea Party movement, who held collective readings of the Constitution and urged supporters to carry around pocket versions of the document with them at all times. And yet, for all the bombast the movement produced about President Obama’s ‘unconstitutional’ agenda, he decisively won a second term, and remains a relatively popular public figure even today. Thus, major questions about the significance and effects of constitutional idolatry remain; and this is true not only in the American context, but around the globe.
In an attempt to systematise further study of the phenomenon, below I have articulated four particular types of idolatry, which align with my recent work on the topic.
1. Constitution as Scripture
In some jurisdictions written constitutions are not just forms of higher law but sacred texts that contain religious or quasi-religious status. No doubt this is how the American Constitution of 1789 has been viewed since its adoption: as a form of ‘civil religion’. This is probably the most widely recognised form of idolatry, considering that many writers have touched on it in the legal realm. Sandy Levinson’s classic work, Constitutional Faith, does so with immense clarity, laying much of the groundwork for future studies on the topic. Other writers, such as Jack Balkin, Michael Klarman and Sotirios Barber have furthered the study of idolatry from a critical perspective, raising serious questions about how and why these fundamental texts continue to be idolised.
The major question in relation to this form of idolatry is whether this peculiar national faith has been a benefit for the health and stability of the United States, or if it has had a detrimental effect on the nation and at times prevented much-needed constitutional change. I generally side with the latter view. After all, as Barber eloquently reminds us, ‘Venerating something blinds us to its defects, the opportunities to correct them, and the need to foster the skills, attitudes, and institutions for correcting them’ (p 12).
2. Constitution as Heavyweight Truncheon
This ubiquitous form of idolatry may be the most common one applied today, occurring when someone takes a highly contested issue and attempts to shut down any further argument or discussion by using the written constitution as heavyweight truncheon. Frequently employed by classifying arguments as ‘constitutional’ or ‘unconstitutional’, in reality its use masks preferences for likes and dislikes and often attempts to prevent certain actors from further interpreting the constitution. It advocates that only one constitutional ‘view’ that may be taken, or that a particular person or group of persons are the ultimate constitutional bearers, while those in opposition are portrayed as acting outside of it.
This form can also be used as a prominent barrier to constitutional change, as advocates may argue that existing provisions make the constitution ‘entrenched’ rather than subject to amendment, or that particular provisions must be interpreted in a particular manner. Just as citizens and political parties may use the constitution as truncheon, so too may courts. Judges may use this form of idolatry to ensure that judiciaries—or apex courts—possess the final say on constitutional issues, thus preventing other branches or constitutional actors from interpreting the constitution differently. Regardless of who employs this form of idolatry, restricting potential options going forward or attempting to shut down any prospect for constitutional change certainly does not help solve increasingly complicated societal issues. As Seidman articulates, it is ‘deeply authoritarian to try to end an argument by insisting on the sanctity of a particular text’ (p 28).
3. Constitution as Saviour
Nothing is more comforting than thinking that, whatever happens (i.e., what leaders come to power or what crises develop), the Constitution will remain intact. After all, these devices contain the highest status and the most potent weapons that states can employ (e.g., impeachment or dissolution). Indeed, constitutions have commonly been referred to as guardrails, and one overt aim is to entrench fundamental rules and principles against capricious behaviour from leaders or governments.
But in reality the upholding of constitutions has little to do with written texts; it is almost entirely a human endeavour. And no particular person, branch, or group of individuals will be able to do this alone. That is why this form of idolatry may be the most sinister: it makes it seem as if the people themselves do not have to do much of anything, and the constitution alone will save them (or, perhaps a group of individuals that have been deemed the ‘constitutional guardians’ will do so). But nothing could be further from the truth. Under this form of idolatry these parchment barriers can easily become false gods, or what Balkin defines as ‘faith in what one ought not to have faith in’ (p 101). Upholding constitutions involves a wide variety of human actors that seek to maintain legal, political and cultural norms. Collectively, citizens must find better ways of protecting constitutional norms, as written texts themselves will not save us.
4. Constitution as Preeminent Societal Rallying Point
A wide range of individuals and organisations have relied on written constitutions as preeminent societal rallying point. At a macro-level, many states now have anniversaries to celebrate their written constitutional settlements, where a calendar day is marked out for what usually amounts to festive celebrations. But other examples of this form can arise. In India, the Constitution has recently been used as a protest document: collective readings of the preamble have been held to raise awareness of what many see as violations of basic constitutional principles. The events in India mimic what happened in the US after Khizr Kahn’s speech at the Democratic National Convention in 2016, which was touched on above. And yet, constitutional anniversaries often amount to empty, uncritical celebrations of the status quo, and for political parties and other groups that have used the constitution as rallying point, this has not directly translated into election victories or changes in the law.
But this form of idolatry often serves a dualist role, emphasising that societies can rally round the Constitution on certain occasions, but also that this wider societal connection to the Constitution contains deeply personal roots. In a seminal work on the American Constitution, Ackerman claims that the continual re-telling of the constitutional narrative ‘plays a critical role in the ongoing construction of national identity’, and that, ‘[t]o discover the Constitution is to discover and important part of oneself’ (pp 36-7). A recent leading text on constitutional preambles notes that, ‘They serve as a nexus between the abstract systemic world and the individual’s psyche’ (p 151). Good reasons exist to be highly sceptical of these claims, not least because most citizens tend to know little about the actual constitutional text or major court judgments in relation to it; and yet they are still able to possess a deep and intimate connection to the country they live in, and also fully participate in the democratic project.
Strengthening studies on idolatry
Of course, other forms of constitutional idolatry exist. Above I have merely attempted to articulate a few recognisable practices. But if we are to move further beyond these examples, then we must also acknowledge that widespread constitutional idolatry exists and further examine its characteristics and effects. Doing so may very well aid the constitutional project going forward, in America and elsewhere. But perhaps more importantly, knowledge of these forms could enhance the critical discussion and debate needed when constitutional battles erupt, as they seem to be doing so frequently nowadays. Brian Christopher Jones is Lecturer in Law at the University of Sheffield. You can reach him by e-mail at brian.c.jones at sheffield.ac.uk