Monday, December 31, 2012
There is, I think, an interesting parallel in the discontent expressed in Patrick's recent post on the inadequacies of our constitutional form and Louis Michael Seidman's column yesterday. I should say first that Professors Brennan and Seidman know a tremendous amount about constitutional law -- much more than I do, and about many subjects, more than I am likely ever to know. I've learned a lot from their writings over the years and will continue to do so. And, to be sure, they express different positions, coming, as they do, from very different points of departure and having very different ends in mind. Consider this post just a thought about an interesting parallel, seasoned with a sprinkle of skepticism.
It seems to me that there is a fundamental convergence of perspective in the gentlemen's outlooks, and it is this. If we want to understand what is "broken" about our government today -- what has failed, or what is decaying, or even what never had a chance to succeed at all -- our diagnosis must focus on our legal forms. We can explain, at least in large part, how we have gone so badly wrong by looking to the constitutional forms of government and to the authority that we vest in the text of the document -- where we will find, as Seidman has it, "the culprit" of many infirmities in today's body politic. The root cause of our "dysfunctional political system" -- the Constitution -- has thwarted us from being our best selves -- a position with which (I think) Patrick might agree. For example, Seidman writes that the Constitution prevents us from having a unitary "interpretive method," because it can actually accommodate both originalism and living constitutionalism: "Whichever your philosophy, many of the results — by definition — must be wrong." It is the structure and the forms, both men say, which seem to entrench disagreement, perhaps even to valorize it. So we are already predisposed, by the structure itself, not to think clearly, and rightly, about political governance. And until we reject the structure and replace it with a better structure -- one that (for Seidman) reflects the ideal of popular "real freedom" achieved through "mature and tolerant debate" or that (for Brennan) reflects the ideal of real (that is, true) thinking ("intellectus") about the human good -- we will not be the best political community that we can be (as Seidman and Brennan, respectively -- and very differently -- conceive it).
I am skeptical about this view. One reason is that I do not agree with the claim that our contemporary disagreements are traceable to structural legal arrangements. Structures and forms are mechanisms that contain, limit, and focus disagreement. They do not eliminate disagreement. Pick a different structure; you will not have eliminated disagreement. You will only have redirected it into other channels arranged by the structure. I believe that Seidman agrees with this point, but he then says this: abandoning the form, and the authority that we place in it, would make it "apparent that people who disagree with us about the Constitution are not violating a sacred text or our core commitments. Instead, we are all invoking a common vocabulary to express aspirations that, at the broadest level, everyone can embrace." I am unsure why abandoning the constitutional form would make this likely to occur. If it would, the aspirations would have to be taken at the very broadest and least helpful level.
That gets at another, perhaps larger, reason that I do not find convincing the view that the legal or political structure is the "culprit." In republics and democracies, structures of governance are chosen by people. People choose structures and the structures that they choose reflect their cultural commitments. Culture precedes positive law, not the other way round. And a culture (like ours) within which widespread and deep disagreement is the rule may be well-advised to choose a legal and political structure in which disagreement has maximal space to dissipate -- like a gas that, when concentrated, will explode, but can be tolerated as it becomes more and more diffuse.
Forms, in this view, are protective; they are a bargain reflecting respect for differences of opinion, and we are in need of protection against one another's desires, intentions, and wills. Just so, formality (in interpersonal dealings, in personal expression, in dress, and so on) is no mere nicety, but a (small) gesture of respect toward other people. Most people, with good reason, want very much to be protected from what lies beneath the manicured surface of their fellow human beings. Formality betokens respect for other people's sensibilities, accompanied by the hope for reciprocity. None of this means that forms and structures cannot be improved or modified or amended to accommodate either a changed vision of the human good or a changed understanding of contemporary circumstance. Surely they can be; certainly the Constitution can be. But criticizing forms and structures, and wishing for their replacement with others, is largely a distraction from the real action -- action that has comparatively little to do with the Constitution or the forms of constitutional governance.