Mirror of Justice

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Tuesday, January 1, 2013

Is the Constitution the Problem?


First of all, a blessed new year to the Mirror of Justice community—participants and readers all.

I have found Patrick’s and Marc’s commentaries on Professor Louis Michael Seidman’s December 30 essay published in The New York Times fascinating and illuminating commentaries. Professor Seidman is well-known for his work on Constitutional Law and Criminal Law and Procedure and enjoys a favorable reputation amongst many in the legal academy. Moreover, I enjoyed the several conversations I had with him when I was a visiting professor at Georgetown Law during the summer of 1993. However, I respectfully think that he has misidentified the source of the problems which he addresses in his essay.

It is not the Constitution per se that is the problem; rather, it is people who interpret it, mold its meaning, and administer its provisions. I would agree that the Constitution is not without its limitations or ambiguities, but it is still a remarkable document, especially when the often forgotten Preamble is considered, for within this beginning we, regardless of the time in which we live, can see the eternal wisdom that defines the Constitution’s raison d’être. What might that be? Well, the text spells it out with clarity for any age including that of the Framers and that of today and tomorrow—the community of people formulating the objectives of: forming a more perfect union; establishing justice; insuring domestic tranquility; providing for the common defense; promoting the general welfare; and securing the blessings of liberty for the folks of 1787 and for future generations. This sounds like and is a sensible and durable plan for the fundamental positive law of the nation. So, is it really the problem?

Indeed, it is, as I have said, not without its limitations. But even the Framers foresaw its limitations and made prearrangement for its revision when needed by amendment. Its provisions really are not the source of what is archaic, what is idiosyncratic, or what is “downright evil.” It must not be forgotten that the Constitution is, besides a construction of human effort, a tool in the form of a judicial instrument that is to be used as a principal means for attaining what is spelled out in its Preamble. And, there is nothing archaic, idiosyncratic, or “downright evil” there. By itself, the Constitution does nothing until it is used by the citizens and by those chosen, directly or indirectly by the citizens, to implement its provisions. If there are problems with the Constitution, it is not with the text per se but with those who use and apply it.

The objectives of the Constitution specified in the Preamble were not only noble for the time in which the text was written and adopted. They are durable and ought to apply to any time regardless of what the demands of any time may dictate. The difficulty is not with the text that the Framers developed, but rather how the users appropriate the text and then construe or misconstrue it. The real question and, therefore, the real problem is with the person who does this work—be the person citizen, lawyer-advocate, judge, administrator, legislator, or policy-maker. My contention is that there is a problem, so I am in some agreement with Professor Seidman. But our disagreement is with the problem’s source. His position is that it is with the text; mine is that it is not with the text but with the people who have claimed the authority to use and apply it.

Here I need to be more specific about why I make this claim. For the Constitution to do anything, it needs human agents. By itself, it is inert (as you might glean, I am not a big fan of the doctrine of the “living Constitution”). For it to have activity in human existence, it requires human agents. These agents can accomplish much that is good for the human race, but they can also accomplish mischief along the way. The real source of the problem is how are these agents formed and what do they see as their objectives? When we understand the import of this assertion, we can then better understand how the text, i.e., the Constitution of the United States, is employed and what it accomplishes.

I do not like to identify what I consider to be a problem without offering a solution or a means to one, which I hope is shared by people of good will who have a strong sense of the importance of the common good. One place to begin with the formation of the human agents who have claimed responsibility for implementing the Constitution and its various provisions is to test the degree to which they have been exposed to and adopted the cardinal virtues of courage, prudence/wisdom, forbearance/temperance, and justice. These are all important dimensions of human existence that are allied with the objectives of the Preamble. The issue is, I think, the degree to which the “elites”, to borrow from Professor Seidman whose term this is, have been reared in these indispensable human attributes that are essential for the agents who will determine what the Constitution is about and what it is not.

A great deal more needs to be said about my thesis, but since Professor Seidman has welcomed mature and tolerant debate on the matter of the Constitution, I, for one, look forward to this exchange, which I am sure will demonstrate that the Constitution is not the problem.


RJA sj



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