Yesterday was Constitution Day, on which Americans celebrate the anniversary of the signing of the U.S. Constitution, and institutions of higher learning throughout the land scramble for Constitution-themed programming, lest they jeopardize their federal funding. As for how we celebrate, well, let’s just say it’s a work in progress. There are no fireworks, or bacchanalia of feasting and football, or parades to commemorate veterans or to remember the accomplishments of organized labor. We don’t celebrate our foundational political document in the way that Jews celebrate theirs, with song, drink, and dancing with Torah scrolls. Perhaps the most appropriate celebration, barring adoption of a secular analogue to the Simchat Torah festivities, simply involves reflection on the Constitution. In that spirit, I offer some reflection:
- The Constitution reflected the most sophisticated political philosophy of its era, as well as lessons learned from history, both ancient and very recent. So why is so much of the celebration devoted to a mindless veneration that refuses to acknowledge that we have an advantage over James Madison and company, namely 200+ years of practical experience with, and scholarship about, political institutions?
- Make no mistake about it: when it comes to thinking about the Constitution, the American public is decidedly prone to mindless veneration. Just as Americans proclaim that the U.S. health care system is the best in the world, despite the substantial body of evidence to the contrary, we resist considering the prospect that other institutional arrangements might produce better governance. When our governance does not address the pressing issues of the day, or addresses them in a dysfunctional manner, we tend to attribute blame to individual political actors or parties, or to the political class as a whole. The implicit assumption is that it’s easier to make flawed human beings less flawed, or to improve our ability to identify and empower less flawed human beings, than it is to rethink the environment in which these flawed human beings operate. But the multitude of failed attempts throughout human history to perfect human behavior, coupled with what students of government understand about the significance of institutional design, should lead us to question that assumption.
- Constitution Day’s focus on the text of the document–a variation on the Protestant principle of sola scriptura–underplays the importance of everything else that has come to shape constitutional understandings since 1787. These understandings reflect centuries’ worth of judicial interpretation, historical practices and traditions, and consensually accepted norms. States, for example, are obliged to respect virtually all of the protections enumerated in the Bill of Rights, but not because the Constitution’s text clearly commands that obligation. Rather, the incorporation of the Bill of Rights has resulted from an interpretation of the Fourteenth Amendment’s Due Process Clause that we (OK, Justice Thomas, not you) have accepted for some time. Try to envision states no longer bound to abide by the Bill of Rights, and you’ll see why the gloss placed on the Constitution should not be overlooked in favor of a focus on the original text alone.
- Finally, if you’re not in the mood to celebrate the Constitution, I’d recommend two thought-provoking books by Sanford Levinson: Our Undemocratic Constitution (2006) and Framed (2013).
Now go out and take advantage of those post-Constitution Day sales!