One of the most fundamental questions of political theory is deceptively simple: why have a constitution at all? The answer to this question should be easy, given the widespread adoption of written constitutions in recent years, even if their substantive provisions vary widely from country to country.
Regrettably, however, the success of constitutionalism is far from guaranteed if social conditions do not support limited government, which is why so many constitutions have very short half-lives. The most notable exception to this unhappy fate is the American Constitution of 1787—up and running, with many changes along the way, for 235 years. Its duration is not just happenstance, for it rests on a sound intuitive assessment of how governments should generally work. To understand why some constitutions work, consider the arguments against constitutional precommitments.
One argument for not having a constitution is that legislation is a better way to deal with social problems. The legislator never has to plan solutions far in advance of their implementation, and thus has better information about conditions on the ground that let a legislature use its commendable financial resources and expert staff to fashion a solution. Therefore, there is a knock-down argument that some legislation is always necessary, and that not all matters can be resolved by some combination of social norms and private agreements, although these two are essential components of any holistic solution of good government.
The deep objection here is that the same legislators who on one occasion will act with dispatch and neutrality will on the next fall into hopeless disarray that pits faction against faction. Thus, as James Madison warned in Federalist No. 10, these forces often produce lopsided legislation benefiting one faction at the expense of the public. Any system of simple majority rule will routinely fall prey to this massive defect, which cannot be cured by further legislation. Hence, a fundamental law that constrains wayward legislators improves the odds getting sound laws.
The only way to achieve that sound constitutional design is to move back in time to entrench permanent rules that will prevent these degenerative outcomes. Necessarily, these rules cannot be based on any short-term consideration, but must tap into the key permanent features of human conduct—self-interest and scarcity—that pose ever-present risks. A solid constitution must guard against the abuse of force, the confiscation of property, the suppression of political speech, and the specter of kangaroo courts. It must recognize that market competition outperforms monopoly in both the public and private sphere and take steps to prevent the undue aggregation of power.
The tools to achieve these ends are two. The first creates a set of procedural hurdles that prevent transient political majorities from wreaking havoc on our institutions. Hence the separation of powers, coupled with checks and balances, can slow down the rate of legislation, thereby increasing the odds of passing good statutes that are more likely to command larger majorities than poor ones. Institutional delay serves as a filter, admittedly imperfect, to separate the wheat from the chaff.
Our Constitution also took advantage of the status of former colonies to create two levels of government, which divide power vertically between the national government and the individual states. Federalism also sets up complex dynamics by creating multiple states, each with its own constituencies, which can compete and cooperate with each other to create and preserve open national markets.
Given the persistent risk of self-interested factions, these structural protections must be backed up by substantive protections for rights of property, contract, speech, and religion. Private individuals and institutions thus act as counterweights to political powers. All of these steps must be taken early enough that people act, to use John Rawls’ famous phrase, under a (partial) veil of ignorance, so that the sound constitution can be adopted before selfish individuals come out from behind that veil.
This ideal of constitutional detachment has fallen on hard times in recent years, as the heavy polarization of our political institutions has given rise to a massive impatience, both right and left, to get things done my way right now. Here I concentrate on one recent New York Times article written by Ryan D. Doerfler and Samuel Moyn, professors of law at Harvard and Yale, respectively, who claim that the United States Constitution is broken beyond repair and should not be reclaimed. They insist that it should be replaced by a new document that gives more power to the people and takes power away from the courts, especially the Supreme Court. The article’s authors make no bones that they work squarely in the progressive tradition. Thus, they are deeply distressed with judicial decisions that have already led, or are likely to lead, to the loss of abortion rights, the end of child labor laws, the demise of affirmative action, the removal of union rights, and lots more.
That deep dissatisfaction in turn inspires bold prescriptions for progressive constitutionalism, including adding more justices to the Supreme Court, creating new states out of old ones in order to change the balance of power in the Senate, and abolishing the Electoral College, all “to reform courts and shift power to elected officials.” In their view, it is a mug’s game to puzzle over the “best reading of some centuries-old text.” Better, they say, to start afresh with contemporary views on modern issues.
But it is just at this point that their entire project becomes unglued. Justice Holmes said long ago in his famous 1905 dissent in Lochner v. New York that our Constitution is “made for people of fundamentally differing views.” In contemporary America, that includes citizens who might think labor unions are dysfunctional monopolies, or that child labor laws force children into illegal and perilous markets, or that affirmative action programs create unacceptable divisions in the body politic. Some Americans will assert that a packed Supreme Court would be able to function effectively; others that the Electoral College offers a bulwark against election fraud. With their dismissive attitude toward the breadth of opposing viewpoints, Doerfler and Moyn will never, thankfully, be able to command the political supermajorities needed to effectuate major constitutional changes.
It is also equally dangerous, in my view, to assume that a return to any robust democratic politics would actually line up with the progressives’ wish list. As with their conservative rivals, progressives carry out a continuing results-oriented campaign to determine which activities should be left to the political process and which should be given constitutional protection. While the political right generally thinks that the Second Amendment does much to cement specific gun rights, it also thinks that complexities surrounding abortion require, as Dobbs v. Jackson Women’s Health Organization held, that the political branches of government resolve the issue. Progressives hold the opposite views on both these issues. It is almost impossible to see how Doerfler and Moyn could offer a principled solution to these or other hot-button issues without any conceptual roadmap on how best to proceed.
Their essay also suffers from a bout of hopeless optimism on the political front. The United States is divided between blue and red states. Over the next months or years, the boundary lines between these two groups are likely to shift because of economic forces at home or changes in the military balance overseas. No one can ignore the current debate of whether the United States is in a recession or whether inflation and energy prices will both rise in the short run. Overseas, the full consequences of the Afghanistan debacle of 2021, as well as the uncertainties that surround both Ukraine and Taiwan, could lead any which way. In such an environment, there is no reason for any progressive to be confident that he would be able to win at the polls what he had lost in the Supreme Court, or vice versa.
The different responses to Dobbs in blue and red states are a strong indication that if these issues are resolved at the state level, huge disparities in dealing with guns and abortions will become the norm. There is every reason to believe that these two divisions will replicate elsewhere, as on labor reform that divides union and antiunion forces on such key issues as right-to-work laws. Indeed, if the Republicans take over either the House or the Senate, or both, during the midterm elections, divided government will lead to pitched battles.
It should be painfully clear that fundamental constitutional choices should not rest on imperfect forecasts of the next political election. The Constitution has the decisive advantage of offering a default position that is not obviously rigged to favor one side or the other. Progressives like Doerfler and Moyn are, of course, free to push all of their political preferences within the current constitutional structure. But they go a step too far in making ambitious but amorphous proposals to reshape the constitutional landscape because they are unhappy about key Supreme Court decisions of the last term.
