Let’s think constitutionally

Americans typically consider questions about the meaning of the Constitution through the prism of their political views and values. As a consequence, they tend to defend as constitutional the acts of officials whom they support, and criticize as unconstitutional the acts of those representatives whom they oppose. This approach implies that the meaning of the Constitution turns on whose ox is being gored. Politics, partisanship and party affiliation are the controlling levers of constitutional understandings.

This method of constitutional interpretation, it is obvious, converts the Constitution, to borrow Thomas Jefferson’s homespun phrase, “into a thing of wax,” an object that is subject to political manipulation, devoid of any intrinsic, objective meaning. In this context, the Constitution can be made to mean anything the reader wants it to mean. This is constitutional nihilism, and it undermines the very premise of American Constitutionalism and the rule of law. It precludes achievement among the citizenry of shared understandings about the meaning of the Constitution which, in turn, prevents consideration of the constitutionality of policies and laws apart from the deep division and polarization that characterize contemporary America.

There is a better way, one that might help our nation overcome the deep polarization that besets us. Let me suggest that we think, constitutionally.

Chief Justice John Marshall set forth this standard in 1819, in the landmark case of McCulloch v. Maryland: “The peculiar circumstances of the moment may render a measure more or less wise, but cannot render it more or less constitutional.” A century later, Justice Oliver Wendell Holmes similarly declared: “The criterion of constitutionality is not whether we believe the law to be for the public good.”

The wisdom of Marshall and Holmes on this score cannot be overestimated. What it means for the public is that we should refrain from impulsive declarations of unconstitutionality simply because we object to the policy in question. Rather, we should distinguish the relative wisdom of a measure from the question of whether or not it is constitutional. Such an approach lends itself to critiquing and improving legislative proposals.

That is, we might be inclined to embrace a bill as good public policy, but conclude, upon reflection, that it contains provisions that are inconsistent with the Constitution and require some improvement. If all Americans would embrace this approach we could, at a minimum, sit at the same common table, despite differences of politics and ideology, to fairly discuss the relative legality of legislative and executive acts. This enlightened means of interpreting the Constitution would have the likely benefit of lowering the wall that polarizes the citizenry.

Grasping the distinction between the wisdom of a measure, and its constitutionality, constituted a formative moment in my development as a constitutional scholar. My own experience may prove valuable for readers.

Years ago, I was engaged in a project on the question of how the Constitution allocated the authority to terminate treaties. Although the Constitution, in Article II, provided that the treaty making power was vested in the president and the Senate acting together, it was silent on the question of which branch or branches possessed the authority to terminate treaties. My initial premise, based on a review of the literature, suggested that the president enjoys the authority to terminate or abrogate treaties on behalf of the United States.

However, the more deeply I examined the issue, the more I realized that, for a variety of reasons, the framers of the Constitution could not have contemplated the idea of placing in the president the authority to unilaterally terminate treaties. Indeed, the location of such awesome authority in the hands of the executive would have undermined their design for the conduct of American foreign policy, which was grounded on the principle of shared or collective decision- making among the departments of government, and the rejection of independent presidential power.

This extensive research led to the conclusion that the framers had placed the termination authority in the treaty power, that is, the hands of the president and the Senate, to terminate treaties, just as they possessed the authority to make treaties. In short, the principle of symmetry governed. This constitutional conclusion collided with my view at the time that the Constitution wisely vested the termination authority in the presidency.

What was I to do? I might have manipulated my findings to serve my sense of the wisdom of unilateral presidential power to terminate treaties, but that would violate my conception of a scholarly duty to follow the evidence. I had no interest in converting the Constitution into “a thing of wax.” Thus I accepted the fact that my initial view of the allocation of authority to terminate treaties was, in the end, wrong. Now, I accepted the evidence. With that acceptance, and further contemplation of the framers reasons for locating the power in the treaty-making authority, I arrived at a clear understanding of the wisdom of the framers in granting the authority to the president and Senate.

That moment—a teaching moment—convinced me of the importance of thinking, constitutionally. I was free, of course, to believe that the framers had erred in their decision, but I was not permitted, if I was interested in maintaining my own intellectual integrity, to manipulate or bend the evidence to my own ideological preferences. If everyone did that, the Constitution would be deprived of its essential meaning and would, as Jefferson warned, become a “thing of wax.” There lies the path to the destruction of the rule of law and American Constitutionalism.