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.
This method of constitutional interpretation converts the Constitution, to borrow Thomas Jeffersons 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.
What this wisdom 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 legality of legislative and executive acts. This 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. 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.
Read the rest here:
- The 'Pulp Fiction' scenes that were not directed by Quentin Tarantino - Far Out Magazine - December 3rd, 2021
- Charlie Baker and the demise of the Yankee Republican - The Boston Globe - December 3rd, 2021
- Rights of individuals now a big threat to Western democracy - The East African - December 3rd, 2021
- Susan J. Demas: From guns to COVID, we're all trying to survive the GOP's culture of death Michigan Advance - Michigan Advance - December 3rd, 2021
- Opinion | Kyle Rittenhouse, Travis McMichael and the Problem of Self-Defense - The New York Times - December 3rd, 2021
- Five Science-Fiction Movies to Stream Now - The New York Times - December 3rd, 2021
- A Lung Cancer Survivor, Hero and Inspiration to Many - Curetoday.com - December 3rd, 2021
- Transcript: The 11th Hour with Brian Williams, 12/1/21 - MSNBC - December 3rd, 2021
- Dennis the Menace lives on: the influence of this 70-year-old on everything from darts to raves - The Conversation UK - December 3rd, 2021
- Another Day in the Colony by Chelsea Watego review a fierce manifesto for First Nations to flourish - The Guardian - November 25th, 2021
- How giving thanks fuels our drive to thrive | TheHill - The Hill - November 25th, 2021
- Keiji Nishitani, Zen's Philosopher of Nothingness | James Ford - Patheos - November 25th, 2021
- Why the Indian farmers' protest victory is good for us all - Religion News Service - November 25th, 2021
- Cars That Were Ruined by a Redesign: Window Shop with Car and Driver - Car and Driver - November 25th, 2021
- Why you need to listen to IDLES now - Evening Standard - November 25th, 2021
- The vaccine your kids need the most - The Citizen.com - November 25th, 2021
- Succession hits a new high as the Roys pick the next president and Kendall does some recruiting - The A.V. Club - November 25th, 2021
- Review: Kevin Birmingham's book "The Sinner and the Saint" - Los Angeles Times - November 25th, 2021
- U2's Bono Wrote a Song About Spider-Man That Was Supposed to Make Fans Cry - Showbiz Cheat Sheet - November 25th, 2021
- AOC Warns of Political Disaster for Democrats If They Under-Deliver on Promises - Truthout - November 25th, 2021
- Festival of Faiths examines religion as something that can divide and heal - 89.3 WFPL News Louisville - November 17th, 2021
- The Brutal, Bloody, Bawdy, Beautiful Return of The Great - Vulture - November 17th, 2021
- Has the GOP Had Enough of Madison Cawthorn? - PoliticsNC - November 17th, 2021
- Listen to The Wombats new single Everything I Love Is Going To Die - NME.com - November 17th, 2021
- The Brass Against urinating incident was everything wrong about rocknroll behaviour - The Independent - November 17th, 2021
- Khemmis: 5 Albums From Each Member That Inspired "Deceiver" - decibelmagazine.com - November 17th, 2021
- Does Xi Jinpings Seizure of History Threaten His Future? - The New Yorker - November 15th, 2021
- The Sinner and the Saint review the story behind Dostoevskys Crime and Punishment - The Guardian - November 15th, 2021
- David Perry and the incredible heroism of ordinary people - Spiked - November 15th, 2021
- Barnes: There is hope, for He has given us the remedy - Elizabethtown Bladen Journal - November 11th, 2021
- Everything, All the Time, Everywhere by Stuart Jeffries review how we became postmodern - The Guardian - November 11th, 2021
- UK band Squid build up worlds only to destroy them - Chicago Reader - November 11th, 2021
- Sustainable banger: Jarvis Cocker stars on climate-themed dance track - The Guardian - November 11th, 2021
- Playing around in the 'metaverse' - - November 11th, 2021
- Joe Biden and the spectre of Donald Trump - New Statesman - November 11th, 2021
- 'Nothing Matters': What Elon Musk Thinks About the Concept Of 'Nil' - News18 - November 11th, 2021
- Cop26: What the optimists and the cynics are saying about progress so far - centralfifetimes.com - November 5th, 2021
- Song of the Week: Radiohead Return to Their Roots with the Unearthed Follow Me Around - Consequence - November 5th, 2021
- What if the truth about Jan. 6 is revealed and the American people just don't care? - Salon - November 5th, 2021
- Research With Cellular Therapy Ramps Up in Mesothelioma - OncLive - November 5th, 2021
- Russian nihilist movement - Wikipedia - November 1st, 2021
- Existentialism vs Nihilism Explanations and Key ... - November 1st, 2021
- MUST SEE: Dr. Peter McCullough Issues Warning on ... - November 1st, 2021
- The real and fictional horror that characterised 'nu-metal' - Far Out Magazine - November 1st, 2021
- Take a trip to the Shadyside with Netflix's Fear Street films The Elm - Washington College Elm - November 1st, 2021
- Lucianne.com News Forum - Nihilism Is Not a Good Look for ... - October 17th, 2021
- Stanley rosen nihilism a philosophical essay pdf - October 17th, 2021
- Todd Haynes on The Velvet Underground: Warhols Factory offered equal opportunity objectification - The Independent - October 17th, 2021
- Revisit Day of the Dead for a Reminder That Sometimes Zombies Deserve to Win - Gizmodo Australia - October 17th, 2021
- 'I Know What You Did Last Summer' Has Nudity and Drugs NowBut No Hook - The Daily Beast - October 17th, 2021
- How does Halloween Kills compare to the slasher movies before it? - The A.V. Club - October 17th, 2021
- Dinosaurs Might Have Actually Looked More Cuddly Than We Think - Nerdist - October 13th, 2021
- LETTERS TO THE EDITOR: Say goodbye to mastery of any kind - Washington Times - October 13th, 2021
- Covid has shown the limits of big government - Stuff.co.nz - October 13th, 2021
- What Makes John Carpenter's The Thing So Effing Scary? - tor.com - October 13th, 2021
- Curves and punk, Fashion Prize, winner Jessica Hall talks about her journey to the runway - Shreveport Times - October 13th, 2021
- Squid Game: violent madness or a trip back to the old schoolyard? - Sydney Morning Herald - October 13th, 2021
- Nightstream Review: 'We're All Going To The World's Fair' Illustrates the Dark Coccoon of the Internet's Rabbit Hole - Substream Magazine - October 13th, 2021
- What's the best way to type _()_/ - The Atlantic - October 11th, 2021
- The Joy of playing Deathloop as the pettiest man in existence - Rock Paper Shotgun - October 11th, 2021
- Streaming: Fast & Furious and other great car movies - The Guardian - October 11th, 2021
- Becky Chambers on why the best aliens are just a little bit human - Vox.com - October 11th, 2021
- Depression and Dad rock: Sam Fender makes heroic anthems from hopeless situations - ABC News - October 11th, 2021
- Platinum End - The Fall 2021 Preview Guide - Anime News Network - October 11th, 2021
- Georgia Has a Chance to Prove It Isn't 2017 - Yardbarker - October 7th, 2021
- Fresh off that epic finale, What If...? head writer teases Season 2 plans: 'We should be as free as can be' - SYFY WIRE - October 7th, 2021
- Sam Fender: Seventeen Going Under review music that punches the air and the gut - The Guardian - October 7th, 2021
- The ballad of Earl Sweatshirt and Mac Miller - The Record - October 7th, 2021
- The View From The Balcony: Notes in My Phone IV - The Local Voice - October 7th, 2021
- Glitter Box By The High 70s - Shepherd Express - October 7th, 2021
- The Ringer Staffs 2021 MLB Playoff Predictions - The Ringer - October 7th, 2021
- Phoebe Bridgers Concert Review: An Irreverent and Debilitating Performance | Arts - Harvard Crimson - October 7th, 2021
- Life as a yes-or-no proposition in Lyric Stage's 'Be Here Now' - The Boston Globe - October 5th, 2021
- 'Ted Lasso' and the Kindness Revolution | Arts - Harvard Crimson - October 5th, 2021
- What's The Coolest Thing About Your Car? - Jalopnik - October 5th, 2021
- #PulpNonFiction: From human beings to human resources - Bizcommunity.com - October 5th, 2021
- Succession, Stronger Than Ever, Builds Its Third Season Around a Family Civil War: TV Review - Yahoo Entertainment - October 5th, 2021
- Opinion: Texas election audit will build cynicism, not fairness - Yakima Herald-Republic - October 5th, 2021
- Nihilism Quotes (419 quotes) - Goodreads - October 3rd, 2021
- DailyCoin's Crypto Memes of the Week #10 A Journey Into the Philosophy of Absurdism By DailyCoin - Investing.com - October 3rd, 2021