The Economist is warning us of the “Perils of Constitution-Worship.” The piece attacks the tea partiers for holding the Constitution in too high of regard. Apparently “the constitution provides few answers to the hard questions thrown up by modern politics.”
Our constitutional principles, not the words, deserve reverence and understanding. It is ironic that The Economist, a British publication existing under an unwritten constitution that is essentially a collection of principles, seems to forget that constitutions are about more than the text. As Captain Kirk overacts so clearly, if you don’t understand the principles at the heart of the Constitution then revering the words becomes nothing more than idolatry.
But the piece does offer an interesting point of view that should be addressed seriously by advocates of originalism and constitutional fidelity. Originalism is always stylized as in pitched battle with the “living Constitution” and vice versa. Few people, however, are 100% originalist or 100% living constitutionalist. To be the former, for example, would be to believe that the First Amendment only prohibits prior restraint (as many now think was the original interpretation), and that the Establishment Clause does not apply to the states. A 100% living constitutionalist, on the other hand, would ignore the text completely and view the Constitution as irrelevant.
No serious scholar holds either of these views. At best, “originalist” or “living Constitutionalist” describes a disposition, not a rigorous set of viewpoints. At worst, the phrases are merely epithets.
This is, ultimately, the problem with The Economist piece: it ignores the disposition behind constitutional veneration, which is an appreciation of the principles upon which it was constructed. It treats tea partiers’ appreciation of the Constitution as totemic rather than rational. While I’m sure that there are those who simply revere the Constitution as a pseudo-religious object, those of us who venerate the Constitution intellectually do so because it offers a set of principles that offer the most reliable check on arbitrary rules that violate our rights.
It is absolutely true that the Constitution cannot offer an answer to every question that arises in the modern world. It was not designed to. Modern constitutions, be they the European Union’s not-yet approved one or most constitutions of American states, try to do too much. They become snowballs of amendments and provisions that should mostly be statutory. An overview of modern constitutions shows that most countries and states have forgotten what constitutions are: a statement of principles and a framework under which those principles can be enacted.
Unfortunately, many American politicians have also forgotten what constitutions are. I don’t mean that they’ve forgotten the nuances of the Dormant Commerce Clause, I mean that they seem to have forgotten that the Constitution exists. As I blogged before, during the health care debates many representatives displayed an unabashed disdain for the Constitution and any constraints that it may place upon their ability to make the world awesome (my friend Aaron Powell’s memorable phrase). For many, bringing up the Constitution is now either reactionary or jingoistic.
This is precisely the type of attitude from elected representatives that the Constitution was designed to cabin: that they are constrained only by the limits of their visions, the strength of their rhetoric, and the shouts from the crowd. Originalism is a call for humility. To be an originalist is to champion the virtues of constraint–constraint by checks and balances and rights–against the allure of power and the self-satisfaction that comes from distributing largess and picking favorites. These are the principles that undergird the Constitution and they are the philosophical, rather than the idolatrous, reasons that we “worship” that wizened old document that has seen better days.
So, heed the words of Captain Kirk: don’t worship the Constitution, read it, study it. And even if you do not “fully understand” the words–like the slack-jawed alien in the clip–at least learn the principles. Learn that it does not create a system in which all governmental powers that are not prohibited are permitted. It creates a system in which all that is not permitted is prohibited. And, if you don’t like this, try to change it through the proper channels. It is entirely possible, if not probable, that some desired policies are not constitutional. After all, it’s not a document designed to enthrone our desires; it was designed to constrain our avarice.
Trevor Burrus 