What Makes the Constitution Constitutional?
October 30, 2009
I don’t know. Do you?
Comments are now closed but are well worth reading. If you would like to chime in or would like to suggest that I open comments again, then, please feel free to contact me via e-mail at: rocha DOT 8 AT osu DOT edu
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35 Comments
Comments are closed.
What makes a circle circular?
It’s the document that defines the constitution, i.e. the makeup, of the American government. It is in this sense “constitutional”.
JS,
You asked: “What makes a circle circular?”
Here is my reply: Its shape and dimension.
What makes a circle something other than, let’s say, an oval or a sphere is its shape and dimension. That is also why to be “circular” is not the same to be “round.”
We can find this specific shapeliness in the circle’s symmetry revealed to our senses along the borders of its two-dimensional color.
And, from those impressions, we can say very exact things about the nature of a circle’s parts and how they relates to each other (e.g. radius, circumference, and so on).
That’s my best shot at your question. How about you give mine a try?
I’ll even try to help you out. Since you seem to think that there is a strong analogy or simile between the constitution and circles, then, please make the analogy or simile work by the categories I offered to you here. Then we can compare and see if it works.
My suspicion is that circles and the constitution are not of the same kind of thing, besides being things of some kind (if the constitution can be called a thing with any ontological seriousness—which I doubt).
Zach,
So what makes this makeup constitutional? The document? As in the paper, or the production of the text, or the intent of the text, or all of those things together? And, if so, then, why is that foundational beyond historical situatedness? Like, for example, the Gospel or the human person?
The constitution is a written contract. A legal agreement and framework for a federal government which was ratified by the states.
Michael,
Thanks for that. But I am wondering how that contract (unlike rental agreements and other contracts) becomes “constitutional.” How is it that one contract rules presides over the legitimacy of all other (lower) forms of contracts? What makes it be in that way?
This makes me want to add Barbara Jordan to the list of 20th century non-Catholic heroes.
“My faith in the Constitution is whole, it is complete, it is total. I am not going to sit here and be an idle spectator to the diminution, the subversion, the destruction of the Constitution. ”
—- Barbara Jordan
R
Sam,
The states, in ratifying it, agreed that it would be the supreme law of the land. It even has a supremacy clause:
“This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the contrary notwithstanding.”
–article VI, paragraph 2
R,
So, why would such a thing be so dangerous to destroy (like, in previous examples, the Gospel or the human person)? What makes it that way? Where does it get its “supremacy” from? Deliberation? Suffrage? What?
If metaphysical questions are subversive then I guess Plato, Augustine and Aquinas were deconstructionists.
My point is that by its very nature of being the constitution, it is constitutional.
I think what you’re really trying to ask is why we accept the Constitution as the ultimate and final rule of law in the United States legal system, which in my mind is a different question. If that is indeed the real question you are asking, then I feel like your original post was a bit silly.
Sam,
The meaning of the text and the common consent it is given. It’s really not that complicated. It is not an eternal thing, like the Gospels. It’s a particular document for a particular people in a particular time and a particular place. This does not mean it is not a work with many bits of wisdom, perhaps even timeless wisdom. It just means it’s a political document.
Some questions require deep, metaphysical answers. Others don’t.
The term “constitutional” essentially means it conforms to the constitution, in the same way that “circular” means it has the form of a circle.
JS,
You are good to ask what I mean and I hope you will trust that I do mean the metaphysical version, not the belief-laden one you suspect.
I ask it for many reasons none more compelling to me now than this one: If God has been subjected to metaphysical inquiry again and again, then, why exempt the constitution?
Of course metaphysics brings us to our belief in one way or another, but to think that that is the outright goal of this question (I would hardly call it a post, except in the literal sense) would not be accurate to my intent. I really do want to know what makes the Constitution constitutional—why not unconstitutional (since it needs revision) or something else?
Now if you want to say that the constitution gets its constitutionality from itself, then, you cannot be speaking of circles in the usual sense, since they are rather universal, outside of history or time.
It gets its supremacy from the agreement of the states which ratified it.
The Declaration of Independence says that “governments deriv[e] their just powers from the consent of the governed”
So, a government that is based on a constitution which all states consented to is exercising just power. Jordan was saying that if a president is elected under the Constitution, and starts conducting himself as if he’s not bound by it, he is doing something dangerous.
I think that’s what she meant. Why is that problematic for you?
R
Zach,
If we want to say that something exists, then, it is up for metaphysical questioning, as I see it. And, yet, still, I have no idea what it is that gives the Constitution its constitutionality other than itself (as JS suggests). If that is the case, then, it seems deeply suspect to me.
Sam, (in response to your 5:18 comment to JS)
What is your definition of “constitutional”? I think I should have asked that before I tried to comment on this issue.
If you’ve said it already in these comments, I apologize.
Thanks,
R
Excuse me for my ignorance, but I still don’t really see what you’re trying to get at here. I am in no way stating the the Constitution is perfect/above moral or natural law. However, I do believe that to ask what makes the Constitution “constitutional” is to ignore the very definitions of both terms.
I would agree with R here, I think we need to first establish a common definition of “constitutional” before we can truly continue in a meaningful discussion.
R and JS,
You both raise this valid question: What is your [my] definition of “constitutional”?
And the truth is that I don’t know. I assume it comes from the constitution in some way, but am mystified as to how it asserts itself as a thing—for some, a thing on par with the world (what many call natural law).
So maybe you can help me to understand what constitutional means first since I have no idea myself other than hoping is has some referent to its noun.
It seems like what you are asking a question like “what makles the constitution legitimate?”
Is that what you are getting at?
I’ve often wondered the same thing myself, given that the War of Independence may not have been justified under just war theory.
Nonetheless, human societies need political authority. Whatever difficulties surround the American founding, they are long since past. The consititution is legitimate simply becasue it is and we need it to be. We don’t have another mechanism to cooperate govenrmentally with one another for the common good.
In others words this question is intended to figure out whether there is a constitutionality thing at all, beyond generic material attachments.
In a purely legal sense, I believe that something’s constitutionality refers to its conformity to both the written Constitution and subsequent judicial rulings (concept of judicial review).
Using this definition, I can hardly see how the Constitution could NOT be constitutional, since the Constitution of course conforms to itself.
ben,
Your pragmatic reply is tempting, but unsatisfying (as pragmatic claims tend to be, to me). But, as I said before, I am not asking about its legitimacy or morality, but simply about its grammar and whether that grammar is real or not in a serious universal way.
JS,
In this legal sense (which departs a bit from my ontological question, but seems perfectly legitimate nonetheless), isn’t that the big question?
Namely, whether things like laws and actions that most assume to fall under the shadow of constitutional umbrella are in fact constitutional or not? And from that constitutionality whether they are permissible or not? And from that permissibility whether they are somehow licit or moral or not?
This is a very good question and it points out a particular problem:
How can describing a certain law or action as “Constitutional” prove anything or be a constraint on our action, when the Constitution says whatever we want it to say.
If, for example, a right to abortion were added to the Constitution, would that make abortion right?
Of course not. And no catholic would obey such a law. But if that being in the Constitution does not provide a reason for accepting it, then how can the Constitution give us a reason for doing or not doing anything?
When someone says “That is (un)Constitutional” they are NOT simply describing the state of American law. they are offering a reason why some rule or law should be obeyed.
The “is/ought” distinction is often terribly abused in this way.
“Namely, whether things like laws and actions that most assume to fall under the shadow of constitutional umbrella are in fact constitutional or not? And from that constitutionality whether they are permissible or not? And from that permissibility whether they are somehow licit or moral or not?”
You know that only laws or governmental actions can be unconstitutional, right? Actions I take all day long may be impermissible or illicit or immoral, but they’re never going to be unconstitutional.
R
R
I apologize, but I feel inadequate to intelligently address the ontological question. My schooling in philosophy is progressing, but I am not to the point where I feel I can engage in such a discussion without making myself seem a fool.
However, I do feel I can address the legal question.
“Whether things like laws and actions that most assume to fall under the shadow of constitutional umbrella are in fact constitutional or not? ”
That is the purpose of our Supreme Court. As far as individuals are concerned, I’d say most actions are assumed to be constitutional under the 10th amendment, unless decided otherwise by the judiciary.
“And from that constitutionality whether they are permissible or not?”
I would have to say that, legally at least, actions that are constitutional would most definitely have to be permissible.
“And from that permissibility whether they are somehow licit or moral or not?”
This is where I believe things get interesting. I believe that all governmental authority is derived at its core from God. Therefore, actions permitted by the government are at the very least licit. There is a caveat, however. All governmental authority and the laws which stem from it are still subject to, and cannot contradict, the moral and natural law. We can see some very clear examples of this both in modern America and the “recent” past with abortion and slavery. Here we find two laws or rights derived from a legitimate government authority, but they contradict the natural law. They are therefore immoral and illegitimate, even though they may be “constitutional:.
phosphorius,
Again, I am not trying to make a point here. I really would like to know. I have many similar questions like: What make rights right? and What makes morals moral?
While i have much more pronounced views on morals I am less sure about rights or constitutionality, but I would to find out what the big deal is all about—really I would.
So, this is not a gotcha question, for me. It is a metaphysical one.
R,
JS captured precisely—and expressed better than I could—what I mean by “action.”
JS,
Your analysis makes plenty of sense to me. Yet, as you may know, law too is accountable to philosophy. And, as you lucidly address, the philosophy of law is thorny, at best. Given this thorny paradox or dialectic between the law and justice, then, how would you express such laws in a way that hold their feet to the fire, so to speak?
My problem is that I have little clue what that fire would be other than God or justice or something like that. But, then, the question would not be of constitutionality, but Godliness or justice. Right?
So why not be direct and say ‘just’ instead of ‘constitutional’?
I think in this day and age we find this problem most visible in the difference between materialists and supernaturalists, atheists and theists.
Without God, or at the very least some sort of metaphysical concept of justice/morality, then the only thing which can decide the legality or correctness of an action is a government or group through the act or threat of force. Without God, might makes right.
“But, then, the question would not be of constitutionality, but Godliness or justice. Right?”
The interesting point here is to note that the authors of the Constitution recognized this. Though not explicit in the text of the Constitution itself, it is so in the Declaration of the Independence and the writings of the founding fathers. We are endowed with our rights not by the government or the Constitution, but by our “Creator”. Especially in the writings of John Adams, it is clear that the founders recognized that the validity and continuing success of the American democracy and legal system relied on the fact that the American people were god-fearing people. The founding fathers recognized that all governmental authority is still subject to God and His natural law.
“So why not be direct and say ‘just’ instead of ‘constitutional’?”
It depends on the venue in which you are discussing the matter. I think that in any philosophical discussion in which we accept the existence of such concepts as justice and morality, then “constitutionality” is a term that fails to encapsulate the true meaning of the discussion.
If we were in an American courtroom, however, then “justice” can only be interpreted in terms of conforming to legality and constitutionality.
Now I see what you are getting at. It may be helpful to look at a different kind of constitution to shed light on the question. The Brittish consittution is not a single document,like ours, but a larger body of laws and tradition.
It could be that constitution might best be understood as the law that is most essential to the state. Understood in this way then, our constitution might be more broadly understood as larger than the document itself. It might include other documents like the Declaration, and even some non-legal documents like the Gettysburg Address, and other types of institutions like the Army. If we understand the constituion generally as those things which constitute the essence of the polity, then we can ask whether or not a particular document is part of that or not, and we could even have constitutionality without the constitution.
Understood in this way, I think we can answer yes, the Constitution is constitutional. I can’t imagine that America would be recognizably the same state without it.
“So, this is not a gotcha question, for me. It is a metaphysical one.”
ALL philosophical questions are “Gotcha!” questions. That’s why they made Socrates drink hemlock.
:-)
But how about this: The preamble to the Constitution outlines its goals and purposes. Could we say that a law is “constitutional” if we can reasonably expect it to serve those goals and purposes?
Of course, this would simply push the problem back to “Are those goals and purposes worth achieving?”
Well now if you’re asking about the Justice of our constitution, then that’s a different question. Ours allows for abortion, therefore it is not just.
Thanks everyone! I am not trying to wrestle this stuff down or shutdown this dialogue, rather, I am so perfectly delighted that we have reached a point where a question about the constitution has been treated with seriousness and charity—even though I wouldn’t endorse any of the concluding views here as my own—that I will close comments before things can get nasty or overbearingly tedious. (My own replies are tedious enough!)
I now realize that I also wanted to ask this question as an experiment to see if feelings and egos (my own, first and foremost) could be put aside about things like the constitution and politics in general long enough to reach a charitable discourse. I think it happened. I hope it continues very soon. Thanks again!