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Tuesday, July 05, 2011

A Constitutional Crisis for Liberals and Libertarians: The Declaration of Independence and the Mythologocial Side of American Constitutional Culture

Constitutional meaning is hotly contested in the United States today.  This is hardly an unprecedented state of affairs.  Questions of constitutional fidelity and constitutional restraints on policy making have figured prominently in each of the nation’s several epochs of heightened constitutional awareness, as Bruce Ackerman and many others have reflected.  Indeed, supposed periods of relative constitutional quiescence and consensus can be described as such only in comparative terms, by contrast to other periods such as the Civil War and Reconstruction or the early Neal Deal when constitutional politics were obviously especially freighted and enthused and indeed even dangerous.  Whether or not government under the Constitution has actually been imperiled in these phases of constitutional ferment, during each of them a great many people have gone on record as fearing the imminent demise of the Constitution they love.  Perhaps the phrase constitutional crisis is exaggerated or at least lifted infelicitously from British political usage where it was employed with reference to constitutional impasses surrounding the Parliament Act of 1911 and the Abdication of Edward VIII in 1936.  Crisis implies to me at least the possibility of the collapse of the existing system, and even during the American Civil War (surely the greatest of this country’s alleged constitutional crises) only the geographic scope of governmental operations under the United States Constitution was at stake, not government under the Constitution per se.  Still, the concept of constitutional crisis resonates with millions, and there seems to be a mounting sense in many quarters that this nation is sliding towards a renewed constitutional crisis of truly epic moment.

But what is it about the Constitution that appears under threat to so many vocal devotees of varying constitutional stripes?  What are the terms of the great constitutional contest just around the corner?  Is there truly more at stake than the choice between divergent political outcomes and policy options favored by rival votaries?  What parts of the Constitution as we know it will be annulled if either side wins the battle to repeal the Affordable Health Care and Patient Protection Act lovingly known as Obama Care?  Is text under threat?  Structure?   Whole Articles destined for the scrap heap if one or the other side prevails?  Or is it a favored strand of Supreme Court case law that is in jeopardy?  Or a cherished academic theory about the Constitution?   More than any of these fine things, I think, what those animated by contemporary constitutional politics fear is repudiation of a mythological vision that depends more on constitutional culture and iconography than on constitutional text and structure.  From Sarah Palin and Glen Beck on television and at camp meetings to Michelle Bachmann and Ron Paul in debate and on the campaign trail, those who warn that the Constitution as we know it faces imminent or ongoing attack are generally quick to invoke the founding fathers, the Spirit of 1776, and the full panoply of origination myths surrounding the creation of the American Republic.  They do so generally not just for the sake of rhetorical flourish, but rather to appeal to the highest authorities in their constitutional value system. 

Independence Day does not tend to focus the patriotic mind on high political theory so much as on celebration of the distinctive national character, and like all national characters that of the United States is as much artificial as it is organic, and as much fluid as it is stable.  For better or worse, nationalism anchored in backward looking myth is a human construct, and conscious effort is required to prop it up.  Some people openly acknowledge and cherish instability, laden as it is with potential for success or failure, and a plasticity that invites intervention by the shaping hand.  Change we can believe in as the slogan went.  Others chafe at their own rootlessness and the rootlessness about them, and yearn to see change fenced in and controlled.  I have oscillated fairly sharply between these opposite poles at different stages of my life, sometimes yearning for government empowered to facilitate radical change, sometimes for government constrained to do no more than stay the courses and maintain the policies adopted by its direct and distant predecessors.   My urges along these lines have generally been more visceral than theorized or philosophical, and on a very basic level, I think this bipolar tension between tendencies to embrace or shun activist government mirrors the tectonic clashes driving popular constitutional politics today.   Lawyers and legal academics tend to think constitutional law is a product of text and doctrine, but I strongly suspect a more common sense of the Constitution for someone who does not identify as a lawyer and legal academic takes roughly the following two part form:  (1) The Constitution mandates political outcomes I desire, and prohibits those I dislike.  (2) The legitimacy of those outcomes is measured by testing them against the political principles embodied in the foundation of the United States (which fortunately coincide with my own principles).

It’s natural enough perhaps for professional lawyers to scoff at this condensed short form version of constitutional essentialism on the grounds that it leaves out text, structure, and case law, but it has a powerful popular appeal, and a prestige pedigree, coming very near to the (admittedly more self-effacing, theoretically grounded, and historically rooted) positions Thomas Jefferson assumed during his struggles with Chief Justice John Marshall during the first three decades of the nineteenth century.   Marshall’s tactically shrewd maneuver in Marbury and McCulloch was to insist that the Constitution reduced to written form in a single instrument was particularly part of the realm of law, amenable to judicial supervision, interpretation, and enforcement.  As axiomatic as that postulate seems to us today, it was just as easy for members of his generation to view that same Constitution as something inherently political and contested, not chiefly or even at all within the province of the judiciary, and not wholly reduced or reducible to written form in a single instrument.  Jeffersonian departmentalism (under which each department of government is the supreme constitutional arbiter within its own sphere) and popular sovereignty (in which the political will of the living generation is the ultimate constitutional authority) seemed as self-evidently correct to many of his contemporaries in the Revolutionary and Early National scene as Marshall’s celebration of the distinctions between the American constitutional republic with judicial review from the British system of legislative omnipotence under natural law does to most inward looking American constitutionalists today.   There is nothing inherently right or wrong about constitutionalism in the styles of A.V. Dicey (legislative omnipotence), Thomas Jefferson (departmentalism and active popular sovereignty that does not go dormant in non-Ackermanian moments), James Madison (a system of checks and balances reduced to a short code), or John Marshall (judicial supremacy based on an instrument that did not say a word about judicial supremacy when he wrote Marbury and continued silent on that point when his successors affixed each of their signatures to Aaron v. Cooper some 150 years later).  One can coherently operate as a constitutionalist in the American tradition without obsessing over text and case law.   Jefferson’s retirement letters to Madison belabor the theme of constitutional threats and violations at the hands of Marshall, but the reader soon discovers that the constitutional touchstone Jefferson refers to in measuring Marshall’s constitutional infidelity is neither the seven articles written in 1787 nor Bill of Rights written in 1789, but rather a set of Whiggish principles and conventions respecting legislative supremacy that crystallized during the English constitutional crises of the seventeenth century.  Indeed Jefferson was not above getting misty eyed and mystical about seventeenth century English Whigs, in much the fashion that a great many popular constitutionalists today are prone to look with almost spiritual reverence towards the image of our founding fathers rather than to text and case law when extolling constitutional fidelity on the part of reprobate nation.    

What then is the source of those core foundational beliefs that comprise foundation mythology, those principles and stories associated with the text and its creation that resonate so deeply with those who fear that the Constitution is under assault by its deontological enemies?  For writers as diverse as Abraham Lincoln and Louis Henkin, the constitutionalism behind the constitution has been Jefferson’s Declaration of Independence.   I submit that it matters profoundly whether those of us who cleave to the Declaration in contemporary constitutional conflicts think principally in terms of the Declaration’s general part or special part, which is to say in the first place its description of the natural law principles according to which just government is practiced and self-determination fulfilled, and in the second place its list of grievances against British imperial authority.   Those who focus on the general part I view as my fellow travelers, internationalists in the tradition of the Enlightenment who cherish human progress and read their Declaration like Harvard historian David Armitage in his 2008 study The Declaration of Independence: A Global History.   In contrast, those who focus on the Bill of Particulars, the special part detailing perceived imperial wrongs, worry me profoundly, for I can’t help but think they cherish rebellion as a wonderful thing in its own right, a doorway to adolescent thrills, primitivism for primitivisms sake, imaginary conflict with parent figures, and war with Europe to purge the soul and get back to American-kind’s pure and violent essentials.  As suggested Saturday by E.J. Dionne in Washington Post editorial , some among this camp that worships the special part drift away even from the concrete character of the enumerated grievances in the Declaration towards a broader claim (wholly divorced from the Declaration’s text) that government is always a bad thing.  I sometimes wonder whether Clarence Thomas doesn’t come close to adding a special theoretical veneer to the radical school’s atomistic claims by proclaiming that the real constitutionalism behind the Constitution is not the Declaration of Independence but the Articles of Confederation, in the incoherent sense that the framers found the non-existent federal government under the Articles so terrifyingly strong that they assembled a new constitutional edifice featuring a federal government with very substantial enumerated powers in order to ensure that the states were better protected against federal over-reaching than they had been under the constitutional system of the Articles which featured no federal government at all.   Without having in mind or perhaps being aware of the Articles, Rick Perry and Ron Paul approach the same result in insisting that the Constitution was made by the states for the states, not by the people of one nation embracing one new national government.


Ever since my days as an at least slightly jingoistic high school nerd in the 1980s, my favorite part of Independence Day has been reading and reflecting on the Declaration of Independence.   The first two paragraphs explaining the Continental Congress’s theory of just government, natural rights, equality, and the right to self-determination have retained all their luster as I’ve aged, although I’ve grown to appreciate them differently since I began teaching comparative constitutional law and international law about five years ago.  I can no longer think of Jefferson’s general outline of legitimate grounds of secession of one nation from a larger empire without  comparing his criteria for justified secession with those outlined in the Canadian Supreme Court’s famous advisory opinion In. Re. the Secession of Quebec. More recently still, as I prepare to move to the University of South Carolina for the coming academic year, I find myself often mulling over the general theories of secession outlined in the Declaration in the broader context of recent scholarly efforts to offer a global theory of self-determination, such as those explored in Secession: An International Phenomenon, a series of provocative essays edited by University of South Carolina historian Don H. Doyle comparing the secession of the American South to other secession movements in modern history.  From the perspective of the global history sketched by David Armitage or the perspectives of law and philosophy developed by Don Doyle and his colleagues, the principles in those two opening paragraphs of the Declaration have help up very well indeed.  Whether the cause that Jefferson advocated was just or otherwise, the measures he described for judging its justice echo and endure.  In marked contrast, the Bill of Particulars, developed in the succeeding 27 paragraphs of the Declaration and reciting concrete grievances with British imperial authority, troubles me more with each Independence Day than it did the year before.   I am in no position to pass judgment, but I cannot say that I find all 27 paragraphs of charges convincing.

There are no official casualty figures on the imperial side of the Anglo-American civil war of 1775-1783, so estimating total deaths during the War of American Independence  is by its nature inexact, but it is no gross exaggeration to suggest that in the vicinity of 40,000 colonial rebels, loyalists, Native Americans, imperial forces from Britain and Europe, and others lost their lives in the eight year war, and that at least 100,000 loyalist were driven into exile in Canada.   The thirteen rebellious British North American colonies in 1775 had a non-Native American population of about three million compared to the U.S. population of some three hundred million today, so in relative terms the human toll of the War of Independence had an impact equivalent to that of an American war in our time costing four million lives on American soil and driving ten million compatriots into exile today.  What wrongs of 1763-1776 were vindicated at this enormous cost from 1775-1783?  Let us return to the list of grievances in the Declaration to help aid our memory.  

This essay has grown far too long already for this forum, so I will not recite each point laid out in the 27 paragraphs charging British authorities with alleged offenses warranting secession from the Empire and war to establish a new nation.  Rather, I will point out a few major themes among them, and focus on a few violations the singers of the Declaration considered particularly grievous.  On one basic level that only began to resonate widely with the population until the months immediately preceding the Declaration, colonial grievances reflected the simple insight put famously by Thomas Paine in Common Sense, namely that it was absurd for an island to rule a continent.   In 1763, the overwhelming majority of politically active residents who thought about such things supported the subject matter jurisdiction of the Westminster Parliament over the British North American colonies, in part because that jurisdiction was exercised rather lightly respecting internal matters of the mainland provinces.  Once jurisdictional conflict arose over taxation and tax enforcement issues, increasing numbers drifted gradually into the independence camp, with wide circulation of Paine’s manifesto in the winter and spring of 1776 dramatically quickening the pace and lending incipient self-determination sensibilities a strong anti-monarchical hue.  While Paine’s claims have their logic, it took the coming of civil war in British North America in 1775 to ripen the patriotic mind for their reception in 1776.   But given that imperial taxes were light – in fact far lighter in the colonies than in the home islands – it is fairly hard to move from the claim that their abolition demands self-determination to the claim that once self-determination was favored by a bare plurality of the politically empowered population its attainment without the consent of others affected (Native Americans, enslaved Africans, loyalists, pacifists, Canadians) justified a war costing 40,000 lives.  Apart from rejection of Parliamentary jurisdiction to tax and measures taken by the King’s government to enforce that jurisdiction, colonial grievances concerned imperial constraints on colonial efforts to appropriate lands for purposes of exploitation.  Here more than an absence of proportionality causes me to wonder about the legitimacy of the resort to arms to support what Armitage calls mere settler grievances.   Concrete charges in the Declaration of Independence justify the use of armed force to attain unilateral secession in order to nullify the Quebec Act and the Proclamation Line, and the sales pitch here is not just nationalist and racist, but what today would be considered at least border line genocidal. To speak plainly, principal grievances enumerated in the Declaration’s Bill of Particulars include imperial interference with Indian removal and imperial toleration of French speaking Catholics.   These are not grievances worth fighting for, worth 40,000 lives, worth driving at least 100,000 from their homes.  One cannot in good faith argue in retrospect that a self-determination movement by a political minority (or even plurality) and the defense of the movement by extreme violence is justified in order to repulse imperial efforts to partially protect racial and religious minority populations against settler aggression.  At least one cannot do so consistently with the universal and enlightened claims about equality and human rights invoked in the Declaration’s general part.

Over the past twenty years I have enjoyed a great many things, including reading nearly all of Jefferson’s surviving 19,000 letters while working on my PhD, learning about human rights from Louis Henkin and legal theory from George Fletcher while I was a student at Columbia Law School, teaching at Washburn Law School from 2005-2011, and for these last few weeks making a few longer than average entries on this first rate Blawg.   I have also enjoyed many wonderful and warm Fourth of July celebrations with friends in England, New York City, Baltimore, Arlington, Monticello, and Kansas.   I look forward to many more, with lots of spectacular explosions and grilled meat, and perhaps if Whiggish optimism is not yet wholly exhausted two hundred and more years after the Enlightenment has run its course, a little more celebration of universalism, human rights, and aspiration for happiness, and a little less celebration of collective violence among tribes and peoples.

Posted by Bill Merkel on July 5, 2011 at 08:41 AM in Constitutional thoughts, Culture, Current Affairs, Law and Politics, Legal Theory | Permalink

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