The failing Constitution

Here’s an interesting essay (gift link) on the (dis)enchantment of Americans with our Constitution.

Originalism has gathered strength by tapping into this reverence — deploying the authority of the framers in order to pass off originalist interpretation as the epitome of restraint and objectivity. Rana notes that originalism has allowed conservatives to undermine progressive policies while using the soothing language of constitutionalism.

According to this line of argument, the damages of Constitution worship extend to the structure of the political system itself. National politics gets increasingly funneled through the judiciary, with control of the courts — especially the Supreme Court — becoming a way to consolidate power regardless of what the majority of people want. This disempowerment of majorities, combined with political gridlock and institutional paralysis outside the judiciary, fuels popular disaffection. The document that’s supposed to be a bulwark against authoritarianism can end up fostering the widespread cynicism that helps authoritarianism grow.

Rana says that the urge to seek salvation in the Constitution has stunted not only our political behavior but also our understanding of what’s possible. Americans tend to overlook the possibilities of mass democratic politics precisely for this reason — we succumb to the conventional wisdom of Constitution worship, thinking that political progress is a matter of adhering ever more perfectly to the “essence” of the document, when the building of majorities is invariably a more complicated process.

A few general points:

(1) Originalism, when it’s not a hypocritical pose, as it often is (see the affirmative action and voting rights cases for instance), is a coherent approach to constitutional interpretation. The problem is not, as is often claimed, that it’s incoherent: it’s that it’s deeply reactionary by definition. “Let’s maintain the political arrangements favored by elites 230 years ago” is the textbook definition of reactionary ideology. The two strategies for getting around this, if you’re not a reactionary, are ahistorical mysticism — the Framers were not ordinary politicians at all but sages and seers etc. — and ahistorical textual animism: the Constitution is a “living document” whose meaning changes with the times. (The latter is the traditional progressive strategy for getting around originalism, and it would be widely recognized as a laughably absurd claim if it had not been necessary to invent it in the first place).

(2) The main problems with the Constitution are structural, and really not amenable to magical thinking about a living document. They are the Senate, the Electoral College, and life tenure for judges who are installed via the anti-democratic dysfunctions of the former two institutions.

(3) There’s no obvious solution to this set of problems, because the problems are a product of a system that’s designed to resist attempts at democratic reform. See point (1).

(4) National divorce is a dumb idea because political and ideological fissures are distributed along urban/suburban v. exurban/rural lines, rather than by states or larger regions.

(5) I (sincerely) would like to hear better ideas, that don’t involve underpants gnomes like 67 tolerably progressive Senators.