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Is Constitutional Conservatism Neither? How Mistaking Our Nation to Be Constituted by One Document Offends Rule of Law

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Despite the republic's maturity, chasms divide how differing ideological viewpoints in the United States understand our constitution's fundamentals:

Liberal Stereotype:  The federal government must supervise healthcare to protect women from state legislatures that denigrate abortion rights.

"Constitutional Conservative":  As the Constitution says nothing of abortion, states should  reject   Roe v. Wade . And the Constitution precludes federal healthcare mandates, despite Justice Roberts's error on Obamacare.

Liberal Stereotype:  Our constitution today is more than just the document drafted in Philadelphia deemed adopted in 1788, with its amendments.

"Constitutional Conservative":  That would violate the rule of law, which requires legal certainty.

Liberal Stereotype:  No, the rule of law demands democracy and individual  rights, including the rights of gay Americans.

A little reflection and historical perspective resolves a lot of that gap. My "liberal" oversimplifies, but the misconceptions voiced by the "constitutional conservative" tend more to derail productive debate. Not presuming all constitutional conservatives think alike, I focus on monotextualists--those who claim a single document, alone, constitutes us. The times urge them to reconsider. The gun rights and other liberties monotextualists believe to be free, from not just federal but also state infringement, do not find protection from states' abuses in constitutional text alone.

In short, America is not constituted only by words of a 225-year-old document even the founders did not treat as exclusive.

True, we all somehow embrace it for constitutional meaning. But reflecting on how we know what constitutes our nation, the reasons for still looking to that text also direct our gaze beyond it. That is, the "1788 Constitution," as amended, has never been our full constitution--our threshold for government's legitimacy has always required more. Since independence, we have remained devoted both to the people's sovereignty and to inalienable rights. Through two centuries, the people sovereignly have endorsed a historically-developed understanding of the constitutional framework reflected in the 1788 text, an understanding abiding in precedent. What's more, as no inalienable rights--say, of privacy in spousal relations or of defending one's home--can have been alienated by failure to write them down, our constitution protects some rights beyond the amended 1788 text.

Neither legally nor politically legitimate, the persisting fiction of a single-text constitution obstructs genuine discussion, weakening the rule of law. True, we need legal clarity and predictability. But monotextualists evangelize an unattainable constitutional certitude--a mythologized fantasy that demeans the very democracy and individual rights the rule of law requires, that would violate our present constitution. Meanwhile, real contested issues languish for want of greater public notice and debate. By thus sidetracking our national discourse, strict-text zealotry undermines another rule of law value--public understanding. And misunderstanding proliferates when knowledgeable participants in public debate fail to contest such factually-bankrupt descriptions of our constitution.

Progress awaits a wider public respect for our whole constitution, blocked by two myths. The myth of law in general, "textual infallibility," mistakes that societies can draft perfect legal codes--schemes that handle all disputes with no clarifying, conflict-resolving, or gap-filling interpretation by judges. And from that fallacy monotextualists spin a second myth, "strict construction," which assumes it possible and legitimate to rely exclusively on words of constitutional texts. Overcoming those myths--admitting judges must elaborate our constitution--promises more-productive debate, focused on how best to constrain that judicial role.

For the pundits who appreciate that our full constitution is more than a narrow reading of text, yet still struggle with monotextualist claims, I offer rational and pragmatic responses: First, reason precludes a strict-text-only approach, since (I) a constitution is not just a document but a broader concept, ours including inalienable rights impervious to textual limits; (II) history shows pre-planned systems do not anticipate all legal issues, so judges must fill gaps; and (III) legal texts' inherent fallibility and original meaning's uncertainty prevent strict construction, which, even if possible, would violate inalienable rights and popular sovereignty. Moreover, a whole-constitution approach makes more practical sense, as (IV) amendment cannot eliminate need for interpretation and can undermine conservative values, while well-selected judges follow principles that limit their discretion when they provide needed interpretation; and (V) owning up to those realities still leaves much for debate, including abortion, gay rights, and federal power, but narrows the issues.

These five points also speak to conservatives recently inclined to constitutional reflection. The 2010 gun rights decision, McDonald v. Chicago, challenges monotextualist dogma about constitutional fundamentals. As the Second Amendment restricts the federal government, not the states, it did not apply to Chicago's challenged gun-control regulation. As detailed below, the Court thus exceeded limits of strict construction to find a federal right outside constitutional text alone, a right protecting gun owners from excessive state regulation. For those who hold such rights dear, realizing they depend on constitutional sources beyond text should provoke them to rethink monotextualism.  

I. Our Constitution Is a Concept that Includes Inalienable Rights

A nation is constituted by a set of ideas that define it politically and legally. That constitution is a concept, typically gray in details, not just a document that may presently express all or part of the concept. Most nations' main constitutional features do appear in one document. But the constitutional status and exclusivity of such texts remain ever subject to their current political and legal legitimacy. In 1788 we simply stopped treating our "Articles of Confederation and Perpetual Union" as a continuing authority, though that text's own terms precluded its being replaced through the 1788 Constitution's adoption process. And document titles alone do not decide. The United Kingdom is constituted without any document called "Constitution." Conversely, a nation is not simply assumed--without more evidence--to be exclusively constituted by terms of any document that bears the name "Constitution."

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Darren Latham, associate professor at Florida Coastal School of Law in Jacksonville, teaches constitutional law, comparative law, and international commercial law courses and writes on constitutional history and theory.

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Is Constitutional Conservatism Neither? How Mistaking Our Nation to Be Constituted by One Document Offends Rule of Law


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Most constitutional scholars, constitutional law p... by Darren Latham on Thursday, Jun 13, 2013 at 9:23:44 AM
of the U.S. and you'll see that the Constitution i... by Daniel Geery on Thursday, Jun 13, 2013 at 1:06:06 PM
Any legal system which fails to accord rights to t... by Vietnam Vet on Thursday, Jun 13, 2013 at 5:52:07 PM
I agree with much of this post. On the second poin... by Darren Latham on Sunday, Jun 16, 2013 at 11:54:42 PM
It is the spirit, not the text that counts. And ev... by BFalcon on Thursday, Jun 13, 2013 at 6:02:44 PM
I couldn't agree more. This is a well written, tho... by Opacus Black on Thursday, Jun 13, 2013 at 7:39:29 PM