Our Troubled Constitution

Tim Lee complains that "The general point that violating the constitution is wrong even if it leads to results we like is a position that hardly anyone in mainstream politics takes seriously" and there follows some fulminating about liberals who are "perfectly willing to countenance tortured readings of the First Amendment in the name of 'campaign finance reform,' of the Second Amendment in the name of 'gun control,' and of the Fifth Amendment in the name of 'urban planning.'"

Color me unconvinced. It's easy for a libertarian who's convinced that a non-tortured reading of the constitution would enact libertarianism to assert that the country's vast non-libertarian majority ought to be less concerned about our policy preferences and more concerned about non-torture of the constitution. The reality, though, is that where the constitution is really ambiguity-free then people are happy to abide by provisions they don't approve of. I think, for example, that judicial terms should be long, but fixed, rather than lasting until death or retirement. It's clear enough, though, that that's not the law.

Meanwhile, had the US Constitution not been written by a small and unrepresentative minority of wealthy individuals working in the 18th century, it's possible that it would do something like guarantee a right to health care. Folks on the left would read that as a straightforward constitutional enactment of a universal health care system. More libertarian-minded people, though, could probably devise "tortured" readings of the provision indicating that "after all just go to an emergency room" plus the status quo is good enough:



Meanwhille, from where I sit it's Tim's reading of the Fifth Amendment that seems tortured to me -- why shouldn't urban planning count as a public use? But leaving that aside, I suppose it does take some torturing of the Second Amendment's text to explain why the "right to keep and bear arms" doesn't guarantee people's right to keep and bear, say, weaponized forms of the VX nerve agent but I'd rather offer a tortured reading of the amendment than have deadly neurotoxins sold at the corner store. Obviously, there are some constitutional provisions I think should be very strictly adhered to, but those are just the provisions that I think enact morally worthwhile principles of justice. Maintaining the rule of law requires us to show some fidelity to precedent and to efforts at textual exegesis but whether or not we're "getting the text right" as such pretty little bearing on the issue.

The real problem is simply that the constitution is too hard to amend so that when provisions become outdated or unworkable or produces ludicrous results (VX gas, again) it's unduly difficult to change things around. Meanwhile, undue reverence for the constitution prevents people from recognizing that a lot of the procedural aspects of the constitutional mechanism are clunky and absurd (see for example what happens if there's no majority in the electoral college, a lurking time-bomb that's bound to go off one of these days) and ought to be changed.