I don’t think that we’ve yet exhausted the topic of whether and why we should still treat the constitution like a constitution, so this post will be devoted to this past week’s ongoing exchange (from last week’s post) among Greg, one of our readers who goes by “Chuck,” and me. (Well, it’s that, and also the fact that Greg’s Philosopher Song Contest is too good to be followed by anything too distracting.)

If have If I’ve understood him correctly, Chuck has suggested that our constitution’s amendment process is not sufficient to address needed changes in government because, in his words, that process is “probably not the main driver of [constitutional] change over time.” But why should it be? It would seem that the burden to drive changes in the constitution is on the one who wants it to change, rather than on the constitution itself (i.e., where we find the constitutional amendment process in the first place). The constitution does, of course, need to provide a means of adapting to changing circumstances and needs of the community it serves. But for the constitution to be, itself, the driver of its own change, is as unnecessary as it is illogical.

Chuck also seems to agree with Seidman that our continued insistence on following the constitution as a legally binding document, again in Chuck’s words, “tends to distort political argument by at times privileging certain narrow and ultimately irrelevant or unanswerable or non outcome-determinative questions.” This, I think, might get to the heart of our disagreement, though I have to qualify that with the disclosure that I haven’t seen the interview he referenced, nor have I read Seidman’s book, so the substance of those “ultimately irrelevant,” etc., questions may matter here.

Still, I think that both Chuck and Seidman might like to see judges and juries freer to adjudicate according to what they think is best, rather than be bound to what Seidman referred to as a document written by “a group of white propertied men who have been dead for two centuries.” This is an understandable position, especially if those “non outcome-determinative questions” that we have to ask because of the constitution but which we would rather ignore end up getting in the way of a decision. Why, after all, should rules made up over two hundred years ago still bind decisions today? And if you’re inclined to say that they shouldn’t, well then yes – perhaps the constitution ought to include within itself some “driver of change” that prevent its rules and principles from ever getting in the way. I don’t know.

What I do know, though, is that going in that direction won’t get us anywhere closer to fairness or justice or desirable outcomes, etc. Why not? Not because it wouldn’t be more expedient or efficient to do away with the constitution; of course it would. But as Seidman himself subtly indicates, someone or something is going to be imposing standards and outlining parameters for legal justice. The question is whether we want that to be a constitution or a person/group of people. Recall that Seidman did express approval of “an elite body like the Supreme Court with the power to impose its views of political morality on the country”. He does not want the governance of a constitution; he wants the governance of imposed elite opinion. The Guardians, if you will.

Seidman was quite honest to choose the words “imposing…morality”; he might have said “providing guidelines” or “serving as arbitrators of final resort.” But he recognized that, without a constitution, this is exactly what such a body would do – it would impose its own sense of morality (besides, obviously, statutory law), because it would have nothing else from which to draw.

Is that good? For certain individuals, it may be advantageous from time to time when one’s justice of choice writes the opinion. But it is decidedly bad for a polity – it is the rule of men and not of law.

Ultimately, then, while the seemingly “ultimately irrelevant or unanswerable or non outcome-determinative questions” can seem cumbersome, but they might just be necessary to avoid, well, tyranny.