Basically a law professor, Louis Michael Siedman, raised some objections to the constitution that lawyers have known about for a while. Then Russ Roberts, who is a smart economist but doesn't really follow constitutional law, tried to single handily invent all the responses to those arguments. But there's no need to do that, because people have been thinking about this stuff for a while!
I don't remember all the ins and outs, but this is basically how I think the debate should go:
|Should this still be law?|
I. Constitutional problem
A. Siedman: sees two big difficulties with the constitution.
i.. The inter-temporal difficulty. Why should past people get to bind present people? The foundational generation wasn't smarter or wiser, it was, if anything smaller and less informed. Why is the vote of some dude who has been dead for 200 years more important than my vote?
ii.. The counter-majoritarian difficulty. Democracy is good, right? Why does the minority of white, propertied males in the late 1780's get to make the rules? Why do they override a current majority?
i. Pre-commitment is important for the part of the constitution that deals with PROCESS. What day you hold an election, how many congressmen there will be, how long they serve, etc are all questions that 1. don't really have super important right answers over the long term, and 2. in the here and now can have huge effects. If you say "you know what, senators can now serve for EIGHT years" you lock in the current democratic majority. But what effect that will have 200 years from now is harder to say. So, rather than put all that process stuff up for big huge political fights in the now, we just let people in the deep dark past pre-commit us to a certain political process.
ii. We don't want to expose to majoritarian outcomes certain RIGHTS. There are lots of reasons we should adopt a pre-commitment strategy with rights. For example, these could be things we are pretty confident people get right most of the time, but where there might be pressure in certain situations to get it wrong. We can just sort of airily commit to stuff like, "yeah, free speech is great!" in the here and now, effectively constraining us when we the pro-baby-rape nazi starts spouting his nonsense.
iii. The founders *were* smarter because they lived in a CONSTITUTIONAL MOMENT. At certain times the whole of the body public is moved to engage in and change our most basic laws. The 1780's. The 1860's. The 1930's. The people are thinking more clearly about this stuff in constitutional moments, and we should make some things only changeable when they can be changed with the sort of super majority you get during those special times.
iv. We don't trust democracy because we FEAR THE MOB. Or ARE FASCISTS. Or whatever. The basic structure of Siedman's constitutional problem is, "we all agree in majority rule, why depart from it?" The answer here is, "because I don't agree with majority rule! The majority sucks! We should pre-commit to my policies because my policies are right and the people will probably f*** it up." This was something Russ, a libertarian skeptical that government will stay limited in a purely-majoritarian state, was trying to articulate.
v. TRADITION. Laws work in large part because of cultural norms. This by necessity makes people in the past more important than modern people for governing how modern people behave (they set the norms!) and gives a reason we shouldn't blindly try to chart our own course in everything. Norms make society work, lets not start questioning and rehashing them just because they are in the constitution! This is something Siedman was very strongly fighting against.
vi. No one wants to rename the USS CONSTITUTION, the oldest commissioned warship in the world.
|The USS Non-Binding Norms Subject to Majoritarian Outcomes under sail|
II. The legal problem.
A. Siedman also says that the Supreme Court isn't really following the constitution and should fess up to it. He's less calling for us to ignore the constitution and more calling for us to be honest about ignoring the constitution. This isn't really a constitutional argument, it is a broader legal argument rooted in the INDETERMINACY DEBATE. To what extent is the law determinant? That is, to what extent do those little rules and cases on sheets of paper determine actual outcomes in courts and legislatures?
B. I don't really want to debate this because it's a huge question in the law, just sort of point out how inferior Siedman's argument is. Basically he says "here are some examples of people explicitly not following the constitution, even by their own lights. Therefor people should just admit that the constitution doesn't do anything important and no one follows it." But the mere fact that the constitution didn't bind some people in some cases doesn't prove it is all a sham. Obviously there is ground between "people always follow the constitution and it determines everything" and "people never give up their policy goals because they think they are unconstitutional and the constitution effectively does nothing." The Supreme court can be hypocrites only some of the time, and the rest of the time the constitution is guiding their decisions and doing real work. So a few specific examples of hypocrisy doesn't prove the constitution a sham.
C. As a side point, observe that if this is true and the constitution doesn't bind or limit us, the inter-temporal and counte-rmajoritarian difficulties go away.