Vol. 25 No. 5 (May 2015) pp. 71-73
ON CONSTITUTIONAL DISOBEDIENCE by Louis Michael Seidman. New York: Oxford University Press. 2012. 157pp. ISBN: 0199898278
Reviewed by Kenneth Ward, Department of Political Science, Texas State University. Email: KW12@txstate.edu
ON CONSTITUTIONAL DISOBEDIENCE is a welcome addition to recent literature that considers the dysfunction in contemporary American politics in light of the flaws in its foundations. But while other authors have attributed dysfunction to flaws in the American Constitution, Seidman argues that political discourse is inflamed and distorted because we treat the Constitution as law. Rather than discuss the merits of competing policy proposals, people seek to impose their preferences as higher law and disparage their adversaries’ proposals for violating such law (p. 9).
More provocatively, Seidman questions the wisdom of allowing the past to govern the present. He states: “The test for constitutional obligation arises when one thinks that, all-things-considered, the right thing to do is X, but the Constitution tells us to do not-X…but who in their right mind would do this?” (p. 7).
Seidman, thus, is not interested in constitutional reforms and, instead, challenges the notion of a constitution understood as higher law. Indeed, he endorses a view of living constitutionalism in which the Constitution remains a symbol of national unity stating abstract goals that everyone can endorse rather than a legal document commanding specific outcomes. He envisions a constitutional politics that mitigates law’s jurispathic tendencies (Cover 1983).
Seidman’s argument has two parts. The first part rejects a number of justifications for constitutional obligation that claim significant continuity between ourselves and the people who ratified the Constitution. We would have reason to defer to constitutional authority, for example, if the Constitution’s supermajoritarian processes yielded better approximations of our will than the various majoritarian processes that govern us, putatively, in the name of the Constitution, or if its processes yielded superior deliberation about justice, or if the integrity of our political community depended on our accepting earlier commitments that the Constitution reflects.
Seidman, however, is skeptical about both the representativeness and deliberative quality of constitutional processes. Moreover, he argues our deliberations about justice are already informed by our understanding of constitutional law, regardless of whether we feel obligated to defer to the values entrenched by the Constitution. When we consider proposals to restrict abortion, for example, we do so with an understanding of past commitments to liberty, equality and the protection of life and assign considerable weight to these commitments to the extent that we view earlier generations as representative of us or as superior deliberators about justice. [*71]
What is more, Seidman challenges the analogy that underlies these justifications, the notion that a political community is like a person who respects past commitments in order to advance his or her ends. The analogy fails because a political community’s continuity does not depend on it resolving disagreements among its members views of justice. It can function with stability even when its members hold incommensurable views. Seidman, by contrast, believes “constitutionalism is a site for struggle and contestation rather than settlement” (p. 60). In his view, it is our disagreements about justice that define us as a people rather than settlements about particular disputes.
As a consequence, Seidman emphasizes the authoritarian implications of taking ephemeral settlements about justice and using constitutional law to extend them through time. He suggests that we continue to contest questions of justice even after they are settled, including our disagreements about the processes we use to settle disagreements about justice: “On this view the defining characteristic of our political order is precisely that the political order is never finally defined. . . constitutional disobedience is not only permissible, it is built into the fabric of our country” (p. 61). Constitutionalism, thus, becomes a problem to the extent a foundational law preempts more majoritarian processes that might arbitrate our disagreements about justice without settling them or at least settle them with less finality.
The second part of Seidman’s argument addresses concerns that might follow were we to uncouple constitutionalism from the view of the Constitution as law. He alleviates concerns that our feeling obligated to obey the Constitution somehow prevents either the onset of anarchy on one extreme or majoritarian tyranny on the other. He characterizes constitutional politics as one of disobedience and contends that our disregard for constitutional obligation has not wrought chaos. “As things stand now, government officials, high and low, routinely violate the Constitution, and no one does anything about it” (pp. 63-64). And while it is debatable whether constitutional disobedience has destroyed liberty, we can agree that constitutional obedience has not been a condition for its preservation.
Both arguments extend Seidman’s view of constitutional politics as a forum for disagreement. He uses disagreements about important constitutional provisions to infer that departing from constitutional commands does not create chaos. Given the extent of our disagreements, most everyone should believe that important issues have been decided contrary to a correct reading of the Constitution. Similarly, we know that the Constitution has been interpreted to advance views of liberty divergent enough that everyone should be able to find some views to reject.
More importantly, citizens’ response to these disagreements speaks to a quality of character Seidman believes essential to both freedom and stability. He contends that respect for liberty depends on citizens of the here and now having a commitment to liberty rather than merely deferring to past judgments of the community. It entails an embrace of the unpredictable and uncontrollable that is at odds with the very notion that we can make people respect liberties by [*72] entrenching them in higher law. And a concern for citizens’ character also seems to underlie Seidman’s claim that we could have stability without higher law were we to allow democratic majorities to resolve disagreements about justice for themselves rather than defer to past settlements of these disagreements. He suggests that stability comes from people willing to defer to recognized processes that resolve disputes while continuing to contest the underlying disagreement about justice. We, in other words, would have legal order without legal authority, if liberty loving citizens could respect the outcomes of customary processes without assigning any deeper significance to those outcomes.
There is much to like in Seidman’s vision of constitutional politics as one in which people take disagreements about justice seriously rather than seek to impose self-evident foundational rules that just so happen to settle these disagreements in accord with their political preferences. And there is something liberating in the corresponding view of democratic politics in which particular issues are resolved in the short term without the pretense that deeper disagreements about justice have somehow already been settled and entrenched as constitutional law.
Indeed, I favor a conception of constitutional politics as a forum for managing ongoing disagreements about justice as opposed to one in which we settle disagreements with anything like finality. In this view, disagreement is treated as a chronic condition rather than a disease in need of a cure (Ward 2011).
Seidman, however, does not adequately address the role legal authority might play in managing chronic disagreements about justice. He recognizes that there are questions of procedural justice, questions where having an answer is more important than the particular answer, like the age at which a person qualifies to run for President. He contends that questions such as these can be settled by cultural norms without the need for constitutional obligation (pp. 24-25). But he does not consider whether some procedures are systematically better at managing disagreements about justice and whether legal obligation might be necessary for sustaining such procedures.
Proponents of the rule of law, for example, argue that decisions made by formal legal processes advance important values. They have claimed that fairness and stability follow when a government is bound by fixed and antecedent rules. And some have claimed that a government promotes stability, notwithstanding ongoing disagreements about justice, by justifying actions in terms people can grasp even though those terms are contested. If so, higher law constitutionalism, if not the American conception of constitutionalism, would advance Seidman’s own vision of democratic politics.
Seidman’s book, then, points constitutional theory towards interesting and essential questions. It is provocative, well written and, perhaps most importantly, accessible. [*73]
Cover, Robert. 1983. “The Supreme Court, 1982 Term -- Foreword: Nomos and Narrative.” HARVARD LAW REVIEW 97: 4-68.
Ward, Kenneth. 2011. “Institutional Virtues and Constitutional Theory: Bracketing Disagreements About Justice.” MISSISSIPPI COLLEGE LAW REVIEW 30: 33-34.
© Copyright 2015 by the author, Kenneth Ward.