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A Critique of Contemporary Constitutionalism

Author(s): Glenn N. SchramSource: Comparative Politics, Vol. 11, No. 4 (Jul., 1979), pp. 483-487Published by: Ph.D. Program in Political Science of the City University of New YorkStable URL: http://www.jstor.org/stable/421872

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Commentand OpinionA Critique of ContemporaryConstitutionalism

GlennN. SchramMarquette University

The circumstances f constitutionalism ave become somewhatstraitenedf thearticleonthesubjectby HarveyWheeler ntherecentlypublishedHandbookofPoliticalScience1andRaoulBerger'shighly publicizedGovernmentbyJudici-ary2 can be consideredrepresentativeof currentthought in the field. Thisassessment will be supported,andan explanationgiven of why thereis causefor concern, in the following analysisof the Wheeler article and the Bergerbook.As one wouldexpect, Wheelersummarizes ome widelyknownmaterialonconstitutionalism.He also incorporatesnto his articleconsiderable heorizingon thehistoryandpsychologyof religionandphilosophy;andheelaboratesonCalvin's Case, decided in 1608 by the English ExchequerChamber,and itssignificancefor subsequentAnglo-Americanconstitutionalhistory. No issueabout these matterswill be raised here. It should be pointedout thatthenamesof at least four scholars (BenjaminN. Cardozo, FriedrichA. Hayek, ErnstKantorowicz,andFerdinandTonnies)aremisspelled,and that hemeaningsofTonnies' conceptsof GemeinschaftandGesellschaftare reversed(the formerrenderedas society, the latter as community).The majorconcern, however,will be with Wheeler's account of the natureof constitutionalismand ofconstitutionalgovernment.Constitutionalism,Wheeler says, purports o direct law and governmenttowardthe realizationof the commongood "throughthe collective effortsofordinarypeople, even thoughas individualsthey might act only from selfishandprivatemotives"";it "attempts o elicit, protect,andmagnifytheapplica-

0010-4159/79/0715-0006$02. 50/1? 1979 The City University of New York 483

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ComparativePolitics July 1979tionof democratic ivic wisdom to theproblemsof government."4Butthen hesuggests' that these notions of democracy and of the balance of interestsdistinguishmodernfrompremodern onstitutionalism,eaving openthe ques-tionof whatconstitutionalisms in general.Itapparentlys not the belief in thedesirabilityof governmenteffectively limitedby preestablished ules, forthenit would resembleconstitutionalismas conceivedof by CharlesH. McIlwain,and Wheeler seems not to sharethis conception.Accordingto McIlwain, "in all its successivephases, constitutionalismhasone essential quality: it is a legal limitation on government."" McIlwainunderstandsaw to includecustom, whether embodied in legislationor not,7and, if one keeps in mind his broad definition of law, one may say that heconceives of constitutionalgovernmentas the rule of law. But constitutionalgovernmentas the ruleof law Wheelerconsidersto be a liberalor a neoliberalnotion,8as if the belief in it were uniqueto the periodfrom the seventeenthcenturyto the present.In fact, the rule of law in McIlwain's sense has beenespoused in England since the sealing of Magna Carta,and all ancient andmedieval regimes which are usually consideredconstitutional were charac-terized by it, even though the term constitution has come to be specificallyidentified with it only in moderntimes.Wheeler maintains that "ancient constitutionalism dealt with an all-embracingstate."9 Certainlyit is true that in ancient Athens the individualfound fulfillment n thecommunity,whichcouldplacegreatdemandson him;but it also is true that governmental nstitutionswere effectively limited bycustom. Perhaps f Wheeler had been clearerabout ancientconstitutionalism,and had been less concerned to identify McIlwain's definition of con-stitutionalismwithneoliberalism,0o ewould haveadopted hatdefinition.Notonly has it the advantageof reflectingthe common denominatorof regimesusually considered constitutional, it has the added merit of referringto aphenomenonof greatvalue, as will be pointedout below.Britishconstitutionalism, n particular,Wheeler thinksto have been "littlemore than the institutionalization f civil disobedience.""1This statement spuzzling,forcivil disobedience nvolvesdisregard or the law (to be sure,in aneffort to affect public policy and not for immediatepersonal gain), and theinstitutionalization f it would be not constitutionalgovernment,but a crimewave. The aimof constitutionalism s theobedience,notthe infraction,of rules(or so it was thoughtfor a very long time).The fact is that Wheeler is disillusioned about constitutionaldemocracy,even though,his protestationso thecontrarynotwithstanding,12heAmericansystemfunctionedratherwell intheWatergate risis:it waspossibleto forcetheculprits romoffice withoutrecourse o civil disobedienceorrevolution.All hecan say for constitutionaldemocracy is "that complex, highly articulatedculturesmustelicit therationalandcreativeparticipation ndcoordinationof a484

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Glenn N. Schramlargenumberof peoplein order o functionwell," andthat "the most efficientmodemdevice forachievingthishasbeensome formof constitutionalism."13

Wheeler does notexplain, however,whatit is fora societyto functionwell,what therelation s betweenpopularparticipation ndcoordination,on the onehand, and the well-functioningof society, on the other, or how, precisely,constitutionalregimes (by which he means constitutionaldemocracies)en-hance this participationand coordination,particularlywhen there are otheralternativesbesides "the dictatorialapplicationof police terror" and "themaintenanceof aggressive militarism."14 One thinks also of old-fashionedauthoritarianism itha modicumof popularpoliticalinvolvement at thegrass-rootslevel, and one wonderswhy, inWheeler'sjudgment,theUnitedStatesispreferable o Yugoslavia.In fact, constitutionalgovernment,in the sense of governmenteffectivelylimitedby preestablished ules, whether he governmentbe democraticor not,is somethingof immensevalue, andwas so interpretedong beforethe emer-gence of "complex, highly articulated ultures." Thatthe governmentshouldnot proceed againsta personexcept in accord with preestablished andgener-ally known) rules is one of the oldest principlesof Anglo-Americanpolitics,andit expressesa perfectly legitimatehumanwish: to know whereone standsvis-a-vis thegovernment, o be able to planone's activities in theknowledgeofwhat will, and of what will not, cause difficulties with the authorities.If,moreover, governmentalofficials are boundby preexistentrules not of theirmaking, as they tend to be, if by preexistentrulesthey are boundat all, thentheirbeing so limited has the furtheradvantageof reducingthe likelihoodthatpersonalornarrowlypartisan onsiderationswill affecttheiractivities;thusthecause of justice is served. These arguments or constitutionalgovernmentarehardlynew, and it is unfortunate hatthey have to be recallednow, becauseWheeler, though insistent on the need to maintain the "myth" of con-stitutionalism,15 chooses not to include them in the version of it which headvances, and thereby contributes to the very decline in constitutionalismwhich he deplores.Nor is thecause of constitutionalism elpedbyBerger,whocomesveryclosetocharging heUnited StatesSupremeCourtwithusurpation16or notadheringto what, in thelightof exhaustiveresearch,he considersto have beenthe intentof themajorityof authorsof theFourteenthAmendment.It is quitepossiblethathe thusdetractsfrom the legitimacyof the Courtand, consequently,from itsability to curb undoubtedusurpationsby other governmentalagencies. Hehimself asks, "How long canpublicrespectfor theCourt,on which its powerultimatelydepends,surviveif thepeoplebecome awarethatthe tribunalwhichcondemnsthe acts of othersas unconstitutionals itself actingunconstitution-ally?" 17At issue againis thenatureof constitutionalgovernment,and it is plainthat

485

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ComparativePolitics July 1979Berger' notion of it wouldrequirea courtalwaysto respecttheoriginal ntent,if it is known, behind whateverprovisionof a constitutionaldocumentit isapplying,even if a word orphrasesubsequentlyhasacquiredawidely acceptedmeaningdifferent rom the framers'. Forit is preciselyundercircumstancesofthis kindthat heSupremeCourt imeandagainhasignored heapparentwishesof the authorsof the FourteenthAmendment, evoking Berger's charge ofunconstitutionalbehavior.18

Bergerfails to explain why, undersuchcircumstances,the meaningof theauthorsought to prevail, other thanto cite a traditionalcanon of legislativeinterpretationwhich states, in blanket erms,that the framers' ntentshouldberespectedwhen it is known;he manifestlydoes not believe the authorsof theFourteenthAmendmentto have been men of superiorwisdom. Nor does heconsider the possibility that constitutionalitymay include the adherencebyvariousgovernmentalagencies, includingcourts boundat least to some extentby stare decisis, to principlesinherent njudicial interpretationsf a constitu-tional document.If he considered hispossibility,hisjudgmentof the SupremeCourt would be less severe.In theopinionof thepresentwriter, udges lay themselvesopentochargesofarbitrariness,ncompetence,andsinfulpridewhen, as theyrecentlyhave doneinAmerica,they beginto setpercentagesandquotas,"9 uttoconcedethispointis not necessarilyto insist thatAmerican udges be boundto the intentof theauthorsof the Constitutionwheneverit is known. We requireneither a newtheoryof constitutionalism,as Wheeler asserts,20 nor a new fundamentalismwith respect to the Constitution, as Berger thinks; and we should permitdisappointment ndanxietyneither o obscurewhat is worthmaintainingnourtraditionnor to motivateconstitutionalhermeneutics ll-designed to preservethat tradition.

NOTES1. HarveyWheeler, "Constitutionalism,"in Fred I. Greensteinand Nelson W. Polsby, eds.HandbookofPolitical Science, vol. V:Governmentalnstitutions ndProcesses (Reading Mass.],1975).2. Raoul Berger,GovernmentbyJudiciary (Cambridge Mass.], 1977).3. Wheeler, p. 1.4. Ibid., p. 5.5. Ibid., pp. 5-6, 75.6. CharlesH. McIlwain,Constitutionalism:Ancient and Modern (rev. ed.) (Ithaca,1947), p.

21.7. Ibid.8. Wheeler, pp. 25, 31, 33.9. Ibid., p. 3.10. See, in particular, bid., p. 33.11. Ibid., p. 6; see also pp. 7 and47-48.

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Glenn N. Schram12. Ibid., pp. 6, 37.13. Ibid., p. 85.14. Ibid.15. Ibid., pp. 86-87.16. Berger, p. 408.17. Ibid., p. 410.18. Berger ails topointouthow, ina seriesof decisionsbeginningwithMissouriex rel. Gainesv Canada (1938), the SupremeCourt so departedfrom the apparentoriginal intentbehindtheequal-protectionclause as to lead almost ineluctablyto its decision against segregated publicschools inBrown v. Boardof Education (1954), which he criticizesfor ignoringthe will of theframers.Thoughhe addresseshimself to theambiguityacquiredovertheyearsby thedue-processclause, he says that t wastheCourt'sown doing(ibid., pp. 167-68, 258), butwhythisfact shouldbeconsideredgermanebyjudgesfacedwith thedilemmaof interpretingheclausetodayis unclearin the absence of a theoryof exegesis.19. Cf., ibid., p. 413.20. Wheeler, pp. 77-78.

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