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> | REVISION IN PROGRESS |
| | Maintaining the Constitution Creed |
| | I. Introduction |
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< | To use Thurman Arnold’s terminology, the Constitution is a central creed in American society. It determines what is and is not politically acceptable. The creed is maintained through what Jerome Frank calls legal magic. Since there is no objective way to determine the Constitution’s stance on most issues, competing factions vie over how best to apply this magic. The internal division over how the magic should be used reaffirms the magic’s validity and allows the broader Constitution creed to function as a unifying force.
- I don't see any benefit to bringing Frank in here. What did it get you besides name-dropping?
II. The Constitution Creed
a. The Constitution is a Fundamental American Creed
The United States Constitution is a central creed in contemporary American society. Thurman Arnold writes, "In an age where Reason is God, constitutions or fundamental creeds are supposed to be the result of rational thought on the part of our forebears" (27). In such a society, the constitution serves to "furnish the limits beyond which controversy may not extend" (28). The American constitution has become embedded in our legal and political thought. Those who oppose our action in Iraq insist that it is an unconstitutional and illegal war. Pro-life advocates march against the Roe v. Wade decision because it is unconstitutional and wrongly decided. These people have likely neither read Roe v. Wade nor studied Presidential war powers, yet they strongly believe that the Constitution supports their position. Implicit in this belief is a conviction that the Constitution is the ultimate test of legitimacy for political action.
III. The Constitutionality Problem
a. Constitutionality Creates a Fundamental Problem
The political centrality of Constitutional law highlights a fundamental problem for our society. As Arnold describes, the constitution is considered to contain the wisdom of our forefathers (the creed’s heroes). This wisdom sets the boundaries of our laws. It is impermissible for any legal decision to violate the Constitution. Therefore, when we enact a new law our society must determine if it is constitutional. Unfortunately, the Constitution is generally silent on most modern issues. It does not say, for example, whether grenades are covered by the Second Amendment or whether women are guaranteed a right to abortion. We have no observable or empirical way of determining whether most contemporary laws are in keeping with the wisdom of our forefathers. This difficulty is akin to the fundamental problem Jerome Frank identifies in the criminal system (the inability to determine guilt from innocence). In both instances, we employ legal magic to draw a connection we are unable to form through empirically observable techniques.
b. The Supreme Court Provides a Magic Solution to This Problem
The legal magic society uses to determine constitutionality is vested in the Supreme Court. The Court invokes doctrine, precedent, and legal reasoning in much the same way that primitive man appealed to divine or elemental forces. None of these techniques are likely to reveal the Constitution’s position on an issue. It likely has no provision for most of the controversies that arise in 21st century America.
The Supreme Court employs a number of ritualistic elements to reinforce its magical stature and conceal the fundamental problem of constitutional ambiguity. The members are called “justices” so as to indicate that they represent a pure, unbiased form of constitutional magic. They wear flowing robes and meet in an ornate temple. Oral arguments begin with the ritualized chant of “Oyez, oyez, oyez.” These exercises serve to reinforce the power and austerity of the Court. It must be treated with the utmost deference, for it is the keeper of the magic that can determine what does and does not comport with our constitutional creed.
IV. The Sleight of Hand
a. Opposing Factions Seek the Creed’s Approval
Due to the public and political nature of Supreme Court decisions, “thinking men” (to use another of Arnold’s terms) are expected to evaluate the Court’s decision to determine whether the magic was applied correctly. In present-day America, there are two predominant types of thinking men: the thinking Democrat and the thinking Republican. These competing standards of reasonableness represent two opposing sub-creeds. They disagree on various specific political and social points, but both take a predominantly conservative approach to maintaining the status quo. Both seek the aid of constitutional magic to affirm that their sub-creed, rather than their opponents’, is in keeping with the all-important constitutional creed.
b. This Internal Conflict Reaffirms the Overall Creed |
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> | Thurman Arnold argues that constitutions are “fundamental creeds” in contemporary society (27). They “furnish the limits beyond which controversy may not extend” (28). The current political climate in the United States corroborates Arnold’s observation. The Constitution does indeed frame the boundaries of social and political controversies. This essay’s goal is to illustrate the mechanism through which the United States Constitution stabilizes political conflicts. By channeling the energy of competing factions into a competition for the mantle of “constitutionality,” the Constitution creed prevents criticism of the governmental structure itself. |
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< | The battle for constitutionality ultimately serves to increase the stability of American society by reaffirming the overall creed. In a given case, one side’s views will be validated and one’s will be dismissed. The victorious faction will insist that the magic was correctly applied. The losing side will insist that the decision was incorrect and unconstitutional. This faction will blame the demagogues on the Court who failed to apply the magic correctly. Both of these reactions take for granted that the proper application of magic would lead to a correct result, reaffirming the Supreme Court (at least in principal) as a magical mechanism for determining the validity of their agendas. |
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> | II. The Mantle of Constitutionality |
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< | The conflict between ideological factions is a sleight of hand that distracts the organization from examining the creed itself. There is no discussion about whether it makes sense to base our political decisions around a document that might never have been intended to apply to 21st century problems. These ideological skirmishes reaffirm the boundaries of the argument, and the Constitution creed remains unchallenged. |
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> | As Arnold observes, internal inconsistencies are inevitable in any organization. The beauty of the Constitution is that it can be read to support almost any position. It is therefore “elastic” enough to allow opposing viewpoints to make use of it simultaneously (Arnold 29). Divisions over whether individual issues are constitutional ultimately unify the participants by highlighting their shared belief in the Constitution itself. In this way, battles for the mantle of constitutionality use the population’s ideological inconsistencies to unify, rather than divide, the country. |
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< | V. Conclusion |
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> | In America, the main battleground for constitutional conflicts is the Supreme Court. The first step in most ideological conflicts is litigation; the two sides attempt to show the Court that their position is more consistent with the Constitution than their opponents. However, when a litigant loses before the Court, rather than accept that his approach is incompatible with the Constitution, he typically adopts the opinion that the Court was mistaken. The blame is placed on “activist” or “politically motivated” judges rather than on a flaw in the Constitution itself. |
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< | As Arnold observes, internal inconsistencies are inevitable in any organization. They are an essential part of its stability. The constitutionality issue is one example of the mechanism through which internal conflicts reinforce an organization’s broader identity. The strength of the constitutional creed, Arnold notes, is that it is “capable of being used in this way on both sides of any question,” which allows it to belong to the entire organization, despite internal differences (29). The struggle for constitutional magic reaffirms the value of that magic and stabilizes the creed. |
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> | The Constitution creed further stabilizes the country in the face of ideological conflicts by encouraging defeated litigants to channel their anger into the political process. Since the losing side believes that judicial incompetence or insincerity was the root of its failure, the next logical step is to make sure only “good” judges are appointed in the future. |
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> | The Constitution creed preserves the stability of the country as a whole by channeling ideological conflicts into competitions for the mantle of constitutionality. It does so first by providing concerned parties with the option of litigation. When this fails, ideological interests are then channeled into the political process. In this way, the creed re-directs energy from conflicts that are potentially divisive into a framework that reaffirms the value of the Constitution and of the existing governmental structure. There is no need for the involved parties to ever consider that the Constitution or governmental structure itself is the issue. |
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> | III. An Illustration: The Abortion Controversy |
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- The primary problem here, from my point of view, is that you do the easy work at too great length, including some unnecessary twisting of the sources to create a closer correspondence to your view of contemporary reality, without doing any of the hard work at all. Someone who has read Arnold is likely to see the obvious connection to constitutional law as a creed: Arnold hits the reader over the head with the point. To make something new out of the Arnoldian cliche requires actually reading some constitutional dialog to show in a more nuanced way how this "creed" holds some organization together. That's not apparent from the rather "red/blue" tone of the discussion here, which does not actually refer to any particular use of constitutional law to increase organizational coherence. Instead, you seem almost entirely devoted to not demonstrating that constitutional law successfully performs its function: your last sentence even misstates the purpose altogether.
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> | Perhaps the most visible example of a contemporary ideological conflict that has been channeled into the constitutional framework is the controversy surrounding Roe v. Wade and the constitutional right to an abortion. Abortion is an issue that, for the last several decades, has consistently elicited strong and often emotional opinions in Americans. Some opponents of legalized abortion equate it to murder and feel a strong moral duty to prevent it. Proponents of abortion rights, on the other hand, may view an abortion ban as gender discrimination. Because it stirs up such powerful emotions, abortion is an issue that could pose a serious threat to the country’s stability. Instead, the conflict has been channeled into the framework of the Constitution creed where it ultimately increases stability. |
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> | The two contrasting views on the constitutionality of abortion are exactly those that Arnold describes when illustrating how the Constitution can be used to support opposing sides of an issue. Supporters of Roe v. Wade agree with the majority in that case that a fundamental “right to privacy” exists that is expansive enough to cover abortion. This view is essentially the same as the adherence to the “spirit” of the Constitution Arnold describes. By contrast, abortion opponents insist that a strict textual reading of the Constitution (which of course contains no specific mention of abortion) is the only correct approach. |
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> | The evolution of the abortion controversy illustrates the mechanism through which ideological conflicts are channeled into the Constitution creed framework. First, abortion opponents attempted to re-litigate the issue. A series of challenges to abortion bans and restrictions have followed Roe (Webster, Casey, Sternberg, etc), and have had some success in limiting abortion rights. More visibly, the intense emotions surrounding this issue have been channeled into the political process. Pro-life and pro-choice groups concentrate most of their efforts in support of politicians they believe will appoint judges who support their position. |
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> | The abortion controversy could have presented a significant threat to national unity because of the strong and incompatible opinions it elicits. Since it has been subsumed into the Constitution creed, however, abortion has instead been a significant driver for increased civic participation. It has increased rather than decreased interest in the political process and support for the overall governmental structure of the United States. |
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> | IV. Conclusion |
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> | Thurman Arnold is correct in observing that the Constitution sets the boundaries of debate in American society. It is a vital and fundamental creed that protects the overall unity of society. The purpose of this analysis is to illustrate the mechanism through which the Constitution creed channels the inevitable internal inconsistencies in American culture into a forum that preserves, rather than threatens, social unity. The battle for the constitutional battle increases civic awareness and participation. It also prevents the result that would be truly damaging to the country: a rejection of government or constitutional legitimacy in its entirety. |
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