Maintaining the Constitution Creed

-- By DanielButrymowicz - 12 Feb 2008

I. Introduction

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.

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

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.

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.

V. Conclusion

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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