Jeremy Waldron, on the purpose of constitutional law

February 28

I just read a characteristically excellent piece by Professor Jeremy Waldron, which is a book review of Mike Seidman’s recent book on constitutional disobedience, but it is easy to read as a standalone piece. (My post last week featured Waldron’s argument against judicial review, and I pointed out that being against judicial review is not the same thing as being against constitutional interpretation. This is Waldron’s defense of constitutions.)

It’s too hard for me to even try to excerpt the core of the piece, so I will just offer a few passages I particularly liked.

Here is Waldron on the American constitutional faith:

Certainly most of the American scholars I know — of every political stripe — seem to believe passionately that the political agenda they associate with the Constitution really is what the Constitution demands. And they think this even though they know their ideological opponents believe the same about a completely different agenda. As observers we might be skeptical about whether the Constitution is really in the driving seat. But it may still appear to the participants that it is. And that will limit what they can say and what they can propose.

On the connection between statutory authority and constitutional authority:

[I]n chapter five of his book, he appears to take the position that the arguments he has developed about constitutional obligation might apply mutatis mutandis to well-established ordinary statutes as well. He recognizes this potential objection to his proposed approach, but rejects its force, stating, “I would . . . not be terribly concerned if the decay of constitutional obedience led to a more general skepticism about an obligation to obey the law” (p. 119). For example, people cite the Judiciary Act of 1789, and they contest the meaning of the Alien Tort Statute, and I think he would regard this bickering as counterproductive and distracting from the real issues of the day just as he regards bickering over the Constitution. Some of his argument is simply at odds with the general authoritarianism that law as such involves, and he recognizes this. Seidman is really a sort of “philosophical anarchis[t]” (p. 119). He asks why we should ever deviate from our own best judgment just because of what the text of some law requires. Now, he pulls back a little bit from this, saying that “[s]tates cannot function without laws, but they can function without constitutions” (p. 122). But his confusion about written constitutions leaves it unclear whether he thinks the UK can function without its constitutional statutes or New Zealand without the Constitution Act of 1986.

And on new constitutions in new legal regimes:

How does Seidman think Poles, South Africans, and East Timorese should respond to these demands? I cannot believe that he thinks these citizens should systematically ignore their constitutional law or take every opportunity to subvert it. So what is the difference between their constitutional obligations and ours? It must come back to this issue of time: a constitution may be a good thing in the establishment of a polity, but not if it lasts too long. But even if we set them up so they are amendable, constitutions are necessarily designed to endure, designed indeed to outlast their framers and the politics that elicited them. And there is the paradox. If they do endure, they will start to look increasingly obsolete and we will wonder (subversively or rebelliously) why we are being bound by eighteenth-century formulations. Equally, though, if they do endure, they will create conditions of political stability that we seem to be able to take for granted: we can take risks with our Constitution now, because it has already successfully conditioned the reflexes with which we will confront such risks. But if we put forward our counsel of constitutional disobedience in circumstances that are less secure than this, then we may well be doing our audience a grave disservice. Constitutions need to establish themselves; they need obligation and they need authority. This is particularly true for new constitutions.

Seidman also has a response.

Will Baude is an assistant professor at the University of Chicago Law School, where he teaches constitutional law and federal courts. His recent articles include Rethinking the Federal Eminent Domain Power, (Yale Law Journal, 2013), and Beyond DOMA: State Choice of Law in Federal Statutes, (Stanford Law Review, 2012).
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