You also say that the circumstances surrounding the framing of the Constitution argue for disobeying it. Can you explain?
When the framers went to Philadelphia in 1787, the call from the Congress was to amend the Articles of Confederation [the governing document adopted in 1783 upon the end of the Revolutionary War.] As soon as they got to Philadelphia, they immediately decided they were not going to follow their mandate and were not going to follow the Articles of Confederation. Instead, they threw out the Articles, and they wrote an entirely new document, in violation of the terms of the Articles. The Constitution itself was pretty clearly an illegal document—it was itself unconstitutional. I’m not saying that we should go back to the Articles of Confederation, but it is more than a little ironic that we are so insistent on obeying the Constitution when the people who wrote the Constitution itself were ready to disobey the constitution that was in effect at the time.
Why now? Is this the historical moment for this idea?
We’re at a moment when people are more willing to really think seriously about constitutional obligation. There’s an unstable situation right now in the United States. On the one hand, people express this deep commitment to obeying the Constitution. And yet on the other hand, both conservatives and liberals are using the Constitution for political purposes. We have this amazing coincidence that on the Supreme Court, justices appointed by Democrats read the Constitution as if it were written by the Democratic platform committee, and justices appointed by Republican presidents read the Constitution as if it were written by the Republican platform committee. And then each side accuses the other of constitutional violation.
How would our government function without the Constitution?
If we didn’t have a constitution, that would not mean that we didn’t have longstanding institutions, and settled ways of dealing with things. Not having a constitution does not mean not having a Senate and a House, presidents, states, even a Supreme Court. All of those things we’ve had for a very long time, and I don’t think people would want that to change.
Aren’t the roles of the President, the Senate and the House prescribed in the Constitution? How would the separation of powers be detailed? Are you arguing that the process should just be self-policing, without any underlying rules or regulations?
It’s not at all clear that as things stand now constitutional obedience is what is enforcing separation of powers. Many separation of powers questions—especially with regard to foreign affairs—are not judicially enforceable. What prevents one branch or another from overreaching—to the extent that they haven’t overreached—is political forces, not constitutional obedience. So, for example, when the Reagan Administration unilaterally armed the Contras, Congress stopped the program not by going to court to enforce the Constitution, but by holding public hearings, attaching riders to appropriation bills, etc. In any event, it is very unlikely that our current divisions of power would be changed dramatically and quickly if there were no constitutional obligation. We have long traditions in this country and are used to certain ways of doing things, and people have vested interests in the status quo. These forces would constrain sudden change in much the way that they do in New Zealand, the United Kingdom and Israel, where the structure of government is not enforced by a constitutional document, but nonetheless is relatively stable.
How would we determine which laws or government actions are appropriate or inappropriate? Would we still have judicial review?
I certainly understand the argument that we don’t want a pure democracy, and there is something to be said for an elite body that is separated from day-to-day politics, pronouncing on questions of political morality. But if we look at the most important Supreme Court decisions over the last century or so—things like Brown v. Board of Education, Roe v. Wade and Lawrence v. Texas, which established the right to gay intimacy—those are not, in any meaningful sense, tethered to the constitution. They are judgments by the justices about our traditions, about prior precedent, about their own sense of political justice. That might be a good thing, it might be a bad thing—I think that is something for the American people to decide. There is one thing that would change, and that is people would not be able to stop an argument by saying, “But that is unconstitutional.”