The Constitution and Legal Change: How Constitutional Romanticism hurts Progress and Debate 

By Sam Murray

The American Constitution is and remains one of the great legal achievements of human history. It paved the way for the conception of constitutionally entrenched rights, and the idea of system of government being embodied in a universally accessible document. However, in American public debate over controversial public policy issues, discourse becomes bogged down not in normative issues of what is best for the American people but rather “Is this constitutional?”

In issues like gun control, Obamacare, or anti-terrorism measures, too often opposition to such positions is not based in rational or logical arguments, carefully balancing the projected benefits to society and the costs to individuals, but rather in a knee jerk claim to unconstitutionality. True, constitutionality is important for legislators and jurists; there is no point having a constitution if the judicial branch is unwilling to knock down particular legislative endeavours if they breach it; but it is in the judicial branch that such debates should take place. The first response to a particularly rash anti-terrorism measure should not be “this is probably unconstitutional”, because if it is, the courts will decide that. The first response should be; does the benefit to the safety of the American community outweigh the invasion of individual rights. That is how debate results in the best policy outcomes; by assessing and evaluating the way that we as a society apply principles to reality.

In American public discourse, there is too much willingness to uncritically accept the legal rights enshrined within the Constitution as having inherent worth by virtue of belonging to the document, as opposed to having inherent (or instrumental) value in and of themselves. Discourse about the value of free speech becomes so much more valuable when people discuss why free speech is in and of itself a good thing for a democratic, liberal society rather than just because a two hundred year old document says so.

Once again, such a document is of critical legal importance, but the polity should at times be willing to hazard the opportunity to change it to reflect normative reasons. Too often the debate about gun control is limited by what normative actions can and can’t be allowed by the Constitution. Never is the option raised of changing the constitution to reflect normative actions. That’s not an argument in favour of gun control (I personally oppose many forms of it, constitutional and unconstitutional), but rather that the unconstitutionality of a measure should never be the main reason for it not to be adopted. If there are tangible reasons which explain why a measure shouldn’t be adopted, then those should take precedence. And if there are no tangible reasons why the measure shouldn’t be adopted beyond its unconstitutionality then what value does the constitution in its current form have?

Should the constitutional be difficult to change? Absolutely, otherwise it begins to serve no extra-statutory purpose. But polities must be willing to at least consider the willingness to change it, if only to raise the level of public discourse beyond poorly conceived arguments by political anchors over the intricacies of American constitutional law at the expense of more tangible arguments that have meaning for everyday Americans. The Roman statesman, the last Republican before the Emperors, famously claimed that the “welfare of the people is the ultimate law”. The Constitution should always be followed, but legislators should always be willing to change the rules of the game, and be willing to discuss why in principled and practical terms the reasons for doing so.