Parlor Game

By Bobbitt, Philip | Constitutional Commentary, Summer 1995 | Go to article overview

Parlor Game


Bobbitt, Philip, Constitutional Commentary


The Constitution is not perfect. Indeed I don't know what 'perfection' is in a constitution, since it is an instrument for human hands and thus must bear within its possibilities all the potential for misuse that comes with the user. What I am sure of is that 'perfection' does not mean 'never needs to be amended,' since one important part of the Constitution is its provision for amendment (although I am inclined to believe that few of the amendments to the U.S. constitution were actually necessary.)

That said, a competition to find the "stupidest provision of the Constitution" is, to my mind, about the most vapid essay contest to come along since MTV listeners were asked to suggest names for a new litter of puppies owned by a heavy metal performer. As anyone who has been around dogs knows, their names have to do with their individual natures, and the relationships they have with each other, and with their masters. Naming them in the abstract is idle, a parlor game maybe, or perhaps appropriate to cats (whose character, if they have any, is opaque to humans.)

The Constitution functions as an organic whole. All the forms of argument--historical, textual, structural, ethical, prudential, doctrinal--entirely depend on this principle. One cannot begin to construe correctly the "commander-in-chief power" without bearing in mind the Congress's power to appropriate money for the armed forces; nor can one adequately construe in any concrete case, the Congress' power to declare war without squaring it with the Executive's power to deploy troops where he, and he alone, thinks best. Remove one part of the Constitution and you change another. In a mature democracy these relationships are sufficiently complicated and well-developed that any particular change is likely to have a number of unanticipated consequences, including, often enough, a result conflicting with the campaign by which the amendment was secured in the first place.

Designer politics is a seminar pastime, like political science generally, that is only interesting to the extent that the question of design is isolatable from the many overlapping functions of any political instrument. The strategy behind a Kantian veil of ignorance is not any lack of awareness of the complexity of moral decisions, but rather the recognition that moral decisions are so very complicated that only by isolating a feature in strict laboratory conditions can we arrive at a general thesis. But to the extent a constitutional question is isolatable, it is a little absurd. Suppose one of the contributors to this symposium should propose the provision of a Senate as the worst provision. The question 'Should we have a Senate' was once put to me as a 'constitutional question' by my friend Levinson, an organizer of this collection of papers. Behind a veil of ignorance, unknowing as to what person one might become or what position in society one might have and therefore unprejudiced to favor any particular group or station, one might well argue that popular majoritarianism is so manifestly an equitable principle that any departure from it is a mistake; or, similarly, behind this veil one might also argue that the protection of minority points of view can justify such a departure, the likelihood of being a part of some political minority being high in a pluralistic society. Then, I suppose, the focus shifts to empirical evidence, if such is really possible on these matters, to establish whether or not the Senate is in fact protective of the particular minorities with whom the questioner has sympathy.

But in the law we do not live behind such a veil, and to pretend otherwise--in order to get clarity and consistency in our principles--is to abdicate the actual responsibilities we do have. 'Should we have a Senate' is a question like then-Governor Reagan's question, "Are you better off now than you were four years ago," used to such powerful effect against President Carter. …

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