The Constitution of Fear
Schauer, Frederick, Constitutional Commentary
At various places along the Massachusetts Turnpike, a limited access toll road with a speed limit (in most places) of 65 miles per hour, there are signs cautioning drivers not to back up on the turnpike if they have missed their desired exit. These signs tell us much about Massachusetts drivers, since in most other states we could not imagine the need for such signs, precisely because we could scarcely imagine the possibility of drivers engaging in the behavior that Massachusetts sees a need to warn against.
As they tell us much about Massachusetts drivers, these signs also instruct us in constitutional jurisprudence. Like the signs on the Turnpike, constitutional provisions tend to presuppose the likelihood of the behavior they prohibit. Just as there are no signs on the Turnpike prohibiting throwing Molotov cock-tails at other vehicles, so too do we rarely see constitutional provisions addressed to theoretically unpleasant situations factually unlikely to occur in the world. And just as the signs on the Turnpike prohibit what the sign posters believe is actually likely to happen, so too do the drafters of constitutions go out of their way to address what they see as genuine threats.
Yet what is a genuine threat at one time may not be a genuine threat at another. Few students of American history fail to understand the perceived need, in 1791, for the Third Amendment, yet for the same reason it is unlikely that the Third Amendment would find its way into a constitution newly rewritten in 1995. That the Fourteenth Amendment makes no mention of gender discrimination is historically unsurprising, just as it is historically unsurprising that gender discrimination is explicitly prohibited in virtually every one of the new constitutions now emerging throughout the world.
From this perspective, the imperfections of the Constitution of the United States, in 1995, are likely to be imperfections of two types - guarding against problems that no longer exist, and not guarding against problems that exist now but did not exist (or were not then perceived as existing) at earlier times. As examples of the former, we have not only the Third Amendment, whose prohibition of a non-problem is relatively costless, but also the more costly efforts to guard against dangers now far less apparent, such as the Seventh Amendment right to trial by jury in civil cases and the Second Amendment right to keep and bear arms.(1) And as examples of the latter, we might quickly think of the lack of (textual) protection for the right to privacy or the right to be free from discrimination on account of, say, gender or sexual orientation. And many people believe (although I am not one of them) that the lack of term limits and the lack of a requirement of a balanced budget are perfect examples of the fact that the eighteenth century constitution did not anticipate all of the threats posed by the twenty-first century United States.
Yet the biggest question of guarding against what are now non-problems and not guarding against what are now problems is one not restricted to particular constitutional provisions. Rather, the eighteenth century constitution adopts a certain perspective about the state itself, not unlike the one that Massachusetts appears to adopt with respect to the people who are armed with automobiles. The eighteenth century constitution is not only a Lockean document, but in an important but less direct way a Hobbesian one, having as dim a view of concentrations of state power as Hobbes had about human nature in general. Whether it be the rejection of a parliamentary system in favor of strong checks and balances, the existence of numerous requirements of supermajorities (as, for example, with the trial of impeachments, amending the Constitution, and ratification of treaties), and the various side constraints of the Bill of Rights, an underlying theme of the Constitution has always been that the dangers of mistaken governmental action are more to be feared than the dangers of mistaken governmental inaction. …