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DO CONSTITUTIONS HAVE A POINT? REFLECTIONS ON “PARCHMENT BARRIERS” AND PREAMBLES

Published online by Cambridge University Press:  30 November 2010

Sanford Levinson
Affiliation:
Law, University of Texas at Austin

Abstract

Constitutions serve (at least) two central functions. One is to settle certain controversies by offering a definitive solution, such as adoption of a presidential or parliamentary system, a one-house or two-house legislature, or guaranteeing a certain term of years to judicial appointees. Not surprisingly, there is rarely litigation about such solutions, even if one finds them troublesome; instead, one can suggest amending the constitution or even replacing it. A second function is precisely to engender litigation by addressing certain issues—very often involving rights—that don't lend themselves to the kinds of definitive textual solutions similar to those involving structural features of a polity. If the first constitution can be described as a “constitution of settlement,” this second constitution is a “constitution of legal conversation” inasmuch as lawyers constantly dispute the meanings to be assigned such terms as “equal protection,” “human dignity,” and the like. But how does this apply to the preambles commonly, though not always, found in constitutions? Preambles often claim to evoke what binds together the society for whom the constitution is being drafted—religion, ethnicity, histories, languages, or commitments to norms, including universalistic ones. But to what extent are such claims of unity attempts by political elites to marginalize sectors of the society that do not in fact share the attributes in question? In any event, there is nothing “innocent” about constitutional preambles, and they are well worth taking seriously whether or not they are useful to lawyers engaged in litigation.

Type
Research Article
Copyright
Copyright © Social Philosophy and Policy Foundation 2011

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References

1 Adams, Willi Paul, The First American Constitutions: Republican Ideology and the Making of the State Constitutions in the Revolutionary Era (Lanham, MD: Rowman and Littlefield, 2001)Google Scholar.

2 See , Oscar and Handlin, Mary, eds., The Popular Sources of Political Authority: Documents on the Massachusetts Constitution of 1780 (Cambridge, MA: Harvard University Press, 1966)Google Scholar. See generally Dinan, John, The American State Constitutional Tradition (Lawrence: University of Kansas Press, 2006)Google Scholar, for a convincing argument that constitutional theorists have much to learn from the study of the many remarkably different American state constitutions.

3 Levinson, Sanford, Our Undemocratic Constitution: Where the Constitution Goes Wrong (and How We the People Can Correct It) (New York: Oxford University Press, 2008)Google Scholar.

4 U.S. Constitution, Amend. XX, section I: “The terms of the President and Vice President shall end at noon on the 20th day of January … and the terms of their successors shall then begin.” The reason a constitutional amendment was necessary, incidentally, was not because the original Constitution indicated a different date. No date at all was specified; March 4 became Inauguration Day because of an early act of Congress. But because the Constitution did specify that the president would have a four-year term, once the statute was passed and became operative, it became the equivalent of a hard-wired constitutional text, inasmuch as any change, by definition, would either reduce or lengthen the fixed four-year term. Thus, as a result of the Twentieth Amendment, ratified in 1933, Franklin D. Roosevelt's first term of office was in fact only three years and ten-and-a-half months, given that he was initially inaugurated on March 4, 1933, under the old regime, and then inaugurated for the second time on January 20, 1937.

5 Americans do not vote “directly” for presidential candidates, but, rather, vote on a state-by-state basis for “electors” committed to the given candidates, who will then, as a result of arcane procedures set out in the Twelfth Amendment and subsequent legislation, meet to cast their votes for their particular choices. It is this feature of the Constitution that explains, for example, why the person who comes in second in the national popular vote can nonetheless win the electoral vote, as happened notably in 2000.

6 Olmstead v. U.S., 277 U.S. 438, 478 (1928)Google Scholar (Brandeis, J., dissenting).

7 Whether ironically or not, given the failure of the United States Constitution to include any clear protections of such rights, at least some credit for the movement toward such guarantees in the rest of the world goes to President Franklin D. Roosevelt. His 1944 State of the Union message to Congress called for a “new Bill of Rights,” on the basis of his belief that “individual freedom cannot exist without economic security and independence” and that it is a vital role of government to guarantee such security by recognizing rights “to a useful and remunerative job in the industries or shops or farms or mines of the nation; … to earn enough to provide adequate food and clothing and recreation; … to a decent home; … to adequate medical care and the opportunity to achieve and enjoy good health; … [and] to adequate protection from the economic fears of old age, sickness, accident, and unemployment.” Although one might believe that a free-market system would often prove adequate to provide such “rights,” it is clear that for Roosevelt and his followers, government would have both the authority and the duty to step in and fund such necessarily redistributive programs, should market solutions be perceived as inadequate.

8 Madison, James, Federalist No. 48, in Kurland, Philip and Lerner, Ralph, eds., The Founder's Constitution (Chicago: University of Chicago Press, 1987), 1, chap. 10, doc. 15, available online at http://press-pubs.uchicago.edu/founders/documents/v1ch10s15.htmlGoogle Scholar.

9 The standard citation is surely Rosenberg, Gerald, The Hollow Hope: Can Courts Bring about Social Change?, 2d ed. (Chicago: University of Chicago Press, 2008)CrossRefGoogle Scholar.

10 See Levinson, Sanford, “Our Schizoid Approach to the United States Constitution: Competing Narratives of Constitutional Dynamism and Stasis,” Indiana Law Review 84 (2009): 1337Google Scholar.

11 In a forthcoming essay, Liav Orgad notes that a “non-representative sample of fifty democratic countries” revealed that thirty-seven of them have preambles and only thirteen do not—and five of the latter have “introductory articles” that may be said to function as preambles. See Orgad, , “The Preamble in Constitutional Interpretation,” forthcoming inI-CON (2011), ms. p. 3 n. 4Google Scholar. Similarly, a more comprehensive survey of 578 of the 801 total constitutions written from 1789 to 2006 indicated that 79 percent of them included preambles. Indeed, not only are more-recent constitutions (those written since 1950) more likely to include preambles, but they are also likely to be considerably longer than were earlier preambles. See Elkins, Zachary and Ginsburg, Tom, “The Comparative Constitutions Project” (2010), available online at http://comparativeconstitutionsproject.orgGoogle Scholar.

12 Indeed, the preamble can even be put to music. See (or listen to) http://www.youtube.com/watch?v=aNb9AoY5XXE.

13 Chisholm v. Georgia, 2 U.S. 419, 465 (1793)Google Scholar.

14 See Handler, Milton, Leiter, Brian, and Handler, Carole E., “A Reconsideration of the Relevance and Materiality of the Preamble in Constitutional Interpretation,” Cardozo Law Review 12 (1990–1991): 117, 120–21 n. 14Google Scholar (reporting a total of only twenty-four citations, over 80 percent of which occurred in dissenting opinions).

15 United States v. Verdugo-Urquidez, 494 U.S. 259, 265 (1990)Google Scholar.

16 Jacobson v. Massachusetts, 197 U.S. 111, 22 (1905)Google Scholar.

17 Buck v. Bell, 274 U.S. 200, 208 (1927)Google Scholar.

18 Memorandum from Edmund Randolph to George Washington, quoted in Brest, Paul et al. , Processes of Constitutional Decisionmaking, 5th ed. (New York: Aspen Publishers, 2006), 32Google Scholar.

19 Home Building and Loan Association v. Blaisdell, 290 U.S. 398 (1934)Google Scholar.

20 Id. at 442–43. My colleague Scot Powe once suggested that anytime one sees a citation to these passages from McCulloch, readers should engage in the equivalent of holding onto their wallets, because the one certainty is that the most obvious construction of the Constitution is likely to fall by the wayside in favor of the upholding of highly controversial exertions of governmental power.

21 Walter Lippmann, one of the most widely respected newspaper columnists of the era, wrote in a pre-Inauguration column: “A mild species of dictatorship will help us over the road in the roughest months ahead.” Quoted in Alter, Jonathan, The Defining Moment: FDR's Hundred Days and the Triumph of Hope (New York: Simon and Schuster, 2007), 187Google Scholar.

22 Marbury v. Madison, 5 U.S. (1 Cranch) 137, 176 (1803)Google Scholar.

23 See Paulsen, Michael Stokes, “The Constitution of Necessity,” Notre Dame Law Review 79 (2004): 1257Google Scholar. The most obvious “extraordinary action” involves torture and other breaches of ordinary legal norms.

24 Breslin, Beau, From Words to Worlds: Exploring Constitutional Functionality (Baltimore, MD: The Johns Hopkins University Press, 2009)Google Scholar, 50.

25 The “transformationist” impulse behind the Constitution has been recognized by the South African Constitutional Court and plays some role in its jurisprudence. See, e.g., Justice Mahomed's opinion in State v. Makwanyane, which invalidated the death penalty in South Africa:

In some countries the Constitution only formalizes, in a legal instrument, a historical consensus of values and aspirations evolved incrementally from a stable and unbroken past to accommodate the needs of the future. The South African Constitution is different: it retains from the past only what is defensible and represents a decisive break from, and ringing rejection of, that part of the past which is disgracefully racist, authoritarian, insular and repressive, and a vigorous identification of and commitment to a democratic, universalistic, caring and aspirationally egalitarian ethos expressly articulated in the Constitution.

State v. Makwanyane, 1995 (3) SA 391 (CC), 1995Google Scholar (6) BCLR 665 (CC). See also Soobramoney v. Minister of Health (SwaAulu-Natal), 1009 (1) SA 765 (CC), 1997 (12) BCLR 1696: “We live in a society in which there are great disparities in wealth. Millions of people are living in deplorable conditions and in great poverty…. [T]hese conditions already existed when the Constitution was adopted and a commitment to address them, and to transform our society into one in which there will be human dignity, freedom and equality, lies at the heart of our new constitutional order.” See also Roederer, Christopher, “Founding Provisions,” in Constitutional Law of South Africa, 2d ed., ed. Woolman, Stuart et al. (Cape Town: Juta, 2002), 13-4Google Scholar.

26 South African Constitution, available online at http://www.info.gov.za/documents/constitution/1996/96preamble.htm. The final three lines of the preamble invoke God's blessings in several of the official languages of South Africa.

28 See Devenish, G.E., A Commentary on the South African Constitution (Durban, South Africa: Butterworths, 1998), 2829Google Scholar.

29 See Roederer, “Founding Provisions,” 13-5 n. 1.

30 Minister of Home Affairs v. National Institute for Crime Prevention and the Re-Integration of Offenders (NICRO), Case No. CCT03/04 (2004)Google Scholar.

31 See, e.g., Orgad, Liav, “The Preamble in Constitutional Interpretation,” I-CON (forthcoming 2011)Google Scholar.

32 Kesavananda Bharati v. The State of Kerala, AIR 1973 SC 1461, available online at http://openarchive.in/newcases/29981.htm. See Story, Joseph, Commentaries on the Constitution of the United States, ed. Rotunda, Ronald D. and Nowak, John E. (Durham, NC: Carolina Academic Press, 1987), 163Google Scholar.

33 Nepalese Constitution of 1990, Article 116 (emphasis added), available online at http://www.servat.unibe.ch/icl/np00000_.html.

34 See Decision of the Constitutional Council No. 44-71 (1971)Google Scholar.

35 The preamble to the 1958 French Constitution begins as follows: “The French people hereby solemnly proclaim their dedication to the Rights of Man and the principle of national sovereignty as defined by the Declaration of 1789, reaffirmed and complemented by the Preamble to the 1946 Constitution.” See http://www.servat.unibe.ch/icl/fr00000_.html. The 1946 preamble itself is considerably longer and more detailed:

In the morrow of the victory achieved by the free peoples over the regimes that had sought to enslave and degrade humanity, the people of France proclaim anew that each human being, without distinction of race, religion or creed, possesses sacred and inalienable rights. They solemnly reaffirm the rights and freedoms of man and the citizen enshrined in the Declaration of Rights of 1789 and the fundamental principles acknowledged in the laws of the Republic.

They further proclaim, as being especially necessary to our times, the political, economic and social principles enumerated below:

  • The law guarantees women equal rights to those of men in all spheres.

  • Any man persecuted in virtue of his actions in favour of liberty may claim the right of asylum upon the territories of the Republic.

  • Each person has the duty to work and the right to employment. No person may suffer prejudice in his work or employment by virtue of his origins, opinions or beliefs.

  • All men may defend their rights and interests through union action and may belong to the union of their choice.

  • The right to strike shall be exercised within the framework of the laws governing it.

  • All workers shall, through the intermediary of their representatives, participate in the collective determination of their conditions of work and in the management of the work place.

  • All property and all enterprises that have or that may acquire the character of a public service or de facto monopoly shall become the property of society.

  • The Nation shall provide the individual and the family with the conditions necessary to their development.

  • It shall guarantee to all, notably to children, mothers and elderly workers, protection of their health, material security, rest and leisure. All people who, by virtue of their age, physical or mental condition, or economic situation, are incapable of working, shall have the right to receive suitable means of existence from society.

  • The Nation proclaims the solidarity and equality of all French people in bearing the burden resulting from national calamities.

  • The Nation guarantees equal access for children and adults to instruction, vocational training and culture. The provision of free, public and secular education at all levels is a duty of the State.

  • The French Republic, faithful to its traditions, shall conform to the rules of international public law. It shall undertake no war aimed at conquest, nor shall it ever employ force against the freedom of any people.

  • Subject to reciprocity, France shall consent to the limitations upon its sovereignty necessary to the organization and preservation of peace.

  • France shall form with its overseas peoples a Union founded upon equal rights and duties, without distinction of race or religion.

  • The French Union shall be composed of nations and peoples who agree to pool or coordinate their resources and their efforts in order to develop their respective civilizations, increase their well-being, and ensure their security.

  • Faithful to its traditional mission, France desires to guide the peoples under its responsibility towards the freedom to administer themselves and to manage their own affairs democratically; eschewing all systems of colonization founded upon arbitrary rule, it guarantees to all equal access to public office and the individual or collective exercise of the rights and freedoms proclaimed or confirmed herein.

Available online at http://www.elysee.fr/elysee/anglais/the_institutions/founding_texts/preambule_to_the_27th_of_october_1946_constitution/preambule_to_the_27th_of_october_1946_constitution.20243.html.

36 Orgad, “The Preamble in Constitutional Interpretation,” 12.

37 See ibid., 13 n. 53, citing Stone, Alec, The Birth of Judicial Politics in France: The Constitutional Council in Comparative Perspective (Oxford: Oxford University Press, 1992), 40–45, 66–78Google Scholar (noting that seven of the sixteen annulments issued by the Council between 1971 and 1981 were based on interpretations of the 1958 preamble.

38 See especially Schmitt, Carl, Constitutional Theory, ed. and trans. Seitzer, Jeffrey (Durham, NC: Duke University Press, 2008)CrossRefGoogle Scholar.

39 See, e.g., ibid., 65, 70.

40 Schmitt, Carl, The Concept of the Political, trans. Schwab, George (Chicago: University of Chicago Press, 2007)CrossRefGoogle Scholar.

41 Swiss Constitution, available online at http://servat.unibe.ch/icl/sz00000_.html.

42 Thus, “Nkosi Sikelel' iAfrica,” although isiZulu, works as well with isiXhosa because the languages are connected, and it might even evoke isiSwati and isiNdebele. “Morena boloka setjhaba sa heso” is Sesotho, but works also with Sepedi and Setswana. “Mudzimu fhatutshedza Afurika” is Tshivenda, while “Hosi katekisa Afrika” is Xitsonga. I am extremely grateful to Aifheli E. Tshivhase, a lecturer in the Faculty of Law at the University of Cape Town, for providing me with this information, and to Professor Christina Murray for putting me in touch with Mr. Tshivhase.

43 Dred Scott v. Sandford, 60 U.S. (19 How) 393 (1857)Google Scholar.

44 It should be noted that this part of the Fourteenth Amendment was determined not to apply to American Indians, who were treated as part of separate, though distinctly subordinate, nations and, therefore, not entitled to birthright citizenship. American law with respect to the citizenship status of American Indians changed in 1924, but only because of the passage of a law by Congress. The Supreme Court has never overruled its decision in Elk v. Wilkins, 112 U.S. 94 (1884)Google Scholar, which rejected birthright citizenship as a constitutional right.

45 See, e.g., Kramnick, Isaac and Moore, R. Laurence, Godless Constitution: A Moral Defense of the Secular State, rev. ed. (New York: W. W. Norton, 2005)Google Scholar.

46 United States Constitution, available online at http://www.earlyamerica.com/earlyamerica/freedom/constitution/text.html (emphasis added).

47 I was reminded to think about this passage of the Constitution by Ronald R. Garet, “With Radiant Countenance: Creation, Redemption, and Revelation,” a paper prepared for delivery at the annual meeting of the American Association of Law Schools, January 2008.

48 Canadian Charter of Rights and Freedoms, available online at http://www.efc.ca/pages/law/charter/charter.text.html.

49 Swiss Constitution, available online at http://servat.unibe.ch/icl/sz00000_.html.

51 See “Hinduism: The World's Third Largest Religion,” http://www.religioustolerance.org/hinduism.htm.

52 Greek Constitution, available online at http://www.hri.org/docs/syntagma/.

53 Irish Constitution, available online at http://www.taoiseach.gov.ie/attached_files/Pdf%20files/Constitution%20of%20IrelandNov2004.pdf (emphasis in the original).

54 Constitution of Pakistan, available online at http://www.pakistanconstitution-law.com/preamble.asp.

55 Polish Constitution, available online at http://servat.unibe.ch/icl/pl00000_.html (emphasis added). Consider also in this context the preamble to the 1998 Albanian constitution, which begins as follows: “We, the people of Albania, proud and aware of our history, with responsibility for the future, and with faith in God and/or other universal values, … establish this Constitution.” See http://www.ipls.org/services/kusht/intro.html. I am grateful to Zachary Elkins for informing me of this text.

56 See the Spanish Constitution, available online at http://servat.unibe.ch/icl/sp00000_.html.

57 Constitution of the Republic of Turkey, available online at http://www.servat.unibe.ch/icl/tu00000_.html.

58 Levinson, Sanford, Written in Stone: Public Monuments in Changing Societies (Durham, NC: Duke University Press, 1998)Google Scholar.

59 Constitution of Croatia, available online at http://www.servat.unibe.ch/law/icl/hr00000_.html.

60 See the American Declaration of Independence: “When in the Course of human events it becomes necessary for one people to dissolve the political bands which have connected them with another … a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.” Available online at http://www.ushistory.org/declaration/document/index.htm.

61 Constitution of Croatia, available online at http://www.servat.unibe.ch/icl/hr00000_.html.

62 Constitution of Vietnam, available online at http://www.servat.unibe.ch/icl/vm00000_.html.

63 Breslin, From Words to Worlds, 60.

64 For an interesting overview of the controversy, see “Do ‘God’ and ‘Christianity’ Have a Place in the European Union Constitution?” http://www.religioustolerance.org/const_eu.htm.

65 Lochner v. New York, 198 U.S. 45, 75 (1905)Google Scholar (Holmes, J., dissenting) (emphasis added).