Constitutional Redemption and Finality

I want to start by saying that you should read Jack’s book.  It’s terrific and you’ll learn a lot. My initial post will be brief, as I’m still thinking about what I want to say here.

One question that the idea of “constitutional redemption” raises is when it should yield to “constitutional finality.” This is, of course, just a restatement of the issue presented by stare decisis when a precedent is challenged. In a draft Essay that I’ve written about Jack’s other new book (on framework originalism), I noted that one of our greatest acts of constitutional redemption came from racist Southerners who ratified the Fourteenth Amendment with faith that they would one day restore the “real” Constitution based on white supremacy.  And their faith was validated (for a pretty long time) through Jim Crow. The finality of the Fourteenth (and Fifteenth) Amendments was not taken for granted. Was this legitimate or desirable?

The point is that Jack’s emphasis is on how the possibility of redemption maintains our allegiance to constitutional commands issued long ago. That possibility, though, is also destabilizing.  All legal systems need some finality that goes beyond adopting a rule of recognition. I’m not clear how that fits into this theory.

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1 Response

  1. A.J. Sutter says:

    “All legal systems need some finality that goes beyond adopting a rule of recognition.” Perhaps. But in most legal systems constitutions have much shorter lives. E.g., the Swiss and Finnish constitutions both date from 1999; in Sweden, the current principal constitutional document, the Regeringsformen (Instrument of Government), is from 1974; and even in France, which retains some allegiance to the revolutionary ideals of “liberté, égalité, fraternité,” the constitution dates from 1958. Japan currently has the world record for a living, unamended constitution, but the issue of its legitimacy — whether or not it was “imposed” by MacArthur’s GHQ — is still alive, too (in a political sense, not a jurisprudential one). So “final” is a relative term, at best.

    The “redemption” concept doesn’t necessarily translate well, either. There isn’t any analogue in Japan to a Declaration of Independence, which Jack declares to be Americans’ constitution. The 1946 constitution does retain certain aspects of the previous constitution, from the Meiji era (1889). But that document was pretty much a deal between the Emperor and the landed classes — no one is very sentimental about it or wants to “redeem” it.

    There are plenty of Japanese who are passionately devoted to the current constitution’s character as a “peace constitution,” which may provide the best example of a feeling of “allegiance to a constitutional command issued long ago.” But there are also plenty of people who want to amend that very aspect of it (Article 9) to allow a wider scope of action for the Self-Defense Forces — to say nothing of those who want to return to a proper army. Those who love Article 9 may indeed be devoted to it because it embodies stories about the past (in a very negative sense), but those who want to change it aren’t necessarily motivated by different past narratives. Rather, they’re concerned about the growing weakness and indifference of the US, and rising threats from China and N. Korea: simple pragmatism.

    Nor is the depth of feeling suggested by the word “redemption” at all common. Japan’s 1946 constitution is based on the principle of popular sovereignty. For reasons too voluminous to be detailed here (power of bureaucrats; restrictions on popular canvassing; provisions not in the constitution but in a statute whose contents are determined opportunistically, and with conflicts of interest, by the legislature; etc. etc.), true popular sovereignty not exist in Japan — but you won’t see anyone out in the streets about it. In fact, as a law student at a national university recently asked a friend of mine who was teaching a constitutional law class, “Why should we want to participate in the development of the law?” And only the less-than-1% of the citizenry who are Christians might have any idea of what the metaphor of “redemption” means, anyway.

    In Europe, a not uncommon motive for constitutional change is the perception that the past narrative of nation-state needs to give way to multiculturalism, membership in the European Union, and other contemporary needs. In some cases the inspiration may be historical, but the extent to which constitutional changes reflect some kind of “redemption” of founding ideals needs to be examined closely in each case.

    So one should be careful about generalizing to “all legal systems,” especially those outside the Anglo-Saxon tradition.