Constitutions as Constraints

Mark A. Graber

Constitutional constraints are undertheorized and overrated. Constitutions are routinely advertised as vehicles for constraining political decisions. Constitutions work when governing officials make decisions on the basis of constitutional rules rather than personal preferences. Officials protect religious liberty rather than advance what their faith teaches is the one true religion. Constitutional constraints are undertheorized because conventional accounts of constitutions as constraining mechanisms fail to explore the strategies available to unsympathetic constitutional decisionmakers bent on frustrating constitutional provisions inconsistent with what they believe to be desirable political arrangements, fundamental rights, vital interests, and cherished policies. President Trump’s lawyers claimed that executive orders which Trump had described as a “Muslim ban” were designed to promote national security and not to discriminate against adherents of Islam. Constitutional constraints are overrated because even discounting disobedience, such strategies as invalidation, denial, neglect, off-the-wall interpretation, circumcision, circumvention, and capture frequently enable unsympathetic constitutional decisionmakers to frustrate constitutional provisions while maintaining nominal allegiance to the rule of law. Police officers frequently claim that evidence was “in plain sight” to frustrate implementation of the Fourth Amendment.

Strong constitutional constraints work only when unsympathetic constitutional decisionmakers respect the rule of law and are compelled to interpret constitutional provisions as inconsistent with what they believe are desirable political arrangements, fundamental rights, vital interests, or cherished policies. Constitutional provisions constrain unsympathetic constitutional decisionmakers who have some respect for the rule of law only when they cannot invalidate, deny, neglect, interpret away, circumcise, capture, or circumvent the text. Constitutional reformers can preempt these strategies for frustrating constitutional constraints only by quite specific language that eschews appeals to broad values and is likely to be inflexible in response to political, social, and technological changes. One consequence of this narrowing is that constitutional constraints are poor vehicles for widescale social reform. Constitutional transformation requires empowering the faithful, not constraining the unsympathetic.