Symposium | The Democracy Constitution

Dissent: Policies Are Not Rights

By Jeffrey K. Tulis

Tagged ConstitutionDemocracy Constitution

I strongly support publication of this proposed new constitution for the United States. But I respectfully dissent from several important aspects of the proposal.

I support the project because our existing Constitution is failing. Our democratic culture is in a state of decay. Americans need a new civic education, and one can be generated by questioning the fundamental design of our polity.

The new constitution proposed here is thoughtful and bold. It can prompt constitutional thinking and civic renewal, even if the reaction to it is only to induce improvement of our existing Constitution. Improving or replacing the Constitution requires a return to the most fundamental aspects of constitutional design, and arguing about this proposal will do that.

Three features of the new constitution, though, are very problematic. Because of them I would not urge ratification of this proposal in its present form.

First, the new constitution privileges rights as the conceptual lens for governmental purposes rather than purposes per se. The first Article of the proposed design is a long list of rights. Securing individual rights is a purpose of a good liberal democracy, but doing so by foregrounding a list can be culturally corrosive. Rights are vitally important, but speaking always in terms of them diminishes both the intelligent discussion of power and its limits and also the multiple legitimate and democratically contestable ways to secure the common good.

The original Constitution did not even have a bill of rights for this reason. When one was added, it was decided to append a list of rights to the end of the document to diminish their significance and elevate that of the structures and powers and their operation. Designed as an addendum, the Bill of Rights became the core of the Constitution for most Americans. Unplanned and unfortunate, the consequences included elevating the role and significance of the judiciary, intensifying the democratic problem of individualism, and diminishing the motivation of the legislature to enact laws that would advance the positive purposes of the Preamble.

In the proposed new constitution, several positive purposes of liberal democracy, such as eliminating poverty, are expressed as rights. This form of expression privileges progressive solutions to the problem, such as a guaranteed income, over competing solutions such as job creation. The merits of these competing policies are historically contingent—at some points in our history a guaranteed income might be imperative; in others it might be problematic. Entrenching policy as a right diminishes democratic deliberation, de-legitimates partisan contestation, and precludes political choice.

Second, the core pathology of American politics today, at the institutional level, is the breakdown of the legislature, not the presidency, notwithstanding Donald Trump’s exemplification of our first genuine imperial President. The proposed new constitution makes the Congress the supreme branch, or certainly the most powerful branch. In our deliberations no serious attention was given to why the Congress has failed—well before the current polarization and obstruction by Mitch McConnell, the hyper-partisan GOP, and the ascendance of partisanship as tribalism. Congress has been abdicating its duties and failing to exercise many of its powers for a long time, at least since World War II. Why give Congress so much additional power and responsibility without seriously thinking about how to fix the Congress itself?

Finally, the original Constitution was designed and defended as one for a whole polity—not just an arrangement of offices and powers. Thus, Federalist Number 10, for example, mentions no clauses, no offices, no processes, no legalistic stuff at all. Although our assembly of delegates included a wide array of opinion and talent, this project was led by legal academics—scholars who don’t characteristically talk about the regime as a whole and the way well-designed constitutions shape polities as wholes. Unlike the original debate regarding our present Constitution, we had no discussion of the larger way of life proposed for this polity—a way of life that has distinctive social, cultural, and even psychological aspects. On this point, the words of Alexis de Tocqueville ring truer today than in the nineteenth century when they were written: “A new political science is necessary for a wholly new world.”

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Jeffrey K. Tulis is Professor of Government at The University of Texas at Austin.

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