Franciska A. Coleman, America's Constitutional Contradictions, 71 Am. U. L. Rev. Forum 1 (2021).
Abstract
Professor Richard Albert’s article, America’s Amoral Constitution describes the paradox of the U.S. Constitution as a document whose value neutrality is both the font of democratic legitimacy and a threat to the preconditions of liberal democracy. He suggests that the absence of constraints on the amending power of the people renders a constitution amoral even if the democracy itself meets liberal preconditions. Professor Albert’s definition of constitutional morality seems to require a localized version of Cass Sunstein’s “internal morality” of democracy. There must be some defining features of the local democracy without which it would no longer be cognizable as the local democracy; only then is the morality of a constitution implicated. For Professor Albert, “moral” constitutions are those that protect the internal morality of their democracies through “unamendability” provisions. Moral constitutions thus contain within them substantive limitations, not only on the individual laws a legislature can pass, but also on ways the people can revise their existing democratic government. Professor Albert’s description of America’s constitution as amoral rests on its lack of unamendability provisions protecting the core tenets of our democracy.
I do not take issue with this framing, but where Professor Albert sees a deliberate choice to have an amoral Constitution across all of U.S. history, I see an amorality that is the result of efforts to navigate the contradictions of American history. The Americans who wrote and ratified the Constitution privileged democratic legitimacy while simultaneously founding an apartheid state that violated the preconditions of liberal democracy. In doing so, the Founders created an America that was neither fish nor fowl, with high republican ideals co-existing with the everyday reality of the most inhuman oppression. Thus, I view the current amorality of the Constitution as a mid-point in the complex constitutional history that began with the immorality of slavery and that may yet end with an unamendable commitment to racial equality. In this Response, I suggest that America’s amoral Constitution is not a free-standing original choice but rather is the product of the nation’s inability to resolve its substantive and procedural self-contradictions: the contradiction between the moral values of the Declaration of Independence (“the Declaration”) and the immorality of slavery, the contradiction between de facto white supremacy and de jure racial equality, and the contradiction of constitution creation by amendment.
