Walter E. Williams often made the point that a policy should be judged by whether it works, not by its good intentions. This warning is especially important because politicians are experts at declaring good intentions. If we judge them by their stated intentions alone, when their schemes end in disaster they could simply remind us that they meant well. Unfortunately, Professor Williams’s warnings went unheeded.
In their book Who Killed The Constitution, Thomas E. Woods and Kevin R.C. Gutzman make a very similar argument about the irrelevance of good intentions. In evaluating the constitutionality of a law or policy, whether it is constitutional or not is an entirely separate question from its good intentions. Too often, people are quite happy to endorse unconstitutional laws or unconstitutional government action if they believe it is “good” or, at least, if they think the motivations behind it are good and reflect what “should” be done.
This strikes at the heart of the increasingly hostile debates between North and South in the 1840s and 1850s. Given that slavery was morally wrong, and the radical abolitionists of the North were motivated by good intentions in desiring to abolish it immediately, did it matter what the Constitution said? Jefferson Davis of Mississippi insisted on the principle of constitutional government and the supremacy of the law. By contrast, the Radical Republicans of Massachusetts, led by Charles Sumner, insisted on what they judged to be the morally right thing to do. In his Senate speech on “The Barbarism of Slavery,” Sumner said,
Look at [slavery] in the light of principles, and it is nothing less than a huge insurrection against the eternal law of God, involving in its pretensions the denial of all human rights, and also the denial of that Divine Law in which God himself is manifest, thus being practically the grossest lie and the grossest Atheism.… Barbarous in origin; barbarous in its law; barbarous in all its pretensions; barbarous in the instruments it employs; barbarous in consequences; barbarous in spirit; barbarous wherever it shows itself, Slavery must breed Barbarians, while it develops everywhere, alike in the individual and in the society to which he belongs, the essential elements of Barbarism.
Identifying who the “barbarians” are is all well and good as a moral principle, but as a principle of government it is unsatisfactory. In addition to the somewhat apocalyptic framing—after all, nobody wants to co-exist peacefully with barbarians—it does not answer the question of what is to be done if all sides regard each other as barbarians. It could only lead to endless war, each side trying to crush the barbarians. The whole point of constitutional government is that the constitution provides a foundation for the resolution of disagreements.
A similar constitutional question arose in a case discussed by Woods and Gutzman, concerning racial segregation in schools in the Jim Crow era. Given that the Supreme Court regarded racial segregation as abhorrent and wished to end it immediately, did it matter what the Constitution said? The problem with the constitutional position on racism during Jim Crow was the same as the problem with the constitutional position on slavery in the 1850s—these things were increasingly regarded as immoral but were not unconstitutional.
One way to answer these questions is to “read” the Constitution as if it aligns with whatever may happen to be the perceived good outcomes of the day. It would entail reasoning backwards—deciding on the “right” moral or political outcome and then interpreting the words of the Constitution to fit that outcome. This is easier to accomplish than many might think, and activist courts are adept at this.
The Fourteenth Amendment is an example of how easily this can be achieved. The meaning of this amendment, as understood today, bears little resemblance to its meaning at the time it was put forward by the Radical Republicans. The goal of the Radicals, at the time, was to ensure that there would be no challenge to the constitutionality of their civil rights bill which was intended to safeguard the rights of freedmen to vote and to enjoy all the rights of citizens without being encroached upon by their states.
The Radicals expressed no intention to achieve racial integration or racial amalgamation. Indeed, this would have been a rather startling goal given that, as Brion McClanahan points out in his book The Jeffersonian Tradition, the Republican Party in 1860 campaigned in Wisconsin under the slogan, “Down with amalgamation!” and “Separate the Races!” Moreover, black people could not vote in many Northern states, including Connecticut. Yet today, it is confidently asserted that the Fourteenth Amendment not only outlaws racial segregation, but in fact requires diversity, equity, and inclusiveness.
The problem with reading the Constitution to mean whatever may be deemed desirable is obvious. As the “right” outcome varies widely depending on who is trying to achieve it, the “meaning” of the Constitution in turn varies widely. We are expected to believe that the words mean first one thing, then the very opposite. Accepting this strategy simply means that those in power can do whatever they want and retrofit the meaning of the constitution to validate their actions.
It would be more honest to acknowledge that the Constitution is being overridden by the desire to do the right thing, in favor of pursuing some “higher” moral goal. In addition to being more honest, this has the merit of sounding principled. We know that laws, and even constitutions, can be morally wrong, and that obeying bad law is no justification for causing harm to others. But again, we encounter the obvious problem—anyone can declare that they are driven by the pursuit of higher moral goals and, therefore, they do not have to follow the law. If that is all that is needed to override the Constitution, there might as well not be a Constitution.
A further strategy would be to announce that the case is exceptional, and that while the constitutional rule would normally apply, the exigencies of the case require an emergency response that is not strictly permitted by the Constitution. Again, the problem is obvious. It provides an incentive for policy makers to lurch from one “emergency” to another in an endless series of “exceptions.” As Woods and Gutzman argue,
To make exceptions for government actions that seem “right” but aren’t consistent with the Constitution is to make arbitrary, and quite dangerous, distinctions. Doing so breaks “the chains of the Constitution” that, in Jefferson’s memorable phrase, are needed to “bind down” politicians. Once we allow the government to go outside the bounds of the Constitution, we have created a precedent for other extraconstitutional actions later.
Alas, the government’s next move might not seem so “right” or desirable.
Constitutional theorists have grappled with these problems for centuries without coming to any simple solution. The obvious thing to do is amend the Constitution. This is what Chief Justice Taney suggested in the Dred Scott case. He acknowledged that moral and political opinion in America had changed since the foundation of the Union, and suggested that the correct thing to do if it was sought to confer citizenship on freedmen was to amend the Constitution. The problem is obvious—the Southern states could not be persuaded to ratify such an amendment with no practical solution provided to address their concerns about emancipation. These concerns were of no interest to the abolitionists, who were driven by what William Dunning referred to as “moral fervor.” Even after the war, the vanquished Southern States still could not be persuaded to ratify the Fourteenth Amendment. This amendment was, in the end, never properly ratified.
Ultimately, the better solution would be to limit the power of the state by devolving decision-making as much as possible into the hands of ordinary citizens. This is no guarantee of perfection, but it avoids the problems caused by concentrating unlimited power in the hands of a demagogue or a rogue government.
