If music is the space between the notes, the United States Constitution is a magnum opus of silence. At about 4,500 words, it’s pretty slim, and there’s a lot you’d expect to see in a foundational document that never made it into the final edit. Anyone seeking answers to a few very basic questions—say, who has the power to interpret the Constitution or what the scope of the federal government’s emergency powers is or whether the president is immune from criminal prosecution while in office or can pardon himself—is going to have to look somewhere outside the four corners of the text itself.
In a pair of recent books, legal scholars Ganesh Sitaraman and Sanford Levinson offer modern takes on two other big-ticket constitutional omissions: class conflict and secession, respectively. When constitutions fall apart, both of these man-made catastrophes usually appear on the short list of suspects. In the class-conflict scenario, the wealthy transform a constitutional republic into an oligarchy designed entirely for their benefit, or the poor revolt and drive the system off a cliff in a burst of impulsive and erratic populism. Under the secession scenario, one of the parties to a constitution decides to exit the union rather than work out differences within the terms of the existing partnership, causing the entire enterprise to collapse.
For a document designed to last for the long haul (the preamble calls it “posterity”), it’s downright bizarre that the US Constitution has nothing to say about two of the most predictable threats to its survival. The text doesn’t explicitly prohibit or allow a state to secede; it is simply silent on the matter. As for class conflict, while many legal historians (most recently Michael Klarman1) have accused the Framers of stacking the deck in favor of economic elites, the Constitution they wrote, on its face, is pretty quiet about managing the inevitable tensions that arise between rich and poor. It doesn’t impose any restrictions on wealthy or indigent people holding elected office, nor does it require meaningful representation of different class interests when the government makes decisions.
Both Sitaraman and Levinson force a closer look at the nature of constitutional silence and raise a question that doesn’t get much airtime in discussions about constitutional theory: to paraphrase Alison Krauss, does the Constitution say it best when it says nothing at all? We might also ask, as readers living through an era characterized by income inequality and partisan polarization, where the words “constitutional crisis” are in heavy rotation, whether our current liberal democratic regime would feel more secure if the Constitution had more to say about these impending systemic threats.
In The Crisis of the Middle-Class Constitution, Ganesh Sitaraman, a law professor and former policy director for Senator Elizabeth Warren, argues that the Constitution’s silence on class conflict was a conscious choice. Sitaraman focuses on how economic inequality affects constitutional systems, and he positions ongoing class conflict as a central threat to constitutional regimes generally and America’s in particular. Classical constitutional thinking saw the problem coming a mile away and attempted to solve it through what Sitaraman calls “class warfare constitutions” that accepted class division as an inevitable reality and explicitly incorporated members of different economic classes into various governmental institutions to deal with the problem.
For example, Rome had a patrician senate and a tribune of the plebs to ensure class representation, while Athens, Florence, and Venice selected some officials by lottery to counter aristocratic bias in government. These early constitutional models managed class struggle through institutions that allowed the wealthy and the poor to “check and balance” each other within the government, keeping the republic in a Goldilocks zone between an oligarchy dominated by the economic elite and a mobocracy driven by the populist rabble.
Does the Constitution say it best when it says nothing at all?
The United States Constitution adopts a very different approach: it does not contain a single provision that “explicitly entrenches economic class into the structure of government.” Instead, Sitaraman argues, the Constitution’s Framers relied on relative economic equality and a secure, robust middle class as an absolute precondition for the government to work in the public’s interest and to bridge political divisions between the haves and the have-nots. He believes our “middle-class constitution” can only endure by maintaining a strong middle class, and that constitutional survival requires politicians to step up and do something about income inequality. When the economic fortunes of the middle class take a dive—and Sitaraman amasses significant data suggesting that we are well on our way to plunging off that precipice—all constitutional bets are off.
As the editor of a collection of essays called Nullification and Secession in Modern Constitutional Thought, Sanford Levinson looks at another one of the Constitution’s notable gaps: clear guidance on whether and how a state can choose to leave the union after it signs up for membership. The lack of a prenup creates a terra incognita for unhappy partners in a constitutional marriage, leaving in its wake the risk of emotional and legal chaos if the split becomes acrimonious. Only a few years ago, this topic would have had a retro feel; secession was a central preoccupation for constitutional thinkers in the years leading up to the Civil War. But after years of dormancy, Brexit and revived calls for secession in Texas and California have given the subject new relevance.
In her contribution to Levinson’s volume, Vicki Jackson argues that when it comes to constitutional provisions governing secession, silence is golden. A rule that explicitly allows a member state to secede will likely encourage the regular formation of secession movements and the instability that comes with them, leading to an erosion of mutual trust, a loss of diversity as unhappy groups exit the system, and the potential for sectional violence against groups that oppose the breakup. On the flip side, an explicit prohibition on secession is unlikely to convince mobilized separatists to remain and would shut down constitutional divorces that might leave all parties better off. A silent constitution encourages unhappy groups to resolve their differences within the terms of the constitutional agreement, while still allowing for flexibility if a secession movement achieves widespread support.
Sitaraman and Levinson bring into sharp focus the many ways our 1787 Constitution glosses over the things that matter most in 2017. The text says nothing about a right to health care or education, nothing about wealth distribution, nothing about the way corporations wield their power or the integrity of political parties. It offers no roadmap to address the widespread loss of faith in our political system, the rise of partisan polarization, or social dislocation caused by globalization, climate change, and technological innovation.
Yet, when taken together, the books highlight the benefits of a constitutional text that sees less as more. Silence helps promote democracy and an active citizenry; when a group can’t get what it wants through an appeal to the Constitution, it is forced to organize, win elections, hold elected officials accountable, and engage the body politic to initiate social and political change. Constitutional silence makes politics bigger and law smaller.
Silence also means that public conversations about what the Constitution means are less likely to focus on the minutiae of the words in the text and more on the document’s larger themes. Franklin Delano Roosevelt called the Constitution “a layman’s document, not a lawyer’s contract,” highlighting that “We the People” are the ultimate source of sovereignty. While a detailed text privileges the authority and expertise of elite lawyers and judges, silence allows a wider range of citizens to enter the conversation about constitutional meaning by inviting arguments based on history and moral intuition rather than the legalistic parsing of terminology.
Moreover, constitutional silence allows for adaptation in the face of change. Once put in place, constitutional law is notoriously sticky and slow to adjust in the face of new information about a quickly changing and ever-more-dynamic world. Constitutions are a set of long-term commitments that lock a community into a course of action without full knowledge of what lies ahead. A minimalist text allows the flexibility to change course when confronted by uncharted waters.
Finally, there are good reasons to doubt, however much we’re inclined to fetishize it, that the constitutional text alone can ever provide a robust safeguard against major systemic threats. We’re going to be hearing a lot about what the Constitution doesn’t say in the coming years, as income inequality drives the republic closer to oligarchy and partisan polarization makes it harder to envision a union built around shared values.
Both dynamics are symptoms of what Jack Balkin recently called “constitutional rot,” a slow and cancerous erosion of constitutional norms brought about by widespread corruption, conflicts of interest, and loss of public trust.2 James Madison considered the written guarantees in the Constitution to be no more than “parchment barriers” against autocracy or self-dealing legislators, largely useless unless politicians themselves commit to fight against tyranny. The text is only as strong as the political institutions it creates; listening to silence reminds us that constitutional survival ultimately depends on responsible political actors to fill in the blanks.
- Michael J. Klarman, The Framers’ Coup: The Making of the United States Constitution (Oxford University Press, 2016). ↩
- Jack M. Balkin, “Constitutional Rot,” in Can It Happen Here?: Authoritarianism in America, edited by Cass R. Sunstein (2018, Forthcoming); Yale Law School, Public Law Research Paper no. 604. ↩