Edited Version published in Constitutional Stupidities/Constitutional Tragedies 121-128
(William N. Eskridge and Sanford Levinson, eds., NYU Press 1998).
Copyright 1998 by Jack M. Balkin. All Rights Reserved.
How should we understand the notion of constitutional tragedy? One approach views it as a matter of interpretive theory: Constitutional tragedies occur when a favored method of constitutional interpretation produces regrettable results. A second approach focuses on constitutional evil: the possibility that the Constitution permits or requires serious and profound injustices, like slavery. Constitutional tragedy occurs when we cannot escape the possibility of constitutional evil.
The second approach is surely related to the first: Whether constitutional evil is unavoidable depends on the limits of constitutional interpretation. Optimistic interpreters might insist that constitutional evils are usually the result of improper readings of the Constitution. Dred Scott v. Sandford(2)was an wicked result, but it was also a bad interpretation. If we distinguish the history of interpretations of the Constitution from its best interpretation, couldn’t we escape the problem of constitutional evil (and constitutional tragedy as well)?
Yet resting our hopes on an ideal Constitution faces two problems. First, it begs the question whether the Constitution, shorn of all bad prior readings and interpreted in its best possible light, will always lead to happy endings and never to unhappy ones. If it does, this may not prove a real advantage of our theory of constitutional interpretation. Rather, it may reveal a defect– that our theory is not, in fact, a theory of constitutional interpretation at all, but a free floating disquisition on the right and the good.
Second, although individuals can imagine ideal constitutions, they do not have control over what the Constitution means. The Constitution is not simply the best interpretation of it judged from the perspective of a particular academic’s mind. It is an ongoing political and social institution with a history that constrains its possible future growth and development. Even if an ideal Constitution could avoid all unhappy endings, it is by no means clear that the existing institution of constitutional law can do so. As an ongoing legal and political practice, the meaning of the Constitution is controlled by no single person, but is rather the product of ongoing political and theoretical struggle by judges and citizens, politicians and academics, over its meaning, scope, and direction. The institution of the Constitution is a joint project in which we Americans play roles of differing influence and importance. And each of us suffers the consequences of what we and others do in the name of the Constitution.
The belief that the best interpretation of the Constitution can avoid constitutional evil shares something in common with the belief that the Constitution means what a particular academic’s vision of reason demands that it mean. Both beliefs are in a sense solipsistic; both forget that the meaning of the Constitution in practice– as a part of an ongoing tradition– is social and public. It is created through the interaction of people with conflicting views and ideologies, who in turn operate against the history of past readings of the Constitution and past decisions made in its name.(3) Even the Justices of the Supreme Court are hemmed in by the political necessities of their time and by the work of previous Justices. The problems that these Justices encounter have been set for them by the political configuration they face, by the doctrinal categories already in place, by the past deeds and misdeeds of the nation.
That is why I would like to offer a third perspective on the nature Constitutional tragedy: one that connects constitutional tragedy to the fortunes of a nation that lives under a Constitution it continually creates and recreates. Constitutional tragedy is what befalls us, as a nation, because of the Constitution we have collectively created for ourselves. In this process, the innocent are punished along with the guilty, the sins of the parents are visited upon the children. And still we go forward, unknowingly, sewing the seeds of later tragedies.
Tragedy means more than unjust results or unhappy endings. True, people often equate tragedy with misfortune; we often say that an accident is “tragic” because it is terrible and sad. But there is also a dramaturgical concept of tragedy, and many theories about tragedy, ranging from the Ancient Greeks to the present day. This sense of tragedy is about more than unhappiness– it is about the human predicament and the complicated relationship between our fates and our characters, between those aspects of our lives we can control and those that are beyond our knowledge and our abilities.
Aristotle tells us that tragedy is a story about a hero, usually of noble birth, who is undone through circumstances beyond his control. Often the hero’s destiny has already been foretold. But the tragedy also occurs in part due to a tragic flaw in his or her character, a flaw that spurs the hero on to his or her eventual destruction. A classical tragedy contains a reversal of fortune, a moment when the hero recognizes this reversal, and the hero’s eventual defeat. In a well-made tragedy, the audience is edified by this event, experiencing a catharsis or emotional release.
Aristotle pointed to the story of Oedipus as an example of tragedy. Oedipus’ flaw is his arrogant self-confidence. Oedipus solved the riddle of the Sphinx and thus he believes he can master all difficulties placed in his path. Because he is blinded by pride, Oedipus does not understand until it is too late that he has been undone by his own character and by circumstances beyond his control. In Sophocles’ version, Oedipus’ subjects come to him with yet another riddle: Thebes is suffering from a plague and his subjects want to know why the gods are angry with them. Oedipus solves the mystery, but discovers that he is the cause, for he has killed his father and slept with his mother. At that point he puts his eyes out. Before he could see but was truly blind, now he is blind but truly sees.(4)
If constitutional tragedy is of this kind, who is the tragic hero? Most examples of constitutional evil or constitutional injustice involve persons who suffer at the hands of others. Yet no matter how much we may empathize with the victims of constitutional injustice, these persons are not tragic heros. For example, we do not attribute a tragic flaw to slaves suffering from constitutionally protected slavery. They did not suffer unhappiness because of some defect in their character. Moreover, slaves well understood that they were suffering at the hands of their masters. There is no reversal, no recognition of fate, and certainly no catharsis by watching their suffering.
A second possibility is that judges are tragic heros, and in particular, the justices of the Supreme Court. Imagining judges as heros is flattering. It is flattering not only to judges but to academics, who often imagine themselves in the role of judges, shaping the meaning of constitutional law through argument and interpretation. But judges who interpret the Constitution are hardly tragic heroes. They may have to make “tragic” choices between unpalatable alternatives but they are not necessarily undone by them. When judges hold that homosexuals have no constitutional rights that heterosexuals are bound to respect, they are not subsequently beaten up by drunken homophobes. When they deny poor people rights of subsistence, their homes are not seized and they are not forced to live on the streets. Indeed the salaries of federal judges are constitutionally guaranteed. They may be the most obvious vehicles of constitutional evil, but they are not the heros of the story.(5)
To be sure, the courts– and particularly the Supreme Court of the United States– can squander their political capital by unwise decisions. They can create insoluble dilemmas for themselves by their previous holdings, and they can cause other political actors to hold them in contempt. But this is a far cry from the sufferings that Oedipus or Antigone underwent. Most Supreme Court justices die in their beds. True, they receive bushels of hate mail; they are regularly castigated in the press by unhappy litigants and activists. But they are also continually lauded and praised by the political and legal establishment, invited to inaugural balls and asked to speak at judicial conferences and bar association dinners. If they are fated to be subject to anything it is to an almost unending stream of toadying. No matter what damage they may eventually cause to the country or suffer to their reputations, they hardly deserve the name of tragic hero.
Moreover, even after Supreme Court justices have squandered the Court’s political capital, it has usually replenished itself with little effort. America has lived through Dred Scott, through Lochner,(6) through Korematsu,(7) and many other dark days, and still the Supreme Court is respected and revered and its opinions obeyed. This is at most the story of the ebb and flow of political clout. It is not the stuff of tragedy. At least not yet.
Neither the victims of constitutional evil nor the judges who perpetrate it are the proper heroes of constitutional tragedy. If there is a tragic hero to the story of the Constitution, it must be the American people as a whole. The American people, acting through the three branches of government, commit themselves to a disastrous course of action due to some defect in the national character, which leads eventually and unwittingly to great suffering and severe punishment. Because the American nation is the unwitting hero of its own constitutional tragedy, the hubris of one generation is often visited upon the next, and many innocents suffer due to the arrogance of others. The forces of tragedy are indiscriminate in their application. They destroy not only the hero but often many others as well. Oedipus’ sins were visited on his subjects, as well as on his children. Antigone’s tragedy followed on that of her father.
From this perspective the constitutional evil of slavery looks very different. It is the story of Americans making a deal with evil, what William Lloyd Garrison called a “Covenant with Death and an Agreement with Hell,”(8) then pretending it was not an evil– or if so, an evil that could be managed, assuaged, compromised away– until finally slavery provokes a crisis, leading to the deaths of hundreds of thousands of Americans. Only as Americans begin to fathom the blood and suffering they have brought upon themselves by their pact with Hell do they begin to recognize their mistake, their hubris, and their wrongheadedness. “A new birth of freedom” gradually emerges from this struggle, but at a terrible cost.
To a great extent, this is Abraham Lincoln’s later interpretation of the Civil War. It is the interpretation that he offers in his second Inaugural Address. This speech is the great recognition scene in the American tragedy of the Civil War. The crucial passage comes immediately before the most famous portion asking for reconciliation “with malice towards none, with charity for all”:
Fondly do we hope– fervently do we pray– that this mighty scourge of war may speedily pass away. Yet if God wills that it continue, until all the wealth piled by the bonds-man’s two hundred and fifty years of unrequited toil shall be sunk, and until every drop of blood drawn with the lash, shall be paid by another drawn with the sword, as was said three thousand years ago, so still it must be said, “the judgments of the Lord are true and righteous altogether.”(9)
One is tempted to see the Civil War as a constitutional tragedy of classical proportions, with America recognizing its mistake only when it is too late. But that is too tidy an interpretation. The tragedy still continues. The complete recognition has not yet arrived. America did not completely understand the evils of its ways. Slavery was not abolished until after the war. Egalitarian and remedial measures were blunted. And the badges and incidents of slavery remain with us today.
Still later generations of white Americans would fail to understand the meaning of the Civil War, and the depth of America’s sins. Less than twenty years after the carnage, Justice Bradley would vote to strike down civil rights laws, uttering his famous statement that “[w]hen a man has emerged from slavery, and by the aid of beneficent legislation has shaken off the inseparable concomitants of that state, there must be some stage in the progress of his elevation when he takes the rank of a mere citizen, and ceases to be the special favorite of the law.”(10) This is the sort of continuing blindness that eventually leads to new forms of tragedy.
Constitutional tragedy, then is our country’s blindness to the evils within it, evils it has wrought on itself and others, evils that later rise up and submerge it in misery and retribution. Constitutional tragedy is hubris, the hubris of a nation. We hope as a nation that the evil bargains we have entered into are not so terrible: that we can accept them, that we can live with them, that they will not ultimately consume us. We believe that we have the courage and the ability to deal with their consequences. We imagine that all injustices can eventually be undone, all conflicts harmonized, so that the bargain with evil, the pact with Hell we enter into today, will not be enforced against us in later years. We believe, in short, that we can escape full payment for our compromise with evil. Yet each clever action we employ to escape our fate simply brings it closer to fruition.
An oracle told Oedipus’ father Laius that his house was cursed and that his son was destined to kill him. When Oedipus was born, Laius ordered Oedipus’ feet pierced, and left the child to die on Mount Cithaeron. The baby was found, and raised by others he thought his parents, so that when Oedipus met his real father he did not recognize him. Believing that he could make everything right, Laius, like Oedipus himself, simply accelerated the course of events.
So too did the American nation deal with slavery, imagining that it could handle the evil within its breast by compromise, by clever parliamentary stratagem, by procedural device and legal maneuver. The antebellum generations thought themselves mature and competent statesmen, and, like Oedipus, able to solve any riddle, resolve any difficulty. The cleverer they thought themselves, the more quickly they hastened the nation’s day of reckoning, when it would become clear that no amount of trickery and no political compromise would forestall the inevitable calamity that awaited them and their children.
Yet this hubris is more than simple egotism. It also reflects the need to reduce cognitive dissonance.(11) Americans want to believe in the justice of their legal system; they want to treat their Constitution as an object of veneration. But accepting the reality of constitutional evil is dissonant with this belief. One cannot pledge one’s faith to a deeply evil and unjust thing. To reduce dissonance, one must downplay the significance of constitutional evils, or one must convince one’s self that the Constitution’s defects can and will remedied in good time. Belief in an ideal constitution is another way of reducing this dissonance: by separating the actual practice of constitutional law from the ideal Constitution of our imaginations, we can pretend that the former is an imposter, a sort of an evil twin who must and will eventually be unmasked and dethroned.
Thus, while the interpretive theorist wonders whether the Constitution produces only happy endings, it is perhaps more to the point to consider the psychological processes by which we convince ourselves that the constitutional evils around us are not truly evil, recasting them as unfortunate wrongs that we can live with. Many Americans actively defended slavery in 1850, asserting that it was a justifiable and honorable institution. Many progressive thinkers detested slavery but thought it was not as bad as the barbarisms of previous generations, and that, in time, it would eventually pass away. The strategy of many anti-slavery progressives before the Civil War– including Abraham Lincoln– was to accept the southern states’ right to slavery but to oppose its spread to new territories. Even after the war began, Lincoln sought to bring the South back into the Union with slavery intact. Only the depth of the tragedy changed his mind and the country’s.
We now see slavery differently than the generation of 1850 saw it. Because slavery is a constitutional evil of the past, we can afford to be suitably shocked and horrified that our predecessors let it continue as long as they did. We can look upon slavery’s apologists with scorn and the progressives willing to compromise with them with condescension. But is our position so different from theirs? The possibility of profound constitutional evil leads us, like them, to ever new strategies of cognitive dissonance, in which we imagine that no evil existing today can be as bad as we now understand slavery to be. We are not the first generation to wish away the evils around us, nor will we be the last. The age of tragedy is still with us. And it is part of the tragedy that we do not understand this as a nation until it is too late.
Is there such a tragedy brewing today? Is there a blindness that we have taken upon ourselves? Are we engaged, even now in the reduction of cognitive dissonance necessary to get ourselves through the day? If you ask me what it is, I would say that it is our indifference to poverty, and the overwhelming consensus of opinion, especially by so called liberal constitutionalists,(12) that the Constitution does not protect the poor from the overreaching of the political process, even when the overreaching is due to an unholy alliance of spiteful demagogues on the one hand, and spineless accommodators on the other. I would say that at this moment, we are, and have been for some time, brewing a terrible stew of despair, resentment, and hopelessness throughout our country, making it impossible for people to better themselves, to educate themselves, to free themselves from new forms of slavery and to become full citizens of our country. Perhaps we will be fortunate and this scourge will pass away quickly, bloodlessly, happily, and without any reckoning to ourselves. Let us pray that it will. But let us also pray that we are not now engaged in the creation of a new constitutional tragedy that will punish our children for the sins that we commit today.
3. Thus, we (the American People) do control the meaning of the Constitution, but we do so collectively, not individually. The meaning of the Constitution in practice does not reflect the excellent reasoning of any single person– no matter how stellar their academic credentials– but the give and take of political struggle and legal compromise.
4. Aristotle’s is not the only theory of tragedy. Many scholars throughout out history have offered accounts, including Hegel, Schopenhauer, and Nietzsche. But Aristotle’s is the most famous and lasting analysis, and it connects best with what I have to say here.
A contemporary way of imagining tragedy is in terms of “tragic choices”– equally unpalatable alternatives that one is led to by previous circumstance. In classical terms this is a focus on the moment when the decisionmaker recognizes his or her situation and must act. A tragic choice, in other words, is another version of the recognition scene.
5. Judges do play a role in constitutional tragedies but they do so only as part of a larger political system. They work within an existing political consensus about what is politically possible and impossible. They are hemmed in by the work of their predecessors; previous precedents and doctrinal categories shape their legal imaginations and push them in directions they might otherwise not wish to go. Judges often face difficult and unpalatable decisions when they interpret the Constitution. But these “tragic choices” are usually the result of previous actions; not merely by their judicial predecessors, but by the political culture as a whole. When Justice Story upheld the Fugitive Slave law in Prigg v. Pennsylvania, 41 U.S. (16 Pet. 539 (1842), he did so in part because the case was before him. And it was before him because of an entire history of conflict over the Constitution’s previous bargain with slavery.