Written Constitutions as a Trap for Hypocrisy

This is the first off-shoot of my general contemplation, in the wake of attending a talk by Bruce Ackerman yesterday evening, of what it is about his constitutional and political philosophy that I find so unacceptable that I have felt worthy of being written up. It's a fairly modest point, and not really much related to Ackerman at all except in that he inspires it through his apparent distaste for the idea that the Reconstruction Amendments, particularly the 14th and 15th, really did provide a textual constitutional basis amply sufficient for the 20th century civil rights movement. I don't know for sure whether the particular factor that I am about to discuss contributes to that distaste, but it seems to me that it might in part be motivated by the fact that the framers of the 14th and 15th Amendments were, for the most part, what we would today consider racists. Most of them were also, certainly, sexists and homophobes and religious bigots. In fact, "bigot" is just a good catch-all term to describe the attitudes of nearly every member of the "good" side of the 1860s political clashes, viewed by modern standards (with the possible exception of men like Thaddeus Stevens). To depend on the legacy of these men, these hypocrites who wrote the shining text of the 14th Amendment into the Constitution but who denied the vote to women and who abandoned any efforts to help black people within a few short years of the passage of that Amendment, who may only have been looking for Negro votes in any case, to craft the sweeping societal changes of the Civil Rights Movement could well seem offensive, as tainting the achievements of true egalitarians like Hubert Humphrey, Lyndon Johnson, and (lest we leave out the contributions of African-Americans themselves) Martin Luther King.

Now, I obviously don't find the contrast between the text of the Reconstruction Amendments and the attitudes of those who wrote and passed them particularly unsettling, but it is definitely a striking contrast. Indeed, the same can be said of the original Constitution, which many (though not all) abolitionists, including Frederick Douglass, argued forcefully was an anti-slavery document, even though it certainly contained a few provisions directly supporting the slave regime and though it was universally interpreted as protecting the "domestic institutions" of the Southern states. How did this happen? How did polities whose fundamental values we would today consider so prejudiced and even hateful manage to write these documents which are so open to much more enlightened interpretations than any their framers could have envisioned, or even to demand such interpretations? I think the answer lies in the concept of hypocrisy.


Here's a quick Google-given definition of the concept:

the practice of claiming to have moral standards or beliefs to which one's own behavior does not conform

In an earlier post I suggested three different kinds of hypocrites: unwitting, honest, and Machiavellian. All three of those meet this definition: the unwitting hypocrite genuinely believes that he both holds and conforms to those moral standards, but is viewed by someone else as being wrong on the second point; the honest hypocrite knows he does not conform to the standards which he genuinely holds; and the Machiavellian hypocrite does not actually hold those standards, and is consciously aware of the fact that his public claims to them are lies. The men involved in framing both the original Constitution/Bill of Rights and the Reconstruction Amendments were, for the most part, one or another of these kinds of hypocrites. A few may have been honest hypocrites; indeed, the whole point of that earlier post was arguing that Jefferson was one of these. Some were undoubtedly full-on Machiavellian hypocrites, perhaps including some Republicans who viewed the Reconstruction Amendments solely as a way to get a large cohort of loyal Negro voters and didn't actually give a damn about those Negros' civil rights. Most, however, were probably unwitting hypocrites. Indeed, there is a certain sense in which they must have been unwitting hypocrites at the very least, from a modern perspective. They did things which we moderns would condemn, and moreover which we moderns would, in our own thinking, view the very language which they wrote into the Constitution as condemning. So let us conclude that nearly everyone involved in producing the Constitution as it was in 1875 was, in retrospect at least, a hypocrite of some sort.

I contend that it is a virtue of written constitutions that, when written by hypocrites, they will extract and enshrine the moral standards in which those hypocrites profess to believe and will, if viewed in a sufficiently textual rather than originalist or precedent-based fashion, remove from them the stain of inadequate behavior. The whole point of written constitutions, after all, is that they are both written and very, very public, and the whole point of hypocrisy is that you publicly claim morals better than the ones you demonstrate. So in writing a constitution, what hypocrite will use language designed to accommodate their own sordid actions, rather than language designed to capture their moral aspirations? The unwitting hypocrite will not: they don't know that their behavior is inconsistent with their aspirations, so they will see no problem writing a constitution based on them. The honest hypocrite will not: they genuinely wish they could meet their own standards, so they will write a constitution based on those standards in the hopes that others will be able to meet them later on. How about the Machiavellian hypocrite, that rogue? He presumably has some good reason for his hypocrisy, which will provide a strong incentive not to expose that hypocrisy by opposing a constitution matching his professed but not his true beliefs. He may even feel that once he is in a position of power under the new constitutional regime he will be able to disregard the lofty ideals written on some piece of paper somewhere just as easily as he has been disregarding the lofty ideals in his own public pronouncements.

In all of these cases, however, forcing hypocrites to put ink on a page and produce a written constitution gives those who come after them a great gift. All they have to do to get a constitutional regime in action which will be more morally upright than that of their ancestors will be to follow the text. If they can just bring themselves to disregard whatever precedents, judicial or otherwise, were left by the earlier hypocritical generation's failures to live up to the text, and if they can just resist the arguments of Antonin Scalia and his ilk, who say we must incorporate at least the unwitting hypocrisy of the framers into the words they wrote, they will have a constitution based on lofty ideals whose actual language, whose literal ink on paper, is not soiled by the moral deficiencies of the men holding the pen. Forcing a polity to adopt a written constitution, and then insisting upon the supremacy of the text rather than of precedent or of original expectations, becomes a kind of alchemic process, transmuting moral failings into moral grandeur.

Our framers talked of liberty while owning slaves, and of democracy while oppressing half the population. The Republican leaders of Reconstruction talked of equality while hating the very men they freed. But they are dead, and their sins died with them, while the values they espoused, however hypocritically, live on in the First Amendment, the Equal Protection Clause, hell, even the Privileges or Immunities Clause if we would but see it, and in so many other parts of the United States Constitution. Perhaps instead of recoiling at using the language they gave us because of their misdeeds, we should acknowledge their genius in writing a constitution, and consider the possibility that more than a few of them were such honest hypocrites as hoped there would come a time when we might give truer meaning to these words than ever they could, and use those words to do every bit as much good as they command us to do.