10/23/2013 10:53 am ET Updated Jan 23, 2014

America's Amoral Constitution

The United States Constitution is unique among the constitutions of the world. Since James Madison saluted its drafters for having "reared the fabrics of governments which have no model on the face of the globe," we have often been reminded that there is something different, indeed special, about the United States Constitution. Political philosopher Alexis de Tocqueville observed in the nineteenth century that it is "the most perfect federal constitution that ever existed." Former British Prime Minister William Gladstone once called it "the most wonderful work ever struck off at a given time by the brain and purpose of man." For historian George Billias, the United States Constitution is "this country's greatest gift to human freedom."

America's unique Constitution has attracted many admirers. Its text and interpretation have inspired constitutional designers around the world, from Africa to Asia and Australia, and from Europe to the Americas. It has also guided drafters of modern multilateral agreements and helped shape the law of international human rights. But although the United States Constitution has traveled far from home, it has seldom taken root abroad as a perfect transplant. Admiration, then, does not always involve imitation.

Today the United States Constitution may have fewer imitators than ever before. The influence abroad of the Constitution has declined dramatically since its bicentennial in 1976. Foreign constitutions no longer bare a close resemblance to it. New and emerging democracies have more frequently emulated the semi-presidential model of constitutional government popularized by France. And many influential Americans -- including even Supreme Court Justice Ruth Bader Ginsburg -- now counsel countries against using the United States Constitution as a model.

Once a constitutional hegemon, the United States is now a constitutional outlier. The difference between the United States Constitution and many others is perhaps most pronounced in the design of post-war constitutional amendment rules. Since the Second World War and more recently since the end of the Cold War, constitutional designers have increasingly chosen against replicating the United States Constitution's constitutional amendment procedures. They have instead adopted a feature that has been foreign to the United States since 1808: unamendability.

Unlike the United States Constitution, modern constitutions commonly entrench unamendable provisions. Modern constitutions identify in the text of the constitution certain provisions that are unchangeable and impervious to the amendment rules that political actors normally follow to amend the constitution. The effect of an unamendable provision is to disable a constitution's otherwise operational amendment rules, hence the phrase "eternity clause," which some scholars have used to refer to unamendable provisions because they are designed to last forever. Modern constitutions have made unamendable everything from civil and political liberties, social and economic rights, national symbols and political practices, just to name a few.

But the text of the United States Constitution makes everything absolutely amendable. No provision is eternal and nothing is unamendable. Any constitutional rule in the United States is valid only until repealed by a subsequent rule. Everything is negotiable under the Constitution.

Negotiation and political contestation highlight the core value of the United States Constitution: amorality. The basic organizing logic that kindles the courtship between the constitutional text and constitutional politics in the United States is anchored in America's constitutional tradition of popular choice. The Federalist Papers tell us that what the people want, they may have: the people "are the only legitimate fountain of power," and "the fabric of American Empire ought to rest on the solid basis of the consent of the people." The only qualification to the rule of government-by-the-people is that Americans must express their preferences in conformity with processes designed by political actors and perceived by the public to be fair, representative, and faithful to the architecture of American constitutional politics.

In this way, the constitutional democracy in the United States is oriented toward process, not content, blessing with legitimacy any constitutional amendment that successfully meets the high standard for amending the Constitution, which generally requires two-thirds approval in both houses of Congress and three-quarters ratification among the states.

Popular choice therefore lies at the heart of the American tradition of constitutional politics. Perhaps the most helpful way to frame the notion of popular choice is to understand that it is anchored in the procedural value of outcome-neutrality, or amorality. The Constitution commands no particular result to constitutional deliberation and decisionmaking. Nothing warrants a special dispensation as constitutionally sacred.

The United States Constitution takes nothing off the table. Everything, indeed anything, is possible. As long as the required supermajorities of Americans express their will through their elected representatives, the constitutional culture of American self-government demands that its will be done. That is both the origin and the continuing source of the legitimacy of the Constitution.

In his farewell address to the nation, George Washington spoke to the interrelationship between the Constitution's sacrality and its susceptibility to amendment. "The basis of our political systems," he wrote, "is the right of the people to make and to alter their Constitutions of Government." But, he added, until the Constitution is duly amended, it "is sacredly obligatory upon all."

Whether the choices Americans make are good or bad, the choices are theirs to make, and they demand fidelity until they make an intervening decision to displace a prior choice.

Under the United States Constitution, it is not the actual choice that matters. It matters little whether Americans prefer to shut down the government or keep it open, to limit corporate spending in elections or cap it, to endorse either marriage equality or a more traditional definition, or to support choice or to choose life.

What matters is the very act of choosing and the way the choice is reached. The Constitution does not make a judgment about whether a choice is politically right or wrong; it assesses only whether the choice conforms to the legal process the constitutional text requires for it to have been made.

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