Law in Contemporary Society

Ready for grading.

Maintaining the Constitution Creed

-- By DanielButrymowicz - 12 Feb 2008


Thurman Arnold argues that constitutions are “fundamental creeds” in contemporary society (27). They “furnish the limits beyond which controversy may not extend” (28). The current political climate in the United States corroborates Arnold’s observation. The Constitution does indeed frame the boundaries of social and political controversies. This essay’s goal is to illustrate the mechanism through which the United States Constitution stabilizes political conflicts. By channeling the energy of competing factions into a competition for the mantle of “constitutionality,” the Constitution creed prevents criticism of the governmental structure itself.

The Mantle of Constitutionality

As Arnold observes, internal inconsistencies are inevitable in any organization. The beauty of the U.S. Constitution is that it can usually be read to support almost any position. It is therefore “elastic” enough to allow opposing viewpoints to make use of it simultaneously (Arnold 29). Divisions over whether individual issues are constitutional ultimately unify the participants by highlighting their shared belief in the Constitution itself. In this way, battles for the mantle of constitutionality use the population’s ideological inconsistencies to unify, rather than divide, the country.

In America, the main battleground for constitutional conflicts is the Supreme Court. The first step in most ideological conflicts is litigation: the two sides attempt to show the Court that their position is more consistent with the Constitution than their opponents'. However, when a litigant loses before the Court, rather than accept that his approach is incompatible with the Constitution, he typically adopts the opinion that the Court was mistaken. The blame is placed on “activist” or “politically motivated” judges rather than on a flaw in the Constitution itself.

When litigation fails, the Constitution creed further promotes stability by encouraging defeated litigants to channel their anger into the political process. Since the losing side believes that judicial incompetence or insincerity was the root of its failure, the next logical step is to make sure only “good” judges are appointed in the future. The result is a redirection of potentially destructive energy into civic participation, which implicitly affirms the value of the existing governmental structure.

The Constitution creed preserves the stability of the country as a whole by channeling ideological conflicts into competitions for the mantle of constitutionality. It does so first by providing concerned parties with the option of litigation. When this fails, ideological interests are then channeled into the political process. In this way, the creed re-directs energy from conflicts that are potentially divisive into a framework that reaffirms the value of the Constitution and of the existing governmental structure. There is no need for the involved parties to ever consider that the Constitution or governmental structure itself is problematic. If these parties instead rejected the existing governmental structure it would pose a serious threat to the country's unity.

An Illustration: The Abortion Controversy

Perhaps the most visible example of a contemporary ideological conflict that has been channeled into the constitutional framework is the controversy surrounding Roe v. Wade and the constitutional right to an abortion. Abortion is an issue that, for the last several decades, has consistently elicited strong and often emotional opinions in Americans. Some opponents of legalized abortion equate it to murder and feel a strong moral duty to prevent it. Proponents of abortion rights, on the other hand, may view an abortion ban as gender discrimination. Because it stirs up such powerful emotions, abortion is an issue that could pose a serious threat to the country’s stability. Instead, the conflict has been channeled into the framework of the Constitution creed where it ultimately increases stability by reaffirming both sides' belief in the sanctity of the Constitution and the legitimacy of the current governmental structure.

The two contrasting views on the constitutionality of abortion are exactly those that Arnold describes when illustrating how the Constitution can be used to support opposing sides of an issue (29). Supporters of Roe v. Wade agree with the majority in that case that a fundamental “right to privacy” exists that is expansive enough to cover abortion. This view is essentially the same as the adherence to the “spirit” of the Constitution Arnold describes. By contrast, abortion opponents insist that a strict textual reading of the Constitution (which of course contains no specific mention of abortion) is the only correct approach.

The evolution of the abortion controversy illustrates the mechanism through which ideological conflicts are channeled into the Constitution creed framework. First, abortion opponents attempted to re-litigate the issue. A series of challenges to abortion bans and restrictions have followed Roe (Webster, Casey, Sternberg, etc), and have had some success in limiting abortion rights. Second, the intense emotions surrounding this issue have been channeled into the political process. Pro-life and pro-choice groups concentrate most of their efforts promoting politicians they believe will appoint judges who support their position.

The abortion controversy could have presented a significant threat to national unity because of the strong and incompatible opinions it elicits. Since it has been subsumed into the Constitution creed, however, abortion has instead been a significant driver for civic participation. It has increased rather than decreased interest in the political process and support for the overall governmental structure of the United States. In this counter-intuitive manner, it has been a unifying, rather than divisive, force.


Thurman Arnold is correct in observing that the Constitution sets the boundaries of debate in American society. It is a vital and fundamental creed that protects the overall unity of the country. The purpose of this analysis is to illustrate the mechanism through which the Constitution creed channels the inevitable internal inconsistencies in American culture into a forum that preserves, rather than threatens, social unity. The battle for the constitutional mantle increases civic awareness and participation. It also prevents the result that would be truly damaging to the country: a rejection of government or constitutional legitimacy in its entirety.

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r16 - 22 Feb 2015 - 15:32:02 - EbenMoglen
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