A stifling constitution

In the second annual Murphy Lecture, Professor Stanley Katz took on the daunting task of explaining how America's reluctance to dive head-first into the United Nations human rights covenant system is rooted in its constitutional tradition. Along the way, Professor Katz unearthed a number of features of American political culture and attitudes toward the rest of the world — features at which all of us should take a closer look. What I question is the nature of the relationship he identified between this crucial debate and American constitutionalism itself.

While my objection may seem to make the proverbial distinction without a difference, it does not. Though methods of interpreting the Constitution have gone in and out of vogue and though the document has been pressed into service supporting policies and protections the Framers would never have dreamed possible or necessary, the text of the Constitution (as Professor Katz himself reminded us) has remained an almost mandatory reference point for any policymaker's or judge's explanation of "the American way." No matter how indelibly dyed into the national fabric, any value is in some sense subject to review by its standard.

Professor Katz described the leading role he believes one part of that tradition — the American conception of rights — has played in the human rights debate. Americans, he observed, are distrustful of the kinds of social and economic rights guaranteed by many of the covenants the Senate has rejected. Even so, the all-important question remains: does the Constitution reflect society, or does society reflect the Constitution?

Obviously neither of these models fully explains the complex relationship between the Constitution and American political culture, and I am sure that Professor Katz would agree. But there is a certain danger involved in "constitutionalizing" issues with significant cultural aspects. First, we may be shutting off sources of optimism when we fail to remind ourselves that the constitutional tradition may be able to accommodate a wider set of views than are currently dominant in the public arena.

But there is a second and more powerful reason that hasty conflations of constitutional with cultural traditions should be avoided. On the question at hand, I cannot find sufficient grounds to challenge Professor Katz's pessimism. But given that there are kinds of rights Americans are wary of guaranteeing, we should carefully re-examine our national values, though not as components of an immutable constitutional tradition, the removal of one block of which would send the whole edifice tumbling to the ground. Rather, we should give ourselves the freedom to look at prevalent views on the merits, unconstrained by the talk of precedent and respect for the text that so often stifles constitutional discourse. Infusing constitutionalism with cultural values will, I fear, only make the discussion too clear-cut and less likely to lead to the answers we need to tough questions such as one raised by Professor Katz. Katherine Roberts is from Columbia, S.C. She can be reached at kroberts@princeton.edu.