What is Constitutional Obligation

In my book Against Obligation, I argue against political obligation, for permeable sovereignty and accommodation, and against interpretive obligation.1 In the first half of the book, I contend that even citizens in a liberal democracy do not have a general moral duty to obey the law.2 In other words, there is no good reason or set of reasons to obey all laws all of the time, even presumptively. Thus, I reject political obligation. At the same time, I argue for something I call permeable sovereignty, a type of pluralism.3 All of our sources of norms should be considered, at least at first blush, on par with each other and on par with the state's laws. I construct this argument from both my case against political obligation and a case for pluralism, although the latter is less well developed in the book. Since I also believe legitimacy and obligation are correlative, I argue that the state can seek to overcome its legitimacy problem by accommodating, whenever possible, our religious and other norms that conflict with the laws of the state.4In the second half of the book, I reject what I call interpretive obligation in constitutional law. Constitutional interpreters, I contend, need not follow either prior or higher sources of purported interpretive authority, even presumptively.5 Thus, they need not follow original meaning, intent, precedent, or what the Supreme Court thinks the Constitution means now (with an exception for a duty to follow court orders, which is over-determined by arguments for both political and interpretive obligation).Louis Michael Seidman has written a powerful new book, On Constitutional Disobedience.6 Seidman and I agree that present-day constitutional interpreters are not bound, even in a prima facie sense, to prior sources of constitutional meaning. We also agree that at any point in time, the Supreme Court is just one among many constitutional interpreters. Seidman briefly addresses, without resolving, the political obligation question.7 So where do we, or might we, differ?8 Perhaps it is on the question whether the Constitution itself obligates.In Against Obligation I argue against the bindingness of ordinary law and of supposedly authoritative sources of constitutional meaning. I say briefly that those alive at the time of the framing were not bound by the new constitutional order, and thus we today cannot be bound by tethering back to them,9 and I ask the question, "[W]hy this particular constitutional text . . . should be thought to obligate?"10 The book does not seek to answer that question, however, and does not otherwise address whether and how the Constitution as a document, as a text, might be binding.11Much of Seidman's argument against constitutional obedience is an argument against obedience to original meaning or intent. At times he discusses in the same breath obedience to the Constitution as a text and obedience to certain understandings of the Constitution.12 He also argues, apart from any critique of original understanding, against the bindingness of the Constitution as a document, as a text: "Should we . . . feel obligated to obey this deeply flawed, eighteenth-century document?," asks Seidman.13 For example, he discusses Article II, Section 1, Clause 5, which provides, "No person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President . . . ."14 Suppose (falsely) that President Obama "really were born outside the United States," posits Seidman.15 "Why should this matter to us?"16 Later, he claims that "[i]t is ultimately deeply authoritarian to try to end an argument by insisting on the sanctity of a particular text."17We might, though, profitably distinguish obligation to the Constitution as a text, as a governing and structuring document, from obligation to any particular interpretation or purportedly authoritative meaning of that text. Our Constitution purports to place obligations, both positive and negative, on public officials. …