watertight compartments” rather than in a “penumbra shading gradually from
one extreme to the other.”
125
That formalist tendency lamented by Holmes persists today and manifests itself
in Arroyo’s frequent recourse to the manipulation of doctrine as subterfuge, and the
equally formalist backlash by those who oppose her. The past decade did not
flourish the Filipino’s commitment to constitutional values but rather merely
confirmed his deep-seated aversion to open-ended substantive debate and his
preference for the false security of textual literalness.
The new government of Aquino has opened the door to a more candid debate
not about what is constitutional or not, but about what is or is not socially or
morally desirable, and has carried this out not just through unelected judges but
even more actively through the elected deputies of the people. However, this does
not necessarily reaffirm constitutional norms but may in fact expose these norms to
being buffeted by the shifting winds of public opinion.
One role of constitutions is to connect us with our nobler selves and, through the
logic of precommitment, structure our choices so that we are forced to balance
narrow self-interest, construed day by day, against a broader self-interest that is
both enlightened and long-term. To this extent, constitutional discourse in the
Philippines has largely failed because it was seen as merely as an instrument of
the petty politics of power, and the challenge is to enlarge the arena where it serves
as the lodestar of a deeper politics of norms.
(^125277) U.S. 189 ( 1928 ).