Sandy Levinson on Our Constitution

It is a pleasure to comment on Sandy Levinson’s Jeffersonian Proposal for the Constitution (as well as on Richard Epstein’s brief comment on it).  I find myself somewhere in the middle in this debate.  I agree with Sandy that our Constitution should be revised, but I agree with Richard that many of the changes Sandy wants to make would not be good ideas and that an unlimited convention would be a bad idea.  Rather than convening a convention that would replace or radically revise our constitution, I prefer to use the amendment power.

I am an originalist and so I favor significant use of the amendment process.  Does that sound paradoxical?  Not at all.  If one wants the Constitution’s original meaning followed, then necessary constitutional change must come from somewhere else than the courts.  The best place is the supermajoritarian amendment process, which has many virtues.

Therefore, I agree with Sandy that we should be assessing the wisdom of our Constitution.  My assessment, however, differs significantly from Sandy’s on many issues.  But not all of them.  So I agree with him that we should introduce 18 year (or 13.5 year) term limits for Supreme Court justices.  I also agree that the Constitution might include some elements of direct democracy, as I have proposed that certain constitutional amendments should be ratified by a vote of the people of each state.  And I agree that we should further limit (through supermajority rule) the power of lame duck Congresses – a power shamefully exercised most recently by Democrats in December 2010, but also by Republicans in their December 1998  impeachment of President Clinton.  And let’s not forget that CERCLA, one of the worst statutes ever passed in my book, was enacted by a lame duck Congress in 1980.

But I disagree with Sandy on other matters.  Sandy objects to the fixed four year terms for Presidents.  While that has some bad features – I would have liked to fire President Obama in 2010, if it were possible – there are strong arguments for allowing a President enough time to accomplish some objectives without having to worry about being turned out of office prematurely.  (I also disagree with him about California, but that would take us too far afield.)

One of my strongest disagreements involves Article V.  Unlike Sandy, I don’t believe that the Constitution’s amendment provision is necessarily too strict.  It is strict, but that strictness produces significant benefits.  Sandy states that “the U.S. Constitution [is] the most difficult to amend constitution in the entire world.”  Let me say that this is by no means clear.  In conversation, Sandy has told me that he bases this claim on Donald Lutz’s article on the subject.  But there are real problems with Lutz’s results.  First, his methodology for comparing constitutions is problematic, as it relies to a significant degree on his own judgments, rather than precise measures.  Lutz also neglects important matters.  For example, he ignores that some constitutions, such as those of Germany and Portugal (and India by judicial decision), do not allow amendments at all of a significant number of important provisions.  Even ignoring these problems, he determines that the United States is in the same ballpark as two other federal republics – Switzerland and Australia – in terms of difficulty of amendment.  I agree with Sandy that it would be good to know about the relative difficulty of the amendment provisions of the constitutions of the world, but I don’t think we have clear answers to that question now.

But even if turned out that the United States Constitution was the most difficult to amend, that wouldn’t mean it was too strict.  Many people point to the fact that so few amendments have passed, as evidence of its excessive stringency, but I place the responsibility not on the amendment process, but on nonoriginalism.  Every time an amendment might have passed – for example, during the New Deal, during the environmental decade of the 1970s, the proposed ERA – the Supreme Court has stepped in to “update” the Constitution, thereby superseding the amendment process.  If we had an originalist Supreme Court, I predict that many more amendments would have been enacted.

But my main point of disagreement with Sandy is where he wants to take the Constitution.  Unless I misunderstand his politics, he would take us to a constitutional regime that would move us closer to the social welfare states of Europe.  That’s not the direction we should be moving in.  Rather, I would favor additional checks on the federal government (and the states), such as restrictions on federal spending, debt, and regulation.  Some of these restrictions don’t pass, not because they are unpopular, but because Congress has an effective veto on the constitutional amendment process.  For another constitutional amendment I support that would fix this problem, see here.

If I understand him correctly,  Sandy wants radical revisions in the Constitution through an unlimited convention.  I oppose that, since I think the Constitution is a good document and don’t want to risk losing its good features.   Nor do I want to lose the attachment that comes when a nation has enjoyed the benefits of a constitution for more than two centuries.  But I also oppose an unlimited convention because of the tremendous uncertainty that such a convention would bring.  Such a convention could easily result in a worse constitution, especially since I suspect that Sandy believes that a convention could depart from the ratification method in the existing Constitution.

Let me end by warning Sandy to be careful what you wish for.  You might like what results from such a convention.  But you might not.

Mike Rappaport

Professor Rappaport is Darling Foundation Professor of Law at the University of San Diego, where he also serves as the Director of the Center for the Study of Constitutional Originalism. Professor Rappaport is the author of numerous law review articles in journals such as the Yale Law Journal, the Virginia Law Review, the Georgetown Law Review, and the University of Pennsylvania Law Review.  His book, Originalism and the Good Constitution, which is co-authored with John McGinnis, was published by the Harvard University Press in 2013.  Professor Rappaport is a graduate of the Yale Law School, where he received a JD and a DCL (Law and Political Theory).

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Comments

  1. Eric Hodgdon says

    A Required Realization and Acknowledgment

    In reviewing these three, Sandy Levinson’s Jeffersonian Proposal for the Constitution, and Richard Epstein’s brief comment on it, and Mike Rappaport’s on both, they fail to address the missing factor of our discontent.

    Congress has bypassed Article 1 Section 2 in terms of the designed numbers in representation. 100 years without an increase in representation. How can the same number represent three times more population? Moreover, the decline in representation started some 170 years ago. It’s not that hard to figure out some of the reasons, but to continue on this path, without the slightest note, is dangerous.

    The Republic, what’s left, sinks from Congressional transference of our authority, without our consent, to the executive. This is not constitutional, nor intelligent. Without proper respect shown to those whom government was created for, unknowns exist without parallel since we are in un-constitutional times – without accredited law.

    Regardless of the viewpoints of today’s academics, and their sparing over issues of some merit, without addressing the fundamental necessity of increasing the numbers in the House to reasonable and designed amounts, we as a nation do not exist. We are not part or party to what has already transmogrified, but is still called, the Constitution.

    With rhetoric increasing over the issues of today, the distracting headlines, the worked over topics, all somewhat trivial, and for what? What have the lives of our dead solders been for? Not for what we have now, I say. We need to fix this. It requires no amendments. It requires little, but for all of us to make it clear –
    No Taxation without Representation. A tried and true slogan.

    The steady nature over the past 100 years is one which occurred with my concern, and may be, the effects, and not causes, of ills we have today. What else has gone on all these years? What else? What occurs when there is no valid and workable oversight? What happens when the views of a few take hold – without proper review?

    But again, nowhere in these articles is there a concern about yourselves, family, and those which came before on being marginalized over the centuries by way of Congressional corruption in removing the people, us, from any real and meaningful effect over the Federal government of today.

    • says

      Thanks for your thoughtful reply. No one is ugsgesting that the government be infused with religion. That is absurd.But the Federal government should not take on a role of actively opposing expressions of religious freedom. The recent shift in language towards protecting the right of worship , versus the broader definition described in the Constitution is the most troubling trend in regards to the definition of the Freedom of Religion. While it may seem a question of semantics, opponents of our Consitutional freedoms have doen a masterful job of manipulating the language around these key issues.The 1st Amendment was not written to remove religion from the public square. But that appears to be the agenda of progressive politicians and judges. I would think this endangers the free expression of religion much more than a nativity scene in front of a puiblic building.

  2. sanford levinson says

    Mr. Hodgdon makes a very interesting point. Although the workload of Congress has gone up remarkably over the past fifty 100 years, some of generated by the sheer increase in population, some by the enhanced powers (and responsibilities) of the national government, the “workforce” has remained constant since the admission of Hawaii in 1959 gave us our present 100 senators. He is correct that nothing in the Constitution prevents Congress from increasing the numbers of representatives (though one can only imagine the political blood that would be split with regard to establishing winners and losers), but that’s not the case, of course, with regard to the Senate. I detest the principle of equal representation in the Senate that gives Wyoming the same voting power as California or even Vermont (probably my own favorite state, given my politics) the same power as Texas’s two senators, neither of whom I would ever vote for. But perhaps even fans of the Senate might agree that we’d be better off with three senators per state instead of the constitutionally stipulated two, given the increased responsibilities faced by modern senators. Every state could elect a senator every two years, rather than, as at present, only in two of three election cycles. Yet that would take revving up all of the machinery to accomplish a full-scale constitutional amendment and require, to at least some extent, aknowledging that the present Constitution is less than perfect.

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