In his second response to Sandy Levinson’s call for a new constitutional convention, Michael Greve cast doubt upon the efficacy of such a project given the mess of our fiscal circumstances. Under present conditions, how could we ever simply focus on the structural challenges unencumbered by current political expediencies? In essence, it’s far too late to hope for the degree of detachment and deliberation that would be necessary from any mere collection of mortals. There is another side to this, though, that links, interestingly, to the whole debate about the nature of history and originalism.
I would like to suggest that the Constitution we have, has taken its place alongside other key documents in the western legal tradition, not because it has preserved inviolate a coherent legal and institutional order, but rather because it has served as a cultural Polaris in favor of the presumption of liberty. In this sense, James Stoner’s contention that we are still within the confines of a constitutional system as originally understood, seems altogether too optimistic. Rather, we have returned to something more like the earlier English constitution. Sandy Levinson’s post affords a nice way to conceptualize that issue.
Professor Levinson’s case is built largely on his observation of structural difficulties even where ambiguity in meaning does not exist. Like Greve, I think the idea of wholesale revision becomes problematic given current circumstances, but the reason I would like to offer has more to do with the limits of our perceptions. What constitutes a particular structural problem? Doesn’t the recognition of a problem itself require agreement as to the operative values necessary for democratic and republican processes of government?
For instance, one person’s understanding of the time required for appropriate political deliberation and transition in government, may be another person’s idea of delay and inconvenience. As our culture continues to change and transform, these disagreements will persist and multiply on a variety of levels. Particular structural provisions are received differently in different contexts. Professor Levinson certainly knows his state constitutions, so I will be curious how he might react to the following:
Arizona’s constitution has many of the same progressive instruments that California’s does, but Arizona’s system functions arguably better, not because those provisions are more clearly written or rationally organized, but rather because Arizona’s political and legal culture is in greater conformity with both the meaning of its provisions and their desirability.
In the Index of the Freedom of the states Arizona ranks 22, whereas California comes in a lousy 48 out of 50. On a national scale, it is hard to believe that structural reforms alone will do much to improve our national culture, or bring us into even greater agreement about what is desirable constitutionally, and might even make things worse by undermining the degree to which cultural coherence yet remains. More troubling for me, however, is the possibility that the Polaris of liberty could itself be obscured or even obliterated.
Originalism has many challenges, not the least of which are the differing interpretations of the Founder’s themselves, yet one thing remains fairly clear: None of the framers or those who attended the state ratifying conventions wanted the unlimited, unconstrained exercise of power. All thought they were affirming a government of laws. And all would have contended that they were furthering the great aim of liberty. Where originalism and history come together is in the uncovering of the constellation of meanings that were coordinated around this essential cultural marker.
If today we have moved beyond the constraints of the Constitution as originally conceived, we can still appreciate the value of their object. If we can appreciate its value, we can still contend for its current efficacy at every point of departure. And we can always raise the question of the prudence of further change with respect to the value of freedom. But if we toss the current document aside, even that limited function could be eviscerated. Against what other polestar then would we measure success and efficiency? By what other measure would we decide what constitutes effective power?
Because of our constitutional infelicities, we have an order that no longer seems to correspond to original intentions however conceived. We have steered our legal vessel, for all intents and purposes, into the British stream. Like them, we will need now to appeal to values of liberty and limited government under law as expressed in the fundamental documents of the western legal tradition even as they have been tossed together with the dross of other subsequent agglomerations. But we can still make the appeal to liberty because of the history that rests at the origins of the Constitution.
We should then affirm our Constitution alongside the other great documents in the history of liberty such as the Great Charter, the Petition of Right, the Declaration of Rights and a host of other liberty affirming statements against unlimited power. As such the Constitution can still serve to remind us of what it means to be free and thereby hold out hope for rebuilding our culture accordingly.