The Constitution and the Charter

Over at Balkinization, Sandy Levinson has a post noting that people in the U.S. are willing to speak openly about the defects of the UN Charter (that it gives Russia and other security council members a veto) whereas they are not willing to acknowledge defects in the Constitution.  Instead, Sandy writes that they display a “ridiculous veneration . . . toward our own flawed Constitution.”

It is worth noting, however, one likely reason for this divergent response.  In the U.S., the people generally support vigorously the Constitution.  By contrast, the public does not have much support for the UN or the Charter.  So the government and other commentators’ statements are responsive to public opinion.

As a result, people who do not like the Constitution do not normally (Sandy is an exception) open acknowledge their attitude.  Instead, they make believe that the evolved Constitution is the real Constitution.  The early progressives were open about their disdain for the Constitution, but the later left recognized that a political program of claiming to enforce the Constitution was much more popular.

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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  1. John Ashman says

    Mr Levinson obviously doesn’t even understand the basic concepts behind the Constitution, which is why he makes sad commentary.

    The Framers knew that dangers inherent in mob rule, and concentrated power and were far wiser people than those who criticize their work. It’s easy to criticize great works with misunderstanding and miseducation.

    • Kevin R. Hardwick says


      Before we cast stones at Levinson, it would be useful to know with greater precision those of his claims to which we are objecting. It is easy to cast stones, especially when we are at several steps remove from the actual arguments being made.

      Here, for example, it would be helpful to know why Levinson thinks that our constitution is flawed. Having read Levinson, I have a rough idea of what he is pointing to here–but note that in Rappaport’s summary above, the only information we are given is (correctly) that Levinson thinks our constitution has some serious problems.

      Since I believe that a.) nothing human is perfect, and b.) the constitution is the work of humans, I therefore conclude, a priori, that c.) the constitution is not perfect. I would be surprised if you disagree with this syllogism. So the issue here, very likely, is not the claim that the constitution is flawed, as, per above, we can all agree that it is. Rather, if we wish to claim that Levinson is wrong, we need to know in what particulars he believes the constitution is flawed.

      I point this out in the interest of fairness, since from other comments elsewhere on this board, I believe you share that value with myself and numerous others. I should add that I disagree with Levinson in a variety of places–my concern here is not that we endorse his argument, but rather that we reject it for the right reasons.

      All best,

      • John Ashman says

        Hi Kevin,

        Two of the complaints that Levinson launched in the referenced paragraph were that the Constitution wasn’t democratic enough. But as we know, democracy is two wolves and a sheep voting on what’s for dinner. So the Constitution builds in protections for individual, natural rights, so that democracy is not unlimited.

        He also seems to dislike the 10th Amendment, and the idea that powers must be delegated. That the Constitution makes it “difficult” to pass laws, which is rather ridiculous. It’s quite easy, but the laws that may be passed are purposely limited to specific duties, so that laws are actually much EASIER to pass at the state and local levels where there will be more regional/local consensus on priorities.

        So, I stand by my comment that he has a very poor understanding of how the Constitution works and why. He says he wants to bring democracy to Washington, but democracy was never intended to be solely in Washington, it was largely intended to be local, where people have a real stake and a real voice.

        • Kevin R. Hardwick says


          As I read the essay by Levinson in aljazeera, the main argument is that we face a constitutional crisis if the President ignores the will of congress and executes military action against Syria. And the president may do so because the the legislative branch is, Levinson argues, broken. Thus, Levinson writes: “What if the President’s defenders emphasized . . . that the American system of government is sufficiently broken that we ought not to expect presidents to be fully bound by its forms in matters of the highest national importance.”

          This may or may not be a wise or sound argument–but I do not see how it adds up to a “poor understanding of how the constitution works.” Where is there a failure to grasp here the constitution’s importance in protecting individual, natural rights?

          It strikes me as likely I am missing something. Help me see your point?

          Well wishes,

          • John Ashman says

            “””The United States Constitution fails two essential twenty-first century tests. First, it is strikingly undemocratic. When United States presidents, whether George W. Bush or Barack H. Obama, talk about the American commitment to spreading “democracy” around the world, they never engage in serious discussion of what that term actually means — and whether the United States is adequately “democratic.” The United States has a political system that was intentionally designed to make it difficult, at best, to pass any legislation at all. It may be wise to constrain legislatures, but making it difficult to legislate does not promote “democracy.” Secondly, and perhaps more importantly, the Constitution plays an important role in the “crisis of governability.” This crisis can be measured both by the widespread contempt that most Americans, regardless of political persuasion, have for Congress — even the most “favorable” recent poll shows that only 20 percent of all Americans “approve” of Congress, while over 70 percent “disapprove” — and by the altogether correct view that the Congress is basically incapable of passing legislation that responds adequately to any of the great challenges facing us today. This almost inevitably leads to greater calls for action by the Executive Branch. “””

            For one thing, it isn’t a flaw, because they never intended the US to be “democratic”, because democracy can only be as perfect as the 51%.

            Further, it’s blatantly obvious that when people say “democracy” today, we mean “democratic elections within a representative government structure”. He knows it, we know it, but he acts as though no one knows what is meant.

            Further, Congress is only tied up and ineffective because it tries to do approximately 3-4 times its delegated duties, which creates massive partisanship and strife. This, of course, a consequence of HIS OWN preferred misunderstanding of the Constitution. This is a typical liberal circle. They lament the problems caused by their own demands, yet shift the blame elsewhere, absolving themselves of culpability. That liberalism is closely related to narcissism is another topic, but he displays it quite well in this article.

            Remember, he said that the Constitution DELIBERATELY makes it hard to pass legislation. That is nonsense. It makes it hard to pass unconstitutional legislation, not legislation that is the actual duty of Congress. Congress makes it hard to pass legislation because they always drift towards passing laws that are beyond the limits of their power, the interests of the People and the limits of mass approval. That most laws pass with slim majorities is not the fault of the Constitution, but the fault of humans.

          • John Ashman says

            Also, keep in mind that he has elsewhere stated that the 2nd Amendment does not in any way limit the government from infringing on the right to bear arms, believing that the right comes from government and is subject to democratic will. This demonstrates a tremendously poor understanding of the Constitution.

      • John Ashman says

        Also, as you can see here, – many of his positions are absurd, and his affiliations are enlightening. He is a “card-carrying ACLU member” which means that he believes that rights come from government, not nature, God or birth, and he thinks the 2nd Amendment doesn’t in any way guarantee any right to keep and bear arms, despite what it says.

        So, yeah, I like how they say he’s an “acknowledged expert”, but I acknowledge no such thing. When you start with a ridiculous assumption and take it to a ridiculous conclusion, no amount of study or pontification makes you an expert. I have other words for that.

      • John Ashman says

        Also, I would say that there can be no such thing as a perfect Constitution, of course, so criticizing it for being flawed implies that perfection is somehow possible. The Framers believed that rights come from nature, birth and/or God, not from man, not from society, not from government, so by following the line that the latter is true, one completely misunderstands the document, because you believe it is fundamentally flawed on pure concept and in any case, understanding something requires a certain amount of acceptance that “it is what it is”. How do you become an expert on latin if you refuse to accept the grammar?

        • Kevin R. Hardwick says


          You cannot believe that “criticism” of something man-made implied that it can be perfect. That is a non-sequitor. As Chief Justice Coke said in the 17th century, the common law is not natural law and never will be. But it does get closer to natural law over time.

          Even if we reject that kind of whiggism, it is still possible for a person to offer constructive criticism to improve just about anything that is the product of human endeavor. Criticism does not imply perfectability.

          • John Ashman says

            I think when you call something “flawed” because you don’t like it, you imply that when you like it, it will not be flawed, ergo, perfect.

            Otherwise, what it has isn’t a flaw, but simply something you would prefer to be different. It’s like saying “the flaw in this woman is that she is blonde”. That’s hardly a flaw, simply a difference. I don’t see flaws in the Constitution. I see people that simply refuse to understand it, or simply don’t like it.

          • Kevin R. Hardwick says


            I trust that we can agree that baseball is a game that is all about human imperfection. It is a game, after all, in which even the best hitter fails six times out of ten. Chris Davis is a player for the Baltimore Orioles who is currently leading the league in Home Runs. But I think he would be a better hitter if he would stop pressing to hit every hit out of the park, and instead would attend to be a more well rounded hitter.

            I believe Davis is a flawed hitter. I think he would be a better hitter if he would change his approach to the game. His approach is flawed–he is, like every baseball player, a flawed hitter. But he could be a somewhat less flawed hitter if he would stop trying to make every contact with the ball into a home run.

            I would hope it is obvious that in saying this, I am not saying that Davis is or can ever be a perfect hitter.

            Criticism simply does not equate to an implication that anything human ever can or will be perfect. It is a category error to assert otherwise!

          • John Ashman says

            Sorry, still disagree. I think he does have in mind what a “perfect” constitution might be, which is possible when it only has to be perfect for one person.

            The only flaw that I can imagine is if the Constitution is at odds with itself on specific issues. If the Constitution has a flaw, it’s that it is enforced by humans with different agendas and different beliefs with respect to following it. So, perhaps rewriting it to make it clear enough even for the dullards would be great, but even then, they still can’t understand things like “shall not be infringed” or “Congress shall make no law”.

          • John Ashman says

            Plus, I think, it’s ridiculous to call it flawed where others think it’s just fine. I would think a “flaw” would be perceived somewhat universally as an actual defect, not someone’s own personal preference.

          • John Ashman says

            Further, the Constitution allows California to be a perfect democracy, as long as they don’t trample individual rights, so his theory that it is not “democratic” enough is pretty silly, unless he doesn’t recognize natural rights at all. He claims he does, but yet, his statements are at oddsd with that.

          • Kevin R. Hardwick says

            And here I was thinking we were talking about Chris Davis and baseball. I am not sure just what you disagree with in the example I gave.

            I am not interested here in constitutional particulars. I am interested in your categorical assertion that all expressions of criticism imply that a commitment to perfection. This strikes me as a categorical error that is logically and a priori false.

            SOME criticism may imply a commitment to perfection. But the notion that all criticism implies perfection is absurd.

      • John Ashman says

        Or perhaps it’s someone who speaks Latin, reading English for the first time, assuming he knows what it means, and spending his life time talking about what it means and ignoring anyone who tries to explain to him that he doesn’t understand it like he assumes. I may test this assumption.

  2. libertarian jerry says

    Many of the mistakes made throughout history by governments of men were partially corrected by the founders of America and their original Constitution. The problem was that in order for the system to work we needed a nation of moral statesmen. Over time this morality was lost and replaced with the drive for political power. Thus the door was left open to change,modify and alter the original Constitutional document to the point of losing it’s original intent. Over the past 225 years of alterations,the Constitution no longer serves its original intent because it has been changed to the point of being killed off by a thousand cuts. In essence,the present welfare/warfare state empire could not exist if the original Constitution was still alive and enforced. In reality,the Constitution is a dead letter sitting on a dusty shelf. It has come to the point that statists of both the Left and the Right no longer even treat the Constitution as a bump on the road to power. The statists and collectivists have come to the point where,to them,the Constitution doesn’t even exist.

  3. Mike Rappaport says

    Kevin, I am not sure to whom your comment was directed. As for my post, my point was not to say that the Constitution was good, but that the reason why politicians and other commentators did not criticize it was that most people believed it was very good.

    I quite agree that disagreeing with Levinson’s opinion about the Constitution requires a longer analysis, some of which I have actually posted on this blog some time ago.

    • Kevin R. Hardwick says


      Not trying to take you to task at all–my comment was directed to John. I thought your post was both cogent and lucid–apologies if I wrote unclearly (easy to do in this kind of setting). John has done a good job replying to my observation–but I did not think it was obvious from his first post just what positions it was in particular that he was attributing to Levinson.

      All best wishes,

    • John Ashman says

      I think the left has become frustrated with the fact that they have pushed the Constitution so far that both SCOTUS and the American people are starting to push back, so it has become increasingly popular for “legal academics” to come out of the closet and openly showing their disdain for the Constitution.

      Good. Let’s have an honest fight about it and see who is on the losing side when all the cards are on the table.

  4. says

    I found each and one of John Ashman’s responses right on target regarding Sandy Levinson. I would like to add a comment of my own in regards to the 2nd Amendment mentioned by John A. (Not as a correction – rather as ‘in addition to’ when John A. says, “he (Levinson) thinks the 2nd Amendment doesn’t in any way guarantee any right to keep and bear arms, despite what it says”. We should be cognizant of what ‘Cruikshank’, some number of years after the Fourteen Amendment, rendered. In reading the 1875 decision, the U.S. Supreme Court justices stated that the Second Amendment . . . “Was not a right granted by the Constitution . . . nor dependent upon it. It was an amendment that restricts the powers of the national government”. (Leading us, of course, to the Federalism Compact to the States and the people of the 9th and 10th Amendments.)

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