Over the weekend, I attended a great conference at Stanford Law School entitled, A Big Fix: Should We Amend Our Constitution. The idea for the conference was to have various people propose constitutional amendments. Some years ago, I proposed a constitutional amendment of my own as part of the Room for Debate feature of the New York Times. See here and here. My job was to comment on Sandy Levinson’s proposed amendments to the Constitution. While Levinson proposed various provisions, his most interesting proposal was for constitutional amendments to be enacted through direct democracy. Under Levinson’s proposal, 10 percent of those…
The threatened filibuster by the Democrats of Judge Neil Gorsuch seems irrational if its purpose to help create a Supreme Court more friendly to Democratic commitments. Almost everyone expects the response by the Republicans will be the so-called nuclear option by which they use their majority to end the filibuster rule for Supreme Court nominations. The Republicans believe that filibustering a mainstream judge in the first year of a President’s term is illegitimate. Given that in 2013 the Democrats eliminated the filibuster for lower court and executive appointments, they will also regard themselves fully justified in taking a similar action themselves. And the Republicans will be acting within their constitutional rights: as Mike Rappaport and I have shown, the Senate majority must have the authority to change supermajority rules by majority vote.
The elimination of the filibuster leaves the Democrats in a worse position for the rest of President Trump’s term. The most obvious reason is that they then cannot filibuster the next nomination— the one likely to fill the seat of Justice Ginsburg or Justice Kennedy.
Over at Balkinization, Sandy Levinson makes some typically provocative claims about Justice Scalia:
So in rereading Justice Scalia’s fulminations, I was struck by the following sentence: “Article I contains no whatever-it-takes-to-solve-a-national-probem power.” This is, of course, typical Scalia, clever phrasing that lulls the reader to say “of course.” . . . Still, isn’t Scalia’s exuberant pronouncement directly at odds with what Felix Frankfurter once called the most important single sentence(s) in the canon, beginning with John Marshall’s statement in McCulloch (the most important single case in our canon) that “we must never forget it is a Constitution we are expounding.” . . .
So the question is whether Scalia (and his admirers) must admit that their real enemy is not “Progressive-era” living constitutionalists, but “the Great Chief Justice” himself. Can one possibly have genuine respect, let alone “veneration,” for a Constitution that is proudly construed to deny Congress the ability to solve a serious national problem? Must the Scalian theory of a “limited government of assigned powers” be adhered to though the heavens fall? . . . One further possibility, of course, is that he does not actually believe that the health care issue in the US presents a real problem, so what is actually coming out is his particular brand of conservative politics.
Over at the New York Review of Books, Justice Stevens writes an interesting review of Sandy Levinson’s new book Framed. Stevens writes a balanced review, but he disagrees with Sandy’s recommendation in favor of a constitutional convention.
Interestingly, Stevens also disagrees with Sandy’s attack on the compromises that produced the Constitution — compromises that allowed slavery to continue and permitted an equality of state power in the Senate.
Sandy Levinson has once again written a piece, The Imbecilic Constitution, about how bad the U.S. Constitution is. Since I believe that the goodness of the Constitution is a powerful reason for following it, I strongly disagree. I have critiqued Sandy’s claim’s before.
But if one must choose the worst single part of the Constitution, it is surely Article V, which has made our Constitution among the most difficult to amend of any in the world. The last truly significant constitutional change was the 22nd Amendment, added in 1951, to limit presidents to two terms. The near impossibility of amending the national Constitution not only prevents needed reforms; it also makes discussion seem futile and generates a complacent denial that there is anything to be concerned about.
It was not always so. In the election of 1912, two presidents — past and future — seriously questioned the adequacy of the Constitution. Theodore Roosevelt would have allowed Congress to override Supreme Court decisions invalidating federal laws, while Woodrow Wilson basically supported a parliamentary system and, as president, tried to act more as a prime minister than as an agent of Congress. The next few years saw the enactment of amendments establishing the legitimacy of the federal income tax, direct election of senators, Prohibition and women’s right to vote.
Sandy assumes there are no amendments in large part because it is so difficult to amend the Consitution. I disagree.
Editor’s Note: Two weeks ago Sandy Levinson argued in a post entitled “A Jeffersonian Proposal for the Constitution” that we must revisit in a very Jeffersonian fashion of experiment and innovation the supposed failures of our Constitution and be willing to build anew where necessary. This post by Lino Graglia evaluates Levinson’s proposal.
Sandy Levinson could not be more mistaken in stating that “everyone will agree that the task at hand is to figure out how the existing Constitution should be interpreted.” As a hard-core realist, he is fully aware, and no doubt will readily admit, that the Constitution has almost nothing to do with constitutional law. Does anyone really think that there is a constitutional right to have an abortion because of how Justice Blackmun interpreted “due process”? Texas can’t prohibit sodomy and the states can’t have term limits on congressmen not because of the Constitution, but because Justice Kennedy, the American ayatollah, chose to vote with the liberals in those two cases. Congress can’t limit campaign contributions, Seattle can’t consider race in school assignments, and we have an individual right to own guns, because Kennedy chose to vote with the conservatives in those two cases. The justices split 4 to 4 so consistently, regardless of the issue, because of their conflicting ideologies, not different abilities to read the Constitution. The obvious truth is that no controversial ruling of unconstitutionality depends on constitutional interpretation. (Incidentally, Article One does not say “all powers,” it says “all legislative powers”)
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.
I welcome Sandy Levinson’s acknowledgment that rights should be off the table for any hypothetical constitutional convention; the gig should be about structure only. On those issues, Sandy suggests, we can put ourselves behind a veil of uncertainty. Can we, with respect to any institutional issue that actually matters? Let’s start with a certainty: the country is going broke—not in some distant future, but now. (It may be crass to inject that concern into a high-falutin’ constitutional debate; but then, this country started with a debate over debt and taxes.) Debts for Social Security, Medicare, and Medicaid will not be paid,…
Like uncounted others, I am tremendously fond of the walking paradox that is Sandy Levinson—the kindest, most generous soul you’ll ever meet, who picks constitutional arguments with the gusto of a barroom brawler. It’s a great pleasure that of all the gin joints in the world, he has walked into ours. As one of the regulars, I have a few responses to his provocative post ; I’ll let Sandy pick the points he’d like to pursue.
We share a common point of departure: an excessive preoccupation with “meaning” has tended to crowd out argument over the Constitution itself—its “wisdom.” I also agree that the Founders invited that argument. They knew (and they said) that the document was imperfect, and they created an amendment process to iron out the mistakes.
I’m inclined to think, and Sandy seems to agree, that the process has actually worked quite well with respect to the Constitution’s mechanics (the “Constitution of Settlement,” in Sandy’s phrase). Sandy’s favorite example, the Twentieth Amendment, has a bunch of cousins: the Twelfth Amendment, which fixed the obviously dopey (and near-catastrophic) presidential election mechanism; the Twenty-Second, Twenty-Third, Twenty-Fifth, and Twenty-Seventh. Arguably, you can add the Eleventh Amendment. Surely, you should add the amendments that have made the Constitution more “democratic” in Sandy’s sense: the Seventeenth, Nineteenth, Twenty-Third, Twenty-Fourth, and Twenty-Sixth. I would certainly add the Sixteenth Amendment, providing a broad exemption to a tax apportionment requirement that is absurd as a matter of federalism theory, at war with the constitutional principle that the federal government governs citizens (not states), and explicable only as part of the slavery bargain.
You can argue that the amendment process is too hard. I’m not going to join the “hardest in the world” debate because I can’t think of a plausible metric. Australia is notorious for failed amendments—because its process is even “harder” than ours? Because most of the proposals, like the tidal wave of proposed amendments in this country, were irredeemably stupid? But I do have several responses to the “too hard” claim.