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Balkinization Symposiums: A Continuing List                                                                E-mail: Jack Balkin: jackbalkin at yahoo.com Bruce Ackerman bruce.ackerman at yale.edu Ian Ayres ian.ayres at yale.edu Corey Brettschneider corey_brettschneider at brown.edu Mary Dudziak mary.l.dudziak at emory.edu Joey Fishkin joey.fishkin at gmail.com Heather Gerken heather.gerken at yale.edu Abbe Gluck abbe.gluck at yale.edu Mark Graber mgraber at law.umaryland.edu Stephen Griffin sgriffin at tulane.edu Jonathan Hafetz jonathan.hafetz at shu.edu Jeremy Kessler jkessler at law.columbia.edu Andrew Koppelman akoppelman at law.northwestern.edu Marty Lederman msl46 at law.georgetown.edu Sanford Levinson slevinson at law.utexas.edu David Luban david.luban at gmail.com Gerard Magliocca gmaglioc at iupui.edu Jason Mazzone mazzonej at illinois.edu Linda McClain lmcclain at bu.edu John Mikhail mikhail at law.georgetown.edu Frank Pasquale pasquale.frank at gmail.com Nate Persily npersily at gmail.com Michael Stokes Paulsen michaelstokespaulsen at gmail.com Deborah Pearlstein dpearlst at yu.edu Rick Pildes rick.pildes at nyu.edu David Pozen dpozen at law.columbia.edu Richard Primus raprimus at umich.edu K. Sabeel Rahmansabeel.rahman at brooklaw.edu Alice Ristroph alice.ristroph at shu.edu Neil Siegel siegel at law.duke.edu David Super david.super at law.georgetown.edu Brian Tamanaha btamanaha at wulaw.wustl.edu Nelson Tebbe nelson.tebbe at brooklaw.edu Mark Tushnet mtushnet at law.harvard.edu Adam Winkler winkler at ucla.edu Compendium of posts on Hobby Lobby and related cases The Anti-Torture Memos: Balkinization Posts on Torture, Interrogation, Detention, War Powers, and OLC The Anti-Torture Memos (arranged by topic) Recent Posts Fall Reading I: Our Undemocratic Constitution
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Tuesday, September 05, 2006
Fall Reading I: Our Undemocratic Constitution
Mark Graber
Readers of Balkinization (and numerous academic listservs) will no doubt be familiar with Professor Sandy Levinson's frequent phillipics against the Constitution of the United States. Fortunately, Sandy has recently converted these polemics into a fascinating book, OUR UNDEMOCRATIC CONSTITUTION: WHERE THE CONSTITUTION GOES WRONG (AND HOW WE THE PEOPLE CAN CORRECT IT). Sandy can take full responsibility for convincing readers that they must crusade for a new constitutional convention. As his acknowledgements indicate, I plan to sit out that movement. Nevertheless, a great many reasons exist for reading this fascinating and very readable manuscript beyond the Millian claim that reading attacks on established truths can promote vital reminders of the foundations of those truths.
Comments:
i agree with you that a constitutional convention might provoke a major crisis, especially with extremists on both sides of the aisle leading the fight. for this reason, my gut reaction is also to sit out that fight, and work not to create a new constitution, but to ensure that the one we have works better for all.
on the other hand, i don't agree with your analogy that this is similar to discovering that your car has poor brakes. other than being careful driving down hills or trading in the car or not driving it at all, there is another and more logical alternative... FIX THE BRAKES!
Some thoughts on a con-con:
1. We're currently at a level of polarization and paranoia where any close election seems to produce all manner of conspiracy theories to explain why the losing side "really" won. I can only imagine how ugly it will get when everything, bar nothing, is put up for grabs. 2. Further, there's no particular reason to suppose that a constitutional convention would produce the kind of result the lack of which has been driving complaints about the Constitution being "broken". For instance, Daniel Lazare's repeal of the 2nd amendment is extremely unlikely to come out of a con-con, unless it was wildly unrepresentative. No, the most likely changes can be seen by looking at those measures which were so popular with the public that Congress had to make a show of acting on them, while being so unpopular with the political class that only a show could be permitted. A ballanced budget amendment, term limits, probably a marriage amendment. 3. The biggest problem with a constitutional convention is that the Constititution doesn't specify how the delegates are to be chosen. And Congress has gotten so reluctant to let the states have any say in the matter, that it seems to me almost a forgone conclusion that in the event a con-con was called, Congress would move to frustrate it. Either by simply refusing to respond to the call, (And counting on the courts to declare the matter "non-judiciable"; Another clause of the Constitution then bites the dust.) or be deciding that there could be no better delegates than... the members of Congress! ******** However, I have reluctantly come to the conclusion that for all the risks, a constitutional convention is worth it, if only as a way to "reset" the judiciary's "constitution" to agree with the written one. I doubt even the most ardent "living" constitutionalist would dare to declare that the Constitution no longer meant what it did when ratified, if it was ratified last year...
I doubt even the most ardent "living" constitutionalist would dare to declare that the Constitution no longer meant what it did when ratified, if it was ratified last year...
Sure, but wouldn't this re-set the "originalist clock" to the present date? Seems to me it would moot all debate until we got far enough into the future for differences to arise again.
It would certainly "reset" the originalist clock with respect to any constitutional clauses that ended up being changed. And I fully expect that many parts of the Constitution would end up being altered to embrace current practice. Even where I disapprove of current practice on policy grounds, this is a good thing, representing a restoration of the rule of law... A rule which "living" constitutionalism has stretched to the breaking point, and beyond in some instances.
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But I can't agree that the "clock" would be reset for clauses not amended. Rather, I'd take the position that, with a straightforward opportunity to adjust text to practice, any failure to do so in specific areas should be construed as a rejection of practice. We have a con-con, I expect all those "changes" to be brought up as proposed amendments, and if they're not, it's a tacit admission that you don't think they're popular enough to be ratified.
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