"Operating an Eighteenth Century Constitution in a Twenty-First Century World"

Mark Graber

Last December, the University of Maryland School of Law held a constitutional schmooze, a new kind of academic conference where the emphasis is on conversation rather than the delivery of formal papers. Our subject was "An Eighteenth Century Constitution in a Twenty-First Century World," a rather obvious reference to fascinating work being done by Balkinization's own Sandy Levinson and Kim Lane Scheppele, as well as numerous other scholars working on the borders between law, political science, history, and philosophy. The University of Maryland Law Review will soon be publishing some short pieces coming out of this event. I will be writing the introduction, but as a template for some ideas I produced this for our alumni newsletter. Given how often the issues appear on our blog, I hope people find the ideas interesting and provide feedback so I may avoid the errors below in the longer version.

Americans celebrate everything new but national constitutions. We praise all novelties other than novel constitutional provisions or novel constitutions. Our national reverence for an ancient, eighteenth century constitution does foster certain desirable political ends in the twenty-first century. A political culture which venerates inherited rules for choosing lawmakers and inherited rules for making laws is likely to be a stable political culture, and stability is the first virtue of political institutions. Still, even Edmund Burke did not favor blind worship of the status quo. Constitutional commentary limited to praising or perfecting the Constitution of the United States is likely to mask defects that should not be praised and cannot be perfected. At the very least, citizens who insist on conserving constitutions ought to be self-conscious about what is being conserved.


Recent scholarship on American constitutionalism highlights two distinctive problems with strict adherence to an eighteenth century constitution in a twenty-first century world, while discounting what may be a more disturbing failing. Citizens in the twenty-first century may reject some values underlying an eighteenth century constitution. Eager to demonstrate fidelity to the constitutional past, interpreters may imagine purposes behind constitutional institutions that the framers never imagined and which those institutions do not serve. An eighteenth century constitution may not address twenty-first century problems. Eager to preserve the authority of the ancient text, interpreters may engage in imaginative exercises about how white men in bad wigs would have answered political questions that were beyond their capacity to conceptualize. While these concerns with how citizens interpret the constitutional text are important, they may mask broader problems in the constitutional culture. The sort of citizenry that could successfully manage an eighteenth century constitution in an eighteenth century world may not be the sort of citizenry that can successfully manage an eighteenth century constitution in a twentieth-first century world. Scholars who worry about whether the constitution is failing the people might also worry about whether we as a people are failing the constitution.

As Professor Sanford Levinson famously points out in Our Undemocratic Constitution, prominent constitutional institutions were designed to secure ends most contemporary Americans regard as abhorrent. The need to accommodate slavery helps explain why the framers favored proportional representation in the House of Representatives, presidential appointments of federal justices, and the electoral college. The best justification of these practices at present is probably that all democratic institutions have their flaws and that fixed rules that meet some very low democratic threshold may be better than a more fluid system that can be easily manipulated by otherwise transient majorities. The high priests of American constitutionalism, however, cannot stomach the thought that the framers might have created a fairly stable constitution as long as they established any rules, no matter what those rules were. Thus, the electoral college is now considered to be a means for ensuring that candidates do not focus on a few large states, even though any high schooler of above average intelligence could devise a more democratic system for electing the president that served that or other ends now imputed to the provisions in Article II governing presidential elections.

Professor Levinson’s work, as well as recent studies on emergency powers by Professor Kim Lane Scheppele, detail how constitutional institutions in the United States, designed to organize eighteenth century politics, are often unresponsive to twenty-first century problems. The framers had little to say about the speech business, global warming or international terrorism, because they had little or no knowledge of the underlying political phenomenon. Again, the best justification for working within the existing constitution is that the text provides Americans with an adequate, possibly barely adequate, language for discussing twenty-first century problems, that the political energy spent creating new language may do little more than distract from substantive efforts to resolve these problems, and that whatever new language is adopted is likely to become as obsolete as the old language within a generation. Still, constitutional veneration skews constitutional analysis of contemporary problems. Canonical citations to The Federalist Papers are mostly harmless when constitutional commentators simply use James Madison or some other framer de jour as a vehicle for advancing what that commentator believes to be the best construction of executive power during the war against terrorism. The great danger is that such arguments foster the notion that Americans should do whatever James Madison really would do and so ignore basic realities that Madison got wrong. Consider how many commentaries blithely cite Federalist 10 for the proposition that mass political parties cannot arise in an extended republic.

The more fundamental problem with an eighteenth century constitution in a twenty-first century world is that an eighteenth century citizenry may lack the capacities necessary for any twenty-first century constitution. The framers recognized that republican constitutions require that the citizenry have some virtues, although as Madison pointed out, men did not need to be angels. Whether particular constitutional aspirations and particularly constitutional institutions are desirable depends on whether their publics are inspired by those aspirations and are able to operate the institutions in the prescribed fashion. An eighteenth century citizenry is unlikely to be able to manage a twenty-first century constitution. The twenty-first century constitutional order is more democratic than the eighteenth century order. This is true both in a formal sense (constitutional amendments have expanded the electorate, free speech rights are more broadly understood) and in an informal sense (politicians are more aware of public opinion and therefore are more responsive). Hence, a much higher percentage of the population must be motivated by fundamental constitutional aspirations. Political problems are more complex. Hence, a much higher percentage of the citizenry must have the knowledge necessary to determine how in practice fundamental constitutional aspirations may be realized. The eighteenth century constitution did not require the average American citizen to know much about Europe or even be aware that Asia and Africa were continents. The average citizen in the twenty-first century must have expertise in basic science, geography, and politics if constitutional democracy is to promote basic constitutional commitments.

Much evidence suggests that American citizens lack the capacities necessary to manage their constitution in a twenty-first century world. Consider the ease with which popular majorities became convinced that an alliance existed between Al-Quida and Saddam Hussein or the lack any public sense about the difficulties inherent in creating a democratic Iraq. Consider the difficulty scientists have had making Americans aware that global warming presents a grave threat to the environment. Consider the substantial bloc of voters who reject modern science and, when voting, seem more concerned with who loves who then with the secular problems of the day.

Contemporary calls for constitutional reform are too often rooted in the traditional populist contrast between good people and bad institutions. This dichotomy helps explain why those who favor working within the existing constitution are constantly charged with failing to trust ordinary people. Yet the evidence provides good reason for thinking that on matters of foreign policy, environment degradation, and basic decency, ordinary Americans lack the virtues necessary to manage a contemporary constitution. These observations do not justify a jeremiad against any constitutional reform understood as changes in the constitutional text. Rather, the argument is that unless more basic constitutional reform takes place at the level of constitutional culture, Americans are unlikely to have the capacities necessary to manage either an eighteenth century or twenty-first century constitutional text in a twenty-first century world.
Posted 9:07 PM by Mark Graber [link]