Why I Despair

Sandy Levinson

Today's New York Times Book Review includes an advertisement, on p. 21, by the Annenberg Foundation Trust at Sunnylands. You can also log on to their website . I quote from the Times ad, titled "Constitution Day Made Easy" (which accompanies a visual of the Constitution with the tag lines "It Shaped Our History[,] It Charts Our Future"):

The U.S. Constitution protects the wellbeing of our country and ensures our freedoms.
Yet many Americans know little about it.

That's why Congress established Constitution Day--a time to teach future generations about the foundations of our democracy.

The Byrd Amendment requires that schools receiving federal funds offer an educational program on the Constitution on September 17.

To help schools participate, the Annenberg Foundation
Trust at Sunnylands is providing classroom-reading resources at no cost at http://www.annenbergclassroom.org/.

These include:

Vidios featuring members of the Supreme Court answering students' questions about the Constitution, judicial independence and the role of the Supreme Court.

A film chronicling two key moments that defined our
understanding of the judiciary and its role in our democarcy.

Lesson plans and quizzes that teachers can use for
Constitution Day and throughout the school year.

One is tempted to commend the Annenberg Foundation Trust at Sunnylands for engaging in much-needed civic education. I obviously agree that most Americans know shockingly little about the Constitution and its consequences for the American political system. However, the reason for my "title" above is that I detect in the ad or at the website no acknowledgment that Constitution Day might best honor the truly admirable Founders by emulating their own critical spirit vis-a-vis the existing constitution--i.e., the Articles of Confederation--and ask if in fact the U.S. Constitution does indeed "protect[] the well being of our country and ensures our freedom." It is taken as a given rather than as something worthy of serious examination (and the possibility of some rather depressing conclusions).

The Constitution obviously didn't live up to the description in 1787 inasmuch as it was stunningly indifferent to the freedom of slaves (for starters), nor did it function even to preserve the Union, as Mark Graber has brilliantly demonstrated in his book on Dred Scott, given the built-in regionalism in Congress owing to the fact that every single member of Congress is a locally-elected official with no incentive (other than the desire to run for President) to think of a broader, national interest. And the most controversial part of Mark's book is his not-so-implicit criticism of a system of presidential election that put Abraham Lincoln in the White House with 40% of a completely regional popular vote. But, of course, that is old news, and one might believe that everything was cured by the Reconstruction Amendments (even though that is obviously not the case).

But I suspect that most of you are tired of reading my screeds against the Constitution. So let me commend a book much in evidence at the recently concluded American Political Science Association convention in Chicago, by University of Virginia political scientist Larry J. Sabato, A More Perfect Constitution: 23 Proposals to Revitalize Our Constitution and Made America a Fairer Country (Walker & Company, to be published in early October). Sabato begins his book by stating that possibilities for a better future are "being eroded and impeded by archaic parts of the original United States Constitution, and the situation is getting worse with each passing year. The Constitution is failing America in some vital ways." I have not yet finished Sabato's book, and I know that I don't agree with all of his 23 suggestions, such as a Balanced Budget Amendment. But, obviously, I commend him for his own efforts in sparking the necessary national conversation about the adequacy of the Constitution. (There will, incidentally, be a major program in DC on October 19, to be covered by C-Span, discussing the issues raised by Sabato's book; I will be participating on a panel on a new constitutional convention, one of his proposals with which I obviously agree.)

The Annenberg Foundation Trust at Sunnylands, I fear, is not making Constitution Day "easy," but rather an occasion for feel-good propaganda and vapidity. Almost literally, the last people in the country I would turn to for a truly serious discussion of the adequacy of our Constitution--given that the most important parts are never litigated!--are justices of the United States Supreme Court, whatever their political persuasion. Most of them appear to believe that quotations from the Federalist or Tocqueville suffice to offer a proper understanding of the way the Constitution structures American politics today. This is evidence of our constitutional "civil religion" at its worst, where ritual and incantation substitute for critical analyis actually modeled for us by Madison and many of his colleagues.

Perhaps the deepest irony is that Constitution Day is the result of a bill by Senator Robert Byrd (D-W.Va.), perhaps the most sustained critic of the Bush Administration's disastrous war in Iraq. But the sad truth is that Senator Byrd, a former majority leader of the Senate, for all of his undoubted love of and esteem for the Constitution, conveys no reason to believe that he understands the power of the (Daryl) Levinson thesis and its explanation of the fact that Congress has a minimal sense of its own institutional prerogatives when one party controls both White House and Congress. He bewails (altogether properly) the absolutely disgraceful lack of serious oversight of the Bush Administration between 2003-2007 (not that the Democrats really engaged in any serious questioning of the "Global War on Terror" between Sept. 11-2003, when they lost their majority), but exhortations to return to the Madisonian understanding of checks and balances are pointless. As Levinson and Richard Pildes argue, if one wants to guarantee oversight, one has to redesign our institutions to take account of the reality of party systems. (Here Germany provides a good model.)

It would be better if there were no Constitution Day at all--though I will have the privilege of speaking about the Constitution at the University of Nevada at Las Vegas and then at DePaul in Chicago--than to let it become what the Annenberg Foundation Trust at Sunnylands--in partnership, I note, with
National Constitution Center
Sunnylands Constitution Project
Annenberg Civics Education
Student-Voices
Cope.Care.Deal
FactCheck.org
Justice Learning
Justice Talking
--conveys. Whatever their undoubtedly good intentions, I fear that they are disserving the maturation of the American public and of the students who are being invited to benefit from the prepared materials. To be sure, it would probably be a good thing for students to debate issues like freedom of speech and the death penalty, two of the issues covered in the materials, but, of course, I think it far, far more important that they debate the consequences of entrenched presidents and vice presidents, of the presidential veto, and so on.

Just 15 more days 'til Constitution Day. I hope that everyone is brushing up on his/her favorite and, just as much to the point, unfavorite, parts of the Constitution.
Posted 6:25 PM by Sandy Levinson [link]