Et tu, Garrett

Sandy Levinson

Garrett Epps, whom I very much like personally and whose work I greatly admire, has an article in the current Nation justifiably attacking some Tea Partiers (think of Michelle Bachman) for their wacky, and often pernicious, views of the Constitution. The subtite of his piece (I assume the product of Nation headline writers) is "Inside the right's cammpaign to hijack our country's founding text--and how to fight back." So, given that I agree with a great deal of the piece, including, for example, his takedown of Antonin Scalia for basic dishonesty in the way he actually operationalizes his vaunted commitment to "originalism" and a "dead Constitution" (Scalia's term, not his critics'), why am I left so dismayed after reading the piece?

The quick answer is that Epps cannot forbear from engaging in his own version of Constitution worship. If the response of the Left to Bachman and her ilk is to claim only that we love the "real" Constitution more than they do--and to ridicule without discussion the desires of some of the Tea Partiers to amend the Constitution--then I we only slip further into the reverie of Madisonian "veneration" of the Constitution instead of adopting Thomas Jefferson's injunction not to treat it as an "ark of the Covenant." When all is said and done, Epps, like most contemporary leftists, including the American Constitution Society (an organization that I happy to financially support), is almost entirely Madisonian, which, for me, obviously, is no compliment. (Hope springs eternal that the ACS will become more critical of the Constitution.)

So here's the bill of particulars with regard to Epps's essay:

"Our Constitution wasn't written to rig the political game but to play it without killing one another. It created a government and gave that government the power it needed to function." First, it is patently false to say that the Constitution "wasn't written to rig the political game." After all, as he himself notes (contra the ridiculous claims of Bachman), the Constitution was written to rig the game in favor of slaveowners and the states they lived in, who got a huge bonus in the House of Representatives (and, therefore, the electoral college and, ultimately, because it's the President who chooses nominees for the Supreme Court, that institution as well). And, of course, as he well knows, having written a fine book on the Fourteenth Amendment, it took a bloody war that killed two percent of the entire population of the United States in order to overcome this particular aspect of the Constitution. But, as he also well knows, the South actually won greater political power by losing the war, inasmuch as the former slaves who had been treated as only 3/5 of a whole person now indeed became "whole persons," but since by the end of the 19th century, they were disallowed from voting, the South got a huge "segregation" bonus that was even bigger than the slavery bonus, which, of course, rigged American politics until at least the time of Lyndon Johnson and the passage of the Voting Rights Act. Moreover, the Senate was obviously rigged in order to protect the political interests of small states, and we play the price for this every single day with regard, to take only the most obvious example, an indefensible (and expensive) agricultural policy that is passed at the "bipartisan" behest of upper Middle West Senators who care more deeply about agricultural subsides than anything else.

I agree withi Epps that the Constitution "gave the government the power it needed to function." Marshall was correct in McCulloch v. Maryland, which is enough to establish the constitutionality of the Affordable Care Act. Period. The problem is not "interpretation" of Article I, Section 8, but, rather, the egregious set of political structures that make it next to impossible actually to pass the kind of progressive legislation we so desperately need. In fact the ACA is both of historic importance and thoroughly mediocre as a genuine attack on the ever rising costs of medical care, and the reason it is so mediocre is the ridiculous power given small state senators, plus, of course, the indefensible filibuster rule, which is the result of the Constitution's grant of a power to each House of Congress to establish its own rules. One can say "you lie" (correctly) to Bachman, Glenn Beck, and their minions, but that has precious little to do with addressing the extent to which the Constitution is shamefully rigged in favor of maintaining the status quo in domestic politics. (Foreign and military policy raise different issues, though, of course, one could argue that we continue our idiotic policy toward Cuba--this is literally the 50th anniversay of the embargo established against that country--because of the structures of American politics such as the electoral college andthe inordinate power given "battleground states" like Florida, not because most rational analysts believe it makes the slightest bit of sense in today's world.)

"The framers wanted to impel change, not prevent it." Well, yes and no. The fact is that many of the Federalist Papers are full of language denouncing the tendency of legislatures, particularly the House of Representatives and its greater sensitivity to ordinary (and passionate, basically irrational) electors, to pass unwise legislation. That is, after all, why we have a bicameral system in which the Senate has a death-ray veto over anything passed by the House, and then, for good measure, the also undemocratically-chosen (in the 1787 Constitution) President would also have a veto power. (I put judicial review to one side.)

"The original Constitution prohibited oppressive practices...." Surely Epps should have rewritten this sentence, given that it so notably protected slavery, writing in a special protection for the international slave trade until 1808.

"[T]he Constitution allowed for a government adequate to the challenges facing a modern nation." No, not really. Or, to justify such an optimistic statement, one first has to create a list of "challenges" to the nation since 1789, when Washington was inaugurated, and then assess how well the government responded to them and the extent to which inadequate responses might have something to do with defects in the constitutional design. One challenge, of course, was the fact that American Indians weren't fans of American expansion, and Andrew Jackson did indeed "solve" that problem by an American version of "ethnic cleansing." But, just as obviously, in no way did the government adequately respond to the problem of slavery or the aftermath of slavery. Again, it's not that the Constitution estops the government from doing so by saying it doesn't have the power. Rather, it creates a structure within which politics occur that make this highly unlikely.

"The idea that states have rights. . . appears nowhere in the original Constitution." As a matter of fact, the Constitution very clearly does give states some genuine rights. Article VII makes ratification a matter of decision by state polities, not by the people at large. And Article IV requires, for example, the assent of a state before it can either lose territory (by division into more than one state) or gain territory (by amalgamation with another state). This is why, for example, we can't simply force the Dakotas to become one state, which would still be overrpresented with two senators. I agree strongly with Epps that the actual number of rights specified for states is astonishingly few, that most notions of states rights are made up by the Supreme Court, but why can't one settle for this rather than claiming that the Constitution is totally silent as to states possessing at least some rights (including, for that matter, a right to have its own miitia, under the Second Amendment. Today, this is viewed as a "minimalist" interpretation of the Amendment, but, as I've written on other occasions, there is nothing minimalist in the real world about sub-national units having a right in effect to have their own quasi-armies).

"The most important truth about the Constitution is that it was written as a set of rules by which living people could solve their own problems, not as a 'dead hand' restricitng their options." With respect, I think that "the most important truth about the Constitution" is that it is the most difficult to amend Constitutoin in the entire world and therefore makes it next to impossible for "living people" to "solve their own problems" if, God forbid, solution might require formal amendment of the sacred text. We are confined in an "iron cage" developed by long dead people from 1787 who had no comprehension of the way that the United States would actually develop and what kinds of political structures might be necessary to new realities.

Although Epps is critical of unnamed"progressive legal scholars" who "hold forth with polysyllabic theories of hermentics that ordinary citizens can't fathom," I am afraid that he commits the basic sin of almost every law professor, which is focus exclusively on what I have come to call the Constitution of Interpretation--i.e., the Constitution that law professors love to talk about and that is the subject of endless litigation and law review articles--rather than the Constitutoin of Settlement that never rises to the top of a law professor's consciousness because there really isn't anything to "interpret" (what part of "two senators" or "January 20" do you not understand) and, of course, this is never of interest to the judiciary.

One obvious response to this critique is simply that he didn't write the article I wish he had written. So what? Unfortunately, I think it matters. He concludes his article by writing "Ordinary Americans love the Constitution as leawst as much as far-right ideologues. It's our Constitution too. It's time to take it back." Well, as everyone who follows Balkinization knows, I very definitely do not love the Constitution, and I don't think that anyone else should either, except those who benefit from the status quo. Otherwise, we're all like deluded spouses who accept being battered as simply part of what the trials and tribulations of marriage/politics are all about. Ordinary Americans should learn that it is far past time to dispense with their mindless love and instead to engage in cold-blooded analysis. Ironically or not, the best model for that is that of the Framing generation itself, which ruthlessly dispensed with our first constitution, the Articles of Confederation, because it was viewed as thoroughly dysfunctional. There is, alas, not an iota of that most valulable lesson of 1787 in Epps's essay.

I obviously hope that he responds to this critique, either here or on his own indispensable blog site at the Atlantic. He is always worth reading (not least because, as a former reporter, he writes extremely well). But this time, at least, I do conclude, "et tu, Garrett?"
Posted 11:30 PM by Sandy Levinson [link]