So what would it take to think about constitutional revision?

Sandy Levinson

It is a commonplace among constitutional design buffs that, with some interesting exceptions, significant constitutional change usually takes place against the background of catastrophes or, at least, train wrecks.  The paradigm cases for the former are Germany and Japan, though the spate of constitution drafting following the dissolution of the Soviet Union or the end of apartheid in South Africa can also be cited for the general proposition.  And, indeed, one could cite the so-called Reconstruction Amendments as well, for they were clearly responses to the carnage of secession and civil war (and, of course, if one is an Ackermanian, the Fourteenth Amendment especially is hard to square with any conventional theory of Article V amendment).  If, on the other hand, things seem to be going reasonably well, then why think of constitutional reform?  The fact that things are going well is taken as evidence--violating the correlation is not causation dictum--that the constitution in question is really working wonderfully, or that, at least, is isn't sufficiently broken to need any fixing. So let sleeping dogs lie, etc.

So where are we right now in the US?  My own view, argued over past six months, and not only since the "election" of the sociopath, is that we are in the most serious political crisis since 1860.  I think that each day demonstrates more and more the psychological divide in the country at large in which we increasingly view Others as the Schmittian enemies who must be defeated at almost any cost.  I am not at all immune from that, given my own views of the sociopath and the truly deplorable people who constitute a significant part of his base and, more to the point, those he is bringing into the White House itself, beginning with Steve Bannon.  But that is not the point of this posting.  Rather, since I continue to think that it is the Constitution itself that helps to explain our deplorable situation, I continue to want a new constitutional convention (believe it or not).

The most common response, other than that I'm crazy, is that the country is just too divided to make a convention other than a nightmare.  I.e., it is precisely because we are close to/in a train wreck that we shouldn't even think of such a thing.  But, of course, when I first started suggesting the desirability of a convention some years ago, the response then was that the country was in fine shape and that only an academic airhead could think that the Constitution needed any deep scrutiny and changes.  These arguments are obviously in tension with one another.  I find myself thinking of Tom Friedman's analysis of Israel's position vis-a-vis serious negotiations with Palestinians.  Either Israel claims to be facing serious terrorist threats and can't be expected to negotiate under such pressures or things are going so well that Israel feels no pressure to negotiate.  In any event, the status quo continues ad infinitum, to the detriment of both Palestinians and anyone who cares about maintaining an Israel worthy or respect and admiration.  So it seems to be with the Constitution.  There never is an apt time for a convention (other than the summer of 1787) either because the times are too fraught (like now) or things are going too well.

Let's start with low-hanging fruit:  Why isn't there a national movement, beginning yesterday, to get rid of the indefensible electoral college?  Why should this vestige of slavery, with its perverse incentives to engage in local vote suppression (amply vindicated in Wisconsin), last one more election cycle?  But we might also have a debate about the necessity of repealing the 1842 act that requires single-member districts in the House, which accounts for much of the degradation of that venerable body. In theory, all that is required is a new statute, but, of course, one cannot expect the beneficiaries of the single-member district process to get rid of it.  Remember Roche's dictum:  Power corrupts, and the prospect of losing power corrupts absolutely.  And, alas, we can't engage in California-style initiative and referendum to repeal the act and replace it with multi-member districts elected via some form of proportional representation.  This means that only a convention could do it. And so on.

I agree, incidentally, that things can get worse.  Perhaps we really will  drift into a more genuine civil war, provoked by bloodshed attached to Trump's desire to crack down hard on any and all undocumented aliens and their families.  Or perhaps some of his own base will start rioting when they realize they're going to lose their medical coverage thanks to Paul Ryan and his merry ban of Randians.  Or the sociopath will blunder into war with Iran or provoke a depression by repudiating the national debt, since only suckers ever pay all their debts (certainly the sociopath did not).

The central question remains whether we as a public are capable of any kind of genuine "reflection and choice" about how we are to be governed or whether we really are condemned to be the passive objects of whatever the political winds bring us.  I fear the latter is the case, not least because we don't trust one another sufficiently to risk the kind of national dialogue that a convention would require.  So will our experiment in a Republican Form of Government end in a bang or a whimper?
We'll begin finding out after Friday.
Posted 11:38 PM by Sandy Levinson [link]