Balkinization: On the Need for Reasoned Structural Reform

On the Need for Reasoned Structural Reform

Guest Blogger

This post was prepared for a roundtable on Can this Constitution be Saved?, convened as part of LevinsonFest 2022—a year-long series gathering scholars from diverse disciplines and viewpoints to reflect on Sandy Levinson’s influential work in constitutional law.

Jeanne Sheehan Zaino

On the Sanctity of the Constitution

The seven most important words in American history, “We the people of the United States,” were written by Gouverneur Morris. While Morris is not well-known, he played a critical role at the Founding. He spoke more than any other delegate at the Convention and is known as the ‘penman of the Constitution,’ because he wrote significant portions of the document, including the preamble.

Morris suffered physically throughout his life. As a boy he was so badly scalded he had to miss a year of schooling. He later lost his leg in a carriage accident, and ultimately lost his life to a debilitating infection. Perhaps it was his intimate understanding of the fragility of both the human body and the body politic which led him to say about the Constitution:

Nothing human can be perfect… Surrounded by difficulties,
we did the best we could; leaving it with those who should
come after us to take counsel from experience, and exercise
prudently the power of amendment. [1]

When the question of constitutional revision is raised, I often recommend reflecting on these words. As important as the issues of the ‘necessity’ and ‘prospects’ for amendment are, they are too often derailed by the inviolability argument. The document, which Morris helped construct, is looked upon by many today as sacrosanct and, as a result, anyone who broaches the topic of revision, as somehow traitorous. Nothing could be further from the truth, more un-American, or ahistorical. Don’t believe me or Morris, just look at what a sampling of his fellow—better-known colleagues—had to say.

The warmest friends to and the best supporters of the
Constitution, do not contend that it is free from imperfections.
~George Washington, 1787

I am not of the number… who think the Constitution lately adopted
a faultless work.
~James Madison, 1788

I never expect to see a perfect work from imperfect man.
~Alexander Hamilton, 1788

No society can make a perpetual constitution, or even a perpetual law.
The earth belongs always to the living generation.
~Thomas Jefferson, 1789

To underscore these points, the Framers provided in Article V, not just one but two methods (and four paths) for amendment. It is common today to assume that all written constitutions include such provisions, but that is not the case.

On the Need for Revision

History has proven the Framers right when it comes to both the shortcomings of the document and need for revision. The Constitution they devised was, as Thurgood Marshall said, “defective from the start. Requiring several amendments, a civil war, and momentous social transformation.”[2]

Whether there is a need for revision should always be examined from the perspective of the ‘living’ and with the understanding that thoughtful people can differ on the issue.

That said, from my perspective the need remains great because despite the twenty-seven amendments passed, none has yet addressed the most pressing need—to ensure that the federal government is empowered enough to address the key challenges of the day.

At the time of the Founding, the Framers were uncertain as to how to infuse power in a democratic state without degenerating into tyranny. They were so traumatized by the prospect, that that they dared not even utter the word ‘power’ and took, instead, to substituting it with the term ‘energy’. Their reasons are understandable, but the fact is more than two-hundred years later, we still suffer the consequences as the federal government is often unable to address critical challenges we are facing; except in times of crises (and even then, they are slow and the policy prescriptions that emerge are often badly watered down, i.e., gun violence, health care…).

To their credit, what the Framers did well via the Madisonian structure was to create a government in which protection of liberty was prioritized. It has long been apparent, however, that they did their job so well that other key considerations—namely responsiveness, accountability, and coherence suffered. Throughout American history, going back at least as far as Joseph Story’s work in the early 1800s, a long list of learned individuals have proffered constitutional remedies to address this problem.[3]

On the Prospects for Reform

Those who believe, as I do, that the need for reform is great, also recognize that the

prospects are bleak. This is in part due to the Framers and by design. As Justice Antonin Scalia once said of the amendment process, it should “be hard, but not that hard.” [4]

It is not, however, only the arduous nature of the amendment process which has put a stranglehold on the prospects for reform. It is also the fact that while structural reform is critical to saving the union, it has also proven to be uninspiring. This is why it has been so difficult to muster public opinion to persuade lawmakers of its necessity.

No one understood this more than a young Tommy (later Woodrow) Wilson who noted that “none but a truly national sentiment can set” a constitutional amendment into “motion.” Unlike moralistic campaigns, however, structural reform efforts were a “cause of” little interest to “humanitarians.” [5]

This has proven to be the case as just five of the amendments deal with structural components and of those, three are tangential; meaning that just two (or seven percent) of the amendments have had an impact on the structural elements of our Madisonian system. This is not for a lack of trying, numerous amendments have been proposed, but few have sparked popular imagination. [6]

Today we have a problem not, as the media likes to say, of polarization, but rather stalemate and deadlock. [7] The fact is, we live in a system structured in the late 18th Century to insure that even on those issues where the majority (or supermajorities) agree, the government is often unable to act; and when it finally, does the results are far from satisfying. That is not by accident, it is by design; and only reasoned restructuring via Article V or the use of extra constitutional means and remedies (i.e., strong, responsible parties) can address it.

The danger is that a government that fails over long periods of time to address the key challenges facing its people will, at some point, morph into something else (i.e., an autocracy or tyranny) or cease altogether. In short, change is coming. The only question is whether it occurs at the hands of reason or violence? The fear today is that we may be dangerously close to the latter. This is why it is more important than ever for those of us in the academy to speak and not just to each other, or in forums like this, but publicly, about the necessity and patriotic nature of reasoned and reasonable structural reform.

On Reasoned Structural Reform

A modest step might begin with first, making clear that, as Sanford Levinson writes, “a substantial responsibility for the defects of our polity lies in the Constitution itself.” [8] In short, structure matters; often more than who is in power or what party they represent.

Second, the term ‘defect’ should not be misunderstood to connotate an accident or mistake. In constructing the government, the Framer’s had a specific goal in mind - to protect liberty. As a result, they structured the system so that governmental power is limited, and minorities play an outsized role. Make no mistake, Madison saw government as a necessary evil and feared if infused with energy (or power), it might tyrannize.

His concerns were valid, but more than two-hundred years later we have an obligation to ask whether this is still how people see the government today? Have our views of the goal or purpose of a free state changed over time? If so, how can and should the system be restructured to accommodate the living?

How might we go about ascertaining this? Perhaps a Fishkin-style deliberative poll in which a representative sample of Americans gather to consider the many options. [9] Every time the notion of constitutional reform is broached, the specter of an Article V constitutional convention is raised, and concerned citizens go running for cover at the prospect of how wrong it could go. A series of deliberative polls (recorded, broadcast, or otherwise shared via social media) would allow us, in a low stakes way, to gather basic information and data. In addition, with a proper engagement strategy, it might also allow us to move this conversation forward.

Another of my disciplinary heroes, in addition to Sandy, is the late E.E. Schattschneider. Amongst other things, Schattschneider spoke about the fact that we have a ‘p-problem.’ By that he meant we have a problem not only figuring out how to exercise power in a free state, but even talking about it. Truer words were never spoken. I end my book, American Democracy in Crisis, by talking about another p-problem. It’s the same one which young Tommy Wilson talked about, a problem of raising the public consciousness, motivating the masses, changing public sentiment, and getting the people energized around the prospect of structural reform. For all the decades (now centuries) of writing on this topic, no one has figured out how to do that yet. A deliberative polling exercise or series may not accomplish that fully, but if it could move us even a little bit in that direction, it would be well worth the time and investment. As would other ideas focused on persuading the public and opinion leaders alike of the urgent need for reasoned structural reform.

Jeanne Sheehan Zaino is Professor of Political Science at Iona University. You can contact her at jzaino@iona.edu.

* * * * *

1. Letter from Morris to WH. Wells, Feb 24, 1815, quoted in The Records of the Federal Convention of 1787, Max Farrand ed. rev. 1937.

2. Thurgood Marshall. 1987. “The Bicentennial Speech,” The Bicentennial Speech (thurgoodmarshall.com).

3. Joseph Story. 1833. Commentaries on the Constitution of the United States. Boston: Little & Brown. Most of the recommendations focus on alleviating the division between the first and second branches. See for example, Lloyd Cutler’s “To Form a Government,” Foreign Affairs 59 (1, Fall, 1980): 126-143.

4. Quoted in Eric Posner. 2014. “The U.S. Constitution is Impossible to Amend.” Slate, May 5.

5. Arthur S. Link, ed. 1967. The Papers of Woodrow Wilson, vol. 2. Princeton: Princeton University Press, 258-59, 274.

6. Jeanne Sheehan. 2021. American Democracy in Crisis: The Case for Rethinking Madisonian Government. Cham: Switzerland: Palgrave Macmillan, 172-178.

7. Jeanne Sheehan. 2022. “In Defense of Partisanship,” Divided We Fall. July 5, https://dividedwefall.org/in-defense-of-government-partisanship/

8. Sanford Levinson. 2006. Our Undemocratic Constitution. Oxford: Oxford University Press, 9.

9. James Fishkin. 2011. When the People Speak: Deliberative Democracy and Public Consultation. Oxford: Oxford University Press.

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