Balkinization: Saving the Constitution or Saving America: Are they Identical Projects?

Saving the Constitution or Saving America: Are they Identical Projects?

Guest Blogger

Sanford Levinson

This post was prepared for a roundtable on Can this Constitution be Saved?, convened as part of LevinsonFest 2022.

I begin, as usual, with deepest thanks to Richard Albert and Ashley Moran for organizing these programs and to Trish Do for the technical acumen to make them happen. I’m also grateful to Jeff Abramson for his really valiant role as moderator, given the necessarily limited time available and the necessity to truncate remarks. That makes it especially fortunate that Balkinization offers the opportunity to offer the presentations in an expanded form.

However, as the “Levinsonfest” proceeds, I find myself more and more overwhelmed by gratitude to everyone who is participating. Some of them are, both metaphorically and, increasingly literally, old friends, but thanks especially to Richard, I am also meeting some new people and, I hope, making brand-new friends, not infrequently from abroad. That is a special reason to be grateful to Richard, who is truly a bridge both between countries and continents, but also between generations.

Today’s roster is typical. I have known Mark Graber, Steve Griffin, Bill Galston, and Jennifer Hochschild for many years, and we have been talking (and arguing) about some of these issues since our earliest meeting. Julie Suk and Caroline Fredrickson are newer friends, with whom I worked (as with Mark, Steve, and Jennifer) on what I call the “Tomasky project,” a group that came together charged by Michael Tomasky, the editor of Democracy (and now, as well, The New Republic) to design a constitution that would serve us well in the 21^st century. I had not previously met Jeanne Sheehan Zaino or Wilfred Codrington (though I did happily blurb the book on constitutional amendment that Wilfred co-authored with John Kowal). All of the essays are of great interest. Given that I am not writing a series of full-scale articles, I fear that I cannot do justice to all of the essays (or, perhaps, to any of them), but I will try my best to focus on some of the most important themes.

Probably the person I have known longest is Mark Graber. I am an only child, and he has become one of my de facto brothers over the years. I happily dedicated my book Framed to both Mark and Jack Balkin, who also certainly qualifies as a member of my close, albeit non-biological, family. As in most families, though, closeness does not mean identity, and Mark and I have been debating many of the issues raised by this gathering for many of years. I think it is fair to say that Mark has enabled me to recognize the extent to which I am more Jeffersonian, at least in some important senses, than I might have thought I was, even as I have provoked Mark to become ever more Burkean. That difference is certainly apparent in his paper (and in some of the others as well).

I should note that the title of our gathering, “Can This Constitution be Saved?” was not my own. But I am quite happy with it. I have, for many years, advocated holding a new constitutional convention. Ideally, it would generate a brutally candid conversation—presumably, unlike the Philadelphia convention in 1787, open to the public through C-SPAN and other streaming services—about the adequacy of the Constitution to the American republic in the 21^st century. An important feature of The Federalist, after all, is its willingness to dismiss the existing framework of government created by the Articles of Confederation, finally adopted in 1781, as “imbecilic” and very much in need not only of “revision”—the task assigned by Congress to the Convention—but really of fundamental replacement. I have been arguing since my first book, Constitutional Faith, that an American pathology is the “veneration” attached to the 1787 Constitution. That disposition of “constitutional faith” is perhaps the most truly “exceptional” aspect of American political culture. It is, I think, a pernicious feature inasmuch as it generates an unwillingness to emulate what was most truly admirable about the “Founders,” their willingness to engage in what Federalist 1 called “an argument open to all,” where Americans were treated as serious people, capable of thinking about the most fundamental issues of governance, and then deciding, after suitable “reflection and choice,” how they wished to be governed. Anyone reading Federalist 1 might be forgiven for thinking that it was written by Thomas Jefferson (and not Alexander Hamilton) inasmuch as it is suffused with a faith in “the people” and their capacity for disciplined “reflection” and then wise “choice.” One may wonder whether Hamilton was sincere, but it really doesn’t matter. He set out an admirable vision of what it might mean to live in a “republican form of government” dependent for its ultimate legitimacy on the capacity of the public to engage in self-governance, to offer their truly informed “consent” as suggested in the Declaration of Independence.

I think it is fair to say that neither Mark nor Jennifer is suffused with a Jeffersonian spirit. Jennifer, indeed, is admirably candid: “I am skeptical of democracy tout court, and almost as dubious about a majority-based deliberative process even if it were held under purportedly constraining rules.” She bases her skepticism in part on her justifiably prize-winning work on the history of racial relations in America. If, after all, one accepts that there are genuine elements of truth in the “1619” argument that American politics cannot be understood without paying full attention to the relentless efforts of the white majority to maintain white supremacy, then majoritarian democracy loses some of its charm. And Thomas Jefferson, in particular, becomes far less notable as an admirer of the capacities of ordinary people to engage in self-government than as a thoroughly confused and hypocritical slave-owner (and devotee of a “natural aristocracy”) who especially was mistrustful of those Americans who were choosing to live in bustling cities rather than in the farms where, apparently, civic virtue was implanted into the soil. I think it is somewhat telling that Jennifer’s caution leads her to try to ask if there are any real defenses for what I find one of the truly indefensible features of the Constitution—the allocation in the Senate of equal voting power by states. Not surprisingly, I don’t see any persuasive argument for giving Wyoming and California equal voting power. As it happens, my colleague John Golden and I are writing a paper together in which we offer a critique of the notion of states as “laboratories of experimentation,” which, even if true and justifying federalism per se, would still not justify equal voting power in the Senate. What would be most interesting is a counterfactual history where formerly enslaved persons had accepted Sojourner Truth’s advice to move West and take advantage of the Homestead Act to settle in the territories and, perhaps, create one or two states truly controlled by African-Americans. But, obviously, that is not what happened, and the allocation of power in the Senate has most definitely not worked out to advantage the groups Jennifer is most concerned about.

Still, it would be foolish to reject Jennifer’s cautionary note tout court, just as it might be a mistake to adopt my old teacher Louis Hartz’s dismissal of Burke as an apostle of “mindless” complacence and acceptance of the status quo. It is not only that majoritarianism per se has its obvious problems. It’s also the case, as Mark and Caroline Fredrickson agree, that a faith in “constitutional design” as such may be misplaced. As I have frequently noted, the great debate when I entered graduate school some 60 years ago (!) was between those who emphasized the importance of formal structures and institutions and those, on the other hand, who instead focused on what became called “political culture.” Gabriel Almond and Sidney Verba had only recently published their classic The Civic Culture, which made the strongest arguments for the dominating importance of culture over institutions. James Madison had suggested that constitutional protections of rights were, ultimately, only “parchment barriers” against the desires of those with political power, whether democratic majorities or oligarchs, to get their way. Was it also possible that even what I have called “hard-wired structures” were equally subject to breach by intense power-seekers?

Caroline makes the crucial point that we must ultimately pay close attention to the characters and dispositions of those individuals who actually inhabit political office, whether in the legislature, executive, or judiciary, and the potential ease with which institutions can be used for nefarious purposes by those determined to do so, without ever engaging in old-fashioned coups. “Political culture” can itself become much to encompassing a notion, avoiding the realization that any pluralistic society is likely to have several, if not many, disparate political cultures to go along with the different religious, racial, or ethnic cultures. So we really do have to ask very specific questions about officeholders. One can easily doubt whether the six Catholics who comprise the current conservative majority on the Supreme Court reflect “American political culture” defined broadly. But that may not matter, since they control the Court and have obviously demonstrated a willingness to use the formal powers assigned them to try to transform American constitutional law, especially involving abortion, in ways that are congruent with their Catholic culture, even as other decisions can be described as congruent with their general political conservatism.

So, perhaps, it might be argued that it is almost irrelevant whether the particular entity that we call the “United States Constitution” is saved or not, because, ultimately, it is irrelevant to explaining the actualities of American politics or, indeed, the prospects for our long-term survival. Mark especially refers to the possibility of “extinction events,” most likely linked with climate change, that will bring the American experiment—and much else—to an end in the wake of force-5 hurricanes, 500-year floods, and massive tsunamis caused by earthquakes in the ocean that will, among other things, sweep over and destroy Los Angeles and Seattle. It is possible, as Mark seems to suggest, that focusing on the need for constitutional reform, as I somewhat crankily do, is simply a distraction from the real work we need to be doing (assuming that anything at all can truly be done to forestall predictable disasters) on changing the civic culture. This is especially true, of course, if one agrees with him that most constitutions rather quickly become “irrelevant” in important respects, as the political context changes and “solutions” devised for time A are either counter-productive or simply beside the point at time B. This is, among other things, why Mark and I share a deep interest in “American constitutional development,” which rests on the premise that one can understand “American constitutionalism” only through an historical (and historicist) lens that allows one to understand the remarkable changes that have taken place over time, usually without formal constitutional amendment.

Julie Suk, Steve Griffin, Jeanne Sheehan Zaino, and, of course, Wilfred Codrington III all seem to agree that it is both necessary and proper to think about constitutional reform, which entails the belief that constitutions do matter. Maybe they matter, most of the time, only in relatively limited ways, but there are times when even relatively minor defects can generate life-threatening or other catastrophic effects. Julie confronts the question structuring our conversation—“Can the Constitution be Saved?”—most directly by suggesting that we must first ask should it be saved. Almost no one in Philadelphia—though there were many outside of that city—was asking in 1787 whether the Articles of Confederation “can be saved.” Rather, almost all seemed to agree that the Articles were a disaster than should be replaced and not merely tweaked. There were a few exceptions. Two of the three New York delegates simply left the Convention (leaving Alexander Hamilton as the sole representative of the Empire State); legislators in Rhode Island indicated their distrust in the Convention by failing to name any delegates at all and fatally relying on what turned out to be “parchment barrier” of Article XIII. That required unanimous consent of all of the state legislatures for any amendment, so that Rhode Island leaders were confident that they retained the power, guaranteed in the text of the Articles, simply to veto any of the predictable excesses emanating from Philadelphia. Never has “constitutional faith” (or, at least “Articles of Confederation faith”) proved to be a greater mistake!

At this particular moment in time—the late summer of 2022—I find myself, as I suspect is the case with many “progressives,” to be quite torn with regard to my overall stance toward the Constitution. I continue to believe that in many ways it is a clear and present danger to our national survival. (I will address this more concretely when I turn to the final paper, by Bill Galston.) But, as I watch the January 6 hearings and think more generally about those dreadful events—and about the threat posed by Donald J. Trump and Trumpism more generally, as instantiated in, say, Ron DeSantis or J.D. Vance (let alone Marjorie Taylor Greene)—I have been inspired by Liz Cheney and what appears to be the purity and integrity of her devotion to the Constitution and to the oath of office she took to uphold it. Would I wish to scrap every last detail of the current Constitution and start completely over from scratch? Even if that were politically or psychologically possible, I can’t honestly say that I am that hostile to the Constitution. But what precisely follows? After all, a triage doctor, asked if a particular patient can be saved, might reply “yes, so long as we amputate all of the patient’s limbs and provide a new heart,” all of which are now technologically possible. Perhaps at that point, we would all pull out our copies of Derek Parfit’s musings and ask whether the patient would still inhabit the same identity as that enjoyed before.

Gary Jacobsohn, an esteemed colleague and participant in a different Levinsonfest, has written an important book Constitutional Identity. Does the United States Constitution have an “essence” whose modification or disappearance would mean that we are indeed governed by a “different” document, as against those features, like Inauguration Day, for example, that could easily be modified with no real loss (or, perhaps gain) to our “constitutional identity”? If, as I sometimes do, I find the “essence” of our Constitution in the magnificent aspirations of the Preamble—putting to one side, at least for now, the implications of “ordaining” the Constitution exclusively in the name (and for the benefit?) of a singular “people”—then perhaps nothing “below the fold” is truly “essential.” Everything should be assessed with a ruthless instrumentalism, where the sole question becomes, to what extent does X or Y actually serve as a means of “establishing justice” or achieving the “general welfare,” etc. Those, after all, are the points of the constitutional enterprise, not to have a presidential system, a particular system of amendment, the United States Senate, or any other discrete feature of the Constitution. It is obviously the case that Julie does not reject the aspirations of the Preamble and has an attractively inclusive notion of “the people” who are entitled to the promises set out. So, from one suitably abstract perspective, she, too, would retain the essence of the Constitution while engaging in the radical surgery necessary to save the overall American patient.

Steve Griffin makes an extremely important point, raised as well in an earlier Levinsonfest: It is a terrible mistake to identify “American constitutional development” with the development of what is only one among the multitude of constitutions that can be found in the United States. There are in addition the 50 state constitutions. But, as Steve suggests, those 50 comprise only the current state constitutions. Most American states have in fact had multiple constitutions over time; the average is just shy of three constitutions/state. Georgia and Louisiana lead the pack with 23 juridically separate constitutions; Massachusetts continues to operate, formally, under its constitution of 1780 drafted by John Adams, and New Hampshire under the constitution of 1784 (which in fact replaced an earlier constitution). Even those states, though, frequently amend their constitutions, while the majority have at one time or another more-or-less scrapped their existing frameworks and started over, as the result of state constitutional conventions and then ratification by the electorate at large. New Jersey, for example, is operating under a constitution drafted and ratified in 1948; Illinois and Montana adopted their current constitutions only in 1972. So a full examination of Mark’s skepticism about projects of constitutional reform should include full attention to what the Framers might call the “lessons of experience” taught by a careful look at American states, most of whom are larger in population than was the entire United States in 1790 and, even more so, almost infinitely more inclusive in terms of those persons deemed to be full citizens and participants within the polity.

With regard to the Senate, for example, whether or not it should be “loathed” to the extent that I express, it is worth noting that Nebraska abolished its upper house in 1934, with no observable detrimental consequences save, presumably, to the particular careers of senators who wished to retain their sinecures of office. How did that happen? Or, to take a topic of contemporary interest, how is it that Maine and Alaska now elect their officials through ranked-choice voting? The answer is deceptively simple: All of these states reject the decision made by the Framers in 1787 to deny “the people” who ostensibly “ordained” the Constitution any direct voice in decisions made under the auspices of the Constitution. As Madison “explained” in Federalist 63, “representative government,” which he favored, was the only acceptable alternative to “direct democracy,” which he completely disdained. He did not accept the possibility that it provided a valuable complement, perhaps something we might even describe as a “safety valve,” to the inevitable problems of relying exclusively on elected or appointed “representatives” to make all decisions, without exception, in our name. The United States is exhibit A for the conception of what Richard Tuck, borrowing from Hobbes, has identified as the “sleeping” (or perhaps comatose) sovereign, never to awaken after its completely mysterious appearance in 1787. But perhaps that itself is a bug and not a feature of our system. As Ecclesiastes might have put, there is a time to sleep, but there is also a time to awaken and to take account that the wolf may be at the door threatening one’s very survival.

Steve and I are among the relatively few mainstream (and elite law school) academics who have any attraction to direct democracy. Yes, there are obvious problems, as critics of direct democracy in California never fail to point out. But it is far too late in the day to proclaim that Madisonian “representative democracy” is not without its own, perhaps even sometimes fatal, problems, whether one focuses on the possibility of electing demagogues to our highest office or simply looking at the completely corrupting role that money plays in determining who can meaningfully run for office in the first place and then be elected afterward. As I mentioned in response to Jeanne Zaino’s paper, I am a big fan of Jim Fishkin’s “deliberative polls” (a term I would replace, were it in my power, by “deliberative assemblies”). I believe that anyone with even a modicum of training in the social sciences would agree that a more-or-less random assembly, chosen by organizations like the National Opinion Research Center or the Gallup Poll, would be far more “representative,” if that is the primary virtue we’re seeking, than are the people who are elected to the House and Senate. (Begin with the fact that one will search far and wide for any truly “working-class” member of either body.) From my perspective, this is an example of the difference between thinking like a “social scientist” and thinking like an ordinary layperson. Bruce Ackerman years ago distinguished between how ordinary folk and economists define and therefore think about “private property.” One doesn’t have to buy all of Ackerman’s argument to realize that there may be important differences between “ordinary language” and concepts and the specialized understandings of professionals.

I can say with some certainty and deep regret that most law students and, therefore lawyers, are almost never exposed to truly serious discussion of different concepts of “representation” and what practical difference, if any, it might make to accept one over another. A central reason is quite simple: The legal academy is the prisoner of the United States Supreme Court with regard to most of its/our curriculum, and that Court has said extraordinarily little that is truly useful with regard to the meaning, for example, of “one-person/one-vote,” the purported standard discovered to be part of the Constitution in 1963 and left remarkably unexplicated since then. (I am sure that this will be further discussed in a later Levinsonfest program on voting and voting rights.) But it would be extremely valuable if students, whether in law school classes or the undergraduates that Professor Zaino teaches, were introduced to Maine, Ohio, Wisconsin, and Nebraska, along with California, and asked whether they were more “democratic”—and government therefore more truly “representative”—than is the case with regard to the national government. This would, of course, also be an opportunity to discuss how we identify something as a “Republican Form of Government,” one of the most interesting, but completely omitted at least within the legal academy, concepts generated by the Constitution’s text.

Professors Suk, Zaino, Griffin, and Codrington all seem to agree with me that constitutional amendment is both necessary and proper. Our common problem, frankly, is that none of us has what appears to be a truly plausible strategy to bring that about. I was happy to endorse the book that Professor Codrington wrote with John Kowal, which praised the amendments we’ve added to the Constitution and suggested a number of others that most certainly should be added. We would live in a far better world if everyone read Kowal and Codrington and adopted their advice. But, of course, I’m not the person they need to persuade. As Professor Zaino emphasizes—and this reverts back to the more general discussion about the importance of political culture—what we need to do is to break the hold that the Constitution has for far too many Americans as a sacralized text. I wish I knew how to do that. But my own career, such as it has been, demonstrates the difficulty, if not the futility, of such a goal.

I noted in my remarks that I like to envision myself as akin to Paul Revere, an American patriot trying to summon the American public to the necessary task not now of confronting the Redcoats, but, instead, to confront the problems generated by well-meaning patriots in 1787 who, necessarily, had no conception whatsoever of the challenges that would face us almost 240 years later and the degree to which their set of institutions, all of which may have been perfectly sensible for the political world of 1787, would work even passably well many decades later. As Prof. Zaino reveals in her wonderful set of quotes, they were not under the illusion that their handiwork would—or should—last forever. It is we ourselves who have imposed on the Constitution a kind of sacralized status—not to mention the completely dubious theory of “originalism” that locks us into the iron cage they created—that the Framers themselves would not only have been surprised, but also appalled, by. It was they, after all, who repeatedly emphasized the importance on learning from the “lessons of experience” and the concomitant need, as John Marshall put it in McCulloch v. Maryland, to “adapt” the Constitution to “the various crises of human affairs” if it is to truly “endure” as a functioning frame for government. I regard it as a tremendous failure of political imagination that, unlike those running for highest office in 1912, contemporary “leaders” seem entirely incapable even of addressing the possibility that significant adaptations are possible.

But I have come to the conclusion that instead of Paul Revere, I am far more analogous to Cassandra or, perhaps, to a minor Jewish prophet altogether accurately informing the Jewish public that they had committed grievous sins and that they were basically doomed to suffer catastrophic consequences, including, of course, ethnic cleansing from the land of Israel (or Judea) and displacement to Assyria or Babylonia. There is a reason for the common adage that prophets are often (perhaps usually) without honor, save, perhaps, as lovable cranks, assuming they modulate their tone and don’t try to dominate the Thanksgiving conversation with their dire fears. One can only wonder what might have happened on the 18^th of April in ’75 had all of the persons Revere roused in his famous ride simply closed their doors, muttering, perhaps accurately, that the threat posed by the British was greatly exaggerated and that the so-called “patriots” were only likely to trigger a violent, bloody war that would disrupt their lives.

So I close by consideration of Bill Galston’s valuable paper and by returning to another aspect of Mark Graber’s, dealing with the issue of “legitimacy.” Each, of course, could support a full-length article, so, once more, I apologize in advance for the inevitable injustice I will be doing to the full complexity of their arguments.

I subscribe to the internet edition of the Wall Street Journal primarily so that I can read the weekly columns that Bill Galston writes. I have known Bill now for some forty years and have never failed to learn from him. And that is certainly true of his present contribution. I think it is a major insight that our present discontents may arise not from the abstract problems presented by the constitutional structures that I tend to fixate on, including the egregious United States Senate, but, rather, on the fact that we currently are faced with two highly competitive and polarized political parties. As he notes, altogether accurately, if one party were truly dominant, or if both parties fit the model that was taught me in graduate school—i.e., each appealing, at the end of the day, to the fabled “median voter” and therefore ultimately overlapping in significant ways and accepting what was described as a genuine “consensus” about the basics of American politics—then I would have no occasion for writing the kinds of books and articles that have been my staple over the past two decades.

Or, to be slightly more precise, I might still write a heartfelt denunciation of the Constitution as insufficiently “democratic,” but that would basically be the argument of an academic political theorist, of interest only to political theorists but of no importance to anyone else. Indeed, what I learned from the response to my book Our Undemocratic Constitution is that most people agreed with the abstract argument, but then went on to continue tending their own gardens because the deviations from some idealized notion of democracy—which, frankly, I never came close to clearly explicating—really didn’t matter very much. Ordinary people, perhaps correctly, focus on the outputs of politics, not the inputs. If the sausage is tasty, it really doesn’t matter what the process in making it was. On the other hand, even the most impeccable process may not be enough to create a market for terrible sausage. I have been tempted to identify as an index of “public happiness” an almost complete lack of interest in the topics that professional political theorists concern themselves with, perhaps dismissing them as “academic” in the most pejorative sense. The implication, of course, is that one can identify a state of “public unhappiness” at least in part by the extent to which traditional questions of political theory do become relevant to wider audiences.

From the perspective of 2022, it may be possible to identify 2005, when I wrote the book, as still relatively halcyon times, in spite of the anger of people like myself—and, I assume, many readers of this set of presentations—at Bush v. Gore and, of course, the depredations of the Iraq War. But, for starters, no one doubted that George W. Bush and Dick Cheney would in fact give up their offices and prerogatives if they lost the election, and Ted Kennedy, rightly or wrongly, cooperated with Bush in helping to pass bills involving educational reform and access to medical drugs. And, after all, Barack Obama was able to be elected President in 2008, and his opponent was a dedicated patriot with whom one might disagree but nevertheless admire. Many of us still remember his chastising a presumed supporter who questioned Obama’s membership in the American political community. McCain conceded defeat in a gracious speech, and I happily wore my American flag sweater to the Harvard Law School the next day, a glorious Wednesday morning. I was teaching there that semester, and I wanted to express what I might now describe as my “irrational exuberance” about the state of the American constitutional order.

But then there was Sarah Palin…. Whatever else one thinks of John McCain, that was clearly the worst single decision he ever made in his life, with incalculable consequences for the health of our republic. That is a partial explanation for the fact that the two major parties are now more separated than at any time since 1858 and the decidedly non-halcyon days prior to the outbreak of a war that killed about two percent of the American public (assuming, of course, that the Confederate dead should be described as Americans). And, of course, Palin may actually join the House of Representatives and serve as an all too concrete symbol, together with a number of other truly egregious contemporary Republicans, of the divisions between the two parties and the basically Schmittian view that characterizes members of both parties vis-à-vis their political adversaries. Bill is devoting his considerable energies to trying to recreate meaningful bi-partisan coalitions on Capitol Hill, and one of his most recent columns drew encouragement from the fact that some Republicans supported a couple of major pieces of legislation—though, of course, not a single one voted for Biden’s major bill that snuck through the Senate thanks to the recondite “reconciliation” (surely a misnomer) process.

When I was at Duke as an undergraduate, Samuel Lubell was still someone to be read and discussed, largely because of his theory of “sun” and “moon” political parties, the former of which, by definition, dominated the political process. Obviously, he was writing in the wake of the New Deal and the presumptive dominance of the Democratic Party. Even Ike was pursued by members of both parties in 1948 and then 1952 to run on their tickets, and, unlike Robert Taft, he famously accepted the basics of the New Deal, as did, for that matter, his Vice President, Richard Nixon, when he became president in 1968. Many of us now realize that Nixon was the last “New Deal President.” Whether out of indifference or commitment, the Environmental Protection Agency, for example, was a genuine achievement of the Nixon presidency or, more accurately, of the fact that the political parties continued to overlap in significant respects and that bi-partisanship was an operative reality, perhaps because Republicans had no plausible hope to regain control of either the House or the Senate.

But a weakness in Bill’s argument is revealed in his somewhat facile description of FDR as having “few problems governing except for the ones he brought on himself” (which may be an oblique reference to the disastrous way that he presented and defended his otherwise defensible desire to “pack the Court” in 1937). As Ira Katznelson has demonstrated, central to FDR’s ability to govern effectively was retaining the support of Southern representatives and, even more importantly, senators who in some ways could be described as “liberal” with regard to their white constituents, but who were otherwise either sincere white supremacists without any concern at all for their Black constituents (who, of course, could not vote) or, perhaps like Senator Hugo Black or, later, William Fulbright, were willing to accommodate themselves to the “realities” of their states’ thoroughly racist political systems. (A minor hobbyhorse of mine has become the removal of Warren G. Harding from the list of “absolutely worst” presidents. After all, unlike FDR, he supported a federal anti-lynching bill and, unlike Woodrow Wilson, he commuted the 10-year sentence imposed on Eugene V. Debs for his opposition to American entry into World War I—and, in addition, invited Debs to visit him at the White House.) Admirers of JFK must tiptoe around the fact that he generally was weak on issues of civil rights, until he was forced by youngsters in Birmingham and the responses of Bull Connor in turning on the firehouses against them to give a fine speech that signaled at least a rhetorical turn. That speech did not prevent him from making absolutely terrible appointments of racist judges to the Fifth Circuit in order to accommodate Mississippi’s Democratic Senator James Eastland, the Chair of the Judiciary Committee. We will never know, of course, if Kennedy would have been willing to devote the time and energy—and pay the political costs—that his successor did in passing the Civil Rights Bill of 1964 and then the Voting Rights Act of 1965, both of which depended crucially on support from such Midwest Republicans as Senator Everett Dirksen from Illinois and Rep. William McCulloch from Ohio.

So I can agree with Bill and affirm that in important ways the Constitution did work during the 1960s and, in theory, could work again if there were Republicans analogous to Dirksen and McCulloch serving in Congress and exercising positions of leadership. But that is not the case; at least in August 2022, it is impossible to imagine the Republican Party engaging in the kind of reformation that would be necessary to accept them as a truly valuable partner in the task of governance. Our politics are in important and regrettable ways Schmittian, and the Constitution gives far too much power to what in parliamentary systems would be the “opposition” to derail any effective governance.

In my remarks, I suggested that analogize the contemporary situation with the “stress tests” applied to many banks in the aftermath of 2008. In times of economic flourishing, it may not matter how much of their assets banks keep in reserves because, after all, there will be no runs on them by potentially scared depositors. Once Lehman Brothers went under, the situation changed drastically, and “stress tests” were all too appropriate. The situation that Bill so well describes has created the functional equivalent of a bank run. The question is not whether the Constitution can function reasonably well under the conditions of party dominance and/or significant overlap allowing “bi-partisanship” to be a genuine reality. Rather, how does it function when the “sun” and “moon” become basically indistinguishable in terms of size and are, perhaps as in ancient mythology, the dedicated enemies of one another. Whatever Everett Dirksen or Hugh Scott might have said privately in 1963, I don’t think they ever announced that their principal telos as leaders of their party was to make sure that Lyndon Johnson was not re-elected (or, in truth, elected for the first time) in 1964. But that, of course, was Mitch McConnell’s (in)famous declaration during the early days of the Obama presidency. He didn’t have to repeat himself at the beginning of the Biden presidency because his actions spoke louder than any words might have.

One can, as I am happy to do, simply denounce McConnell as an unpatriotic scoundrel who daily disconfirms the model of public-spirited leadership fantasized by James Madison in Federalist 10. But I’ve suggested that McConnell has never behaved as other than a “rational actor” predicted in many models adopted by contemporary political scientists. That is, he is the leader of the political opposition and, as such, it is completely understandable that he wants to do nothing at all that would enhance the likelihood of an opposition president’s being re-elected. Why would he? We don’t expect the leader of the British Labour Party to be solicitous about the future prospects of a Tory Prime Minister. The latter enjoys office only because of an ability to maintain the support of a majority of the Conservative Party or a coalitional ally. There is no expectation that Labourites will “cross the aisle” to provide crucial votes to save the Party program.

But, of course, that’s not the way our system operates. As Norman Ornstein and Thomas Mann have famously argued, we have a “parliamentary” party structure that operates within an overarching set of political structures that was designed to forestall the development of a party system. As already noted, if there’s a “sun” party with a hefty majority, then it might not matter that much. But today, the reality that Bill so well describes is a recipe for gridlock and, I am afraid, disaster. It is not that Congress can pass no legislation at all. I readily concede that some bills can survive the remarkable gauntlet established in 1787. What I deny is that one can count on the contemporary Congress to rise to the challenges, some of them, in Mark’s word, “existential,” that face the United States. The most recent polls indicate that only roughly over 20% of the public “approves” of Congress, while a hefty 67% “disapprove.” The polls were taken after the passage of recent legislation that led some Washington insiders to proclaim that criticisms of Congress as hopelessly gridlocked were, like Mark Twain’s death, much exaggerated. At the end of June over 80% of the public (including myself) believed that the country was leading in the wrong direction. Perhaps that’s been changed in the past three weeks, but surely not enough to allow any great celebration. Even if I’m subject to some fair criticism as being too much like Chicken Little—perhaps the sky is not really falling—I continue to believe that there is no reason at all to engage in any kind of complaisance. And, for me, the critique must not be directed simply against particular members of Congress, including the egregious Mitch McConnell, but also, and perhaps more importantly, against the impersonal structures written into the Constitution in 1787 that generate their own sets of incentives and disincentives for the persons playing the great games of politics within them.

Mark says that it is a fundamental mistake to be so pessimistic as I tend to be, for two quite different reasons. One is that such pessimism simply may not be good for my (or anyone else’s) mental health. Those who, on balance, “accentuate the positive” are, almost by definition, likely to be happier and more satisfied with their lot. For years I have given what I call “Israeli answers” to the question, “How are you?” That is, I distinguish sharply between my “private” life, which is almost obscenely wonderful, and my “public life” as a citizen concerned about our country. It is the latter that is the subject of today’s discussion. There it really does seem harder and harder to feel any optimism at all. It is understandable that we look for portents that things are indeed getting better. To adopt the metaphor that I have sometimes used, that Americans have become like abused spouses who believe that there is nothing in fact to be done about the situation, it is like emphasizing that the spouse gets drunk less frequently or beats one (and the children) less than used to be the case. That is surely good, but, of course, it also serves as a defense mechanism against recognizing the continuing threat and unacceptability of domestic violence even if infrequent. It is surely better that Congress was able to pass some kind of bill regarding guns after the massacre in Uvalde, but no one should seriously believe that it provides an adequate response to the (perhaps insoluble) problems posed by the fact that there are literally more guns in circulation than there are total persons within the United States and that those with guns, whatever their numbers, are unlikely to take kindly to any genuine “gun control.” And, of course, Congress is completely unlikely to pass any such measures.

But Mark makes a second argument as well. Perhaps one’s pessimism should remain esoteric. Ever since Plato we have known about the importance of “royal lies.” Unless one believes that things are truly and utterly hopeless—that the correct answer to Lenin’s famous question is that “nothing can be done”—there is instrumental value in others believing that something can be done, if only they join some cause, contribute some money, or even just vote. Even if economists can make persuasive arguments that it is irrational for any single individual to pay the costs of voting in large-voter elections, many of us recognize that widespread acceptance of that position, even if true, would be absolutely corrosive to any genuine sense of “republican government.” Government by “consent of the governed” requires something other than sullen acceptance of the proposition that we can have no practical say as individuals on who governs us or what policies they in fact adopt. So there may be good reason, in the words of another popular song, to “put on a happy face” and try to encourage the young, especially, that there is good reason for them to have hope for the future should they in fact choose to participate. A friend suggested to me that perhaps things would not be so bleak if Democrats had been less enthusiastic recruits to the neo-liberal project and the adoption of Clintonian triangulation and declarations that “the era of big government is over,” as against offering full-throated defenses of the kinds of governmental action that might in fact help us confront our most serious problems. In fact, my own continuing support for a new constitutional convention is itself a sign of hope rather than despair. True despair would counsel absolute quiescence and tending one’s private garden while waiting for the asteroid to wipe all of us out. That is not my position. Instead, I will continue to try to persuade you to get behind the idea of a new convention!

Mark also takes umbrage at my suggestion that the American system of government may not only be “undemocratic,” which he is (relatively) happy to agree with, but also, and more pointedly, “illegitimate.” Is that going too far, both rhetorically and as a sober assessment of our situation? As all of us know, there are two basic notions of “legitimacy,” one of them only empirical, i.e., measuring the extent to which a sampled public accord their institutions sufficient support to be accounted as “legitimate.” Support need not mean agreement. Rather, it is the kind of support that “good sports” give to those who make decisions even when they disagree with them. Maybe the umpire or referee did miss the call, but that doesn’t invalidate the institutions of umpiring or refereeing or even allow one to disobey the (clearly) wrong call. One cannot expect perfection. It is, I think, an open question how sociologically legitimate basic American institutions are these days. No national institution other than the military appears to have the “approval” of a majority of the sampled public; even the Supreme Court is now considerably below 50%. And Congress has not had genuine “majority” approval or confidence in the lifetime of any of our students and an ever-increasing number of adults. The GOP seems committed to a systematic effort to destroy the faith of most Americans in the legitimacy of our basic institutions, and since the raid on Mar-a-Lago, that apparently includes even the F.B.I. It is apparently up to Democrats to try to preserve the faith, but, for obvious reasons, I think that might require a great deal of “royal lying.”

That being said, the primary notion of legitimacy is normative. Does some feature of government—or the entire government taken together—merit our loyalty? Again, that doesn’t require that one applaud all, or even most, of the actions taken in our collective name. But one may nonetheless accept the propriety that X makes the key decisions because, say, of having received sufficient votes in free and fair elections. Or perhaps one recognizes Y as having the kind of legitimate authority that comes from professional expertise. And so on. But what was it, exactly, that made Donald J. Trump a truly “legitimate” president of the United States? The only plausible answer lies in our continued acceptance of the electoral college, whatever its patent defects. Perhaps that’s enough if the electoral vote winner had at least some plausible claim to competence and/or a sufficiently “Publian” character to merit a minimal level of trust. One might grant at least that to George W. Bush and Dick Cheney (though it’s a stretch). But, as Hamilton argues in Federalist 68, the electoral college was created (or so he claims) precisely to avoid the possibility of placing in office a patently incompetent demagogue like Trump because the electors would, if necessary, engage in genuine judgment. That vision obviously did not survive even into the 19^th century, let alone our own times, and the Supreme Court, allegedly stocked with “originalists,” unanimously upheld the right of states in effect to “instruct” electors rather than countenance the possibility that they might save the republic by exercising Hamiltonian judgment. Mark chides me for challenging the legitimacy of the Senate simply because it so patently violates any plausible contemporary notion of “one person/one vote.” Jennifer makes a valiant effort to explain why rational people might regard the Senate as a feature and not a bug. But I remain convinced not only that the Senate is indefensible under any widely accepted 21^st century political theory in which “equality” is an important value, but also that the Senate objectively acts as an impediment to passing the kinds of legislation desperately needed by the United States and the world at large.

I take Bill’s point that Democrats actually have more small-state seats in the Senate than one might immediately think. Just think of Delaware, Rhode Island, New Hampshire, and Vermont. But that doesn’t overcome the fact that three of these states especially are wildly atypical of the mass of the United States population in terms, say, of racial demographics. The 50+1% of the American population now living in the nine largest states in the Union receive a grand total of 18% of the Senate, while the remainder get 82% of the seats. Even if one shows that Bernie Sanders is far more progressive, say, than either of Texas’s or Florida’s two senators, that doesn’t overcome the fact that Sanders has no incentive to think of the broad interests of the majority of Americans who are very different from Vermonters. That he is less parochial may be due to the fact that he is a socialist; I suspect that more important is the fact that he chose to run for president, which requires that he adopt a far more national perspective. His views on gun regulation, for example, sharply changed once he realized that he had to appeal to a national, and not only a Vermont, audience.

Is the Senate as “illegitimate” or “loathsome” as, say, the Inquisition or the denial of the suffrage to southern African-Americans, regardless of the Fifteenth Amendment, until after the passage of the Voting Rights Act of 1965? Probably not, but why would anyone wish to argue that the central categories of political theory are rigidly binary. Can we not agree that there are gradations of “injustice” or “legitimacy”? As Mark well knows, I take the Declaration of Independence very seriously, in part because I genuinely wonder whether Americans today must be persuaded that King George III was “really” a tyrant and, therefore, that the violent secession from the British Empire was justified. However, to paraphrase Mark’s own comment, I presume that no one today would compare the depths of George’s “tyrannical” behavior to that of, say, Josef Stalin or Adolf Hitler or, perhaps, even Vladimir Putin. But does that make him a “non-tyrant” and, among other things, invalidate the resistance mounted by those we view as American patriots? After all, Dante’s inferno, so sharply divided into various circles and gradations, still presumably was composed of individuals who deserved their horrendous overall fate.

It is surely tempting to elide such questions, whether in the classroom or in our public discussions. Does anyone really care about the “accuracy” or implications of the arguments made in 1776, or do we accept the consequent events as simply givens, to be celebrated on July 4 unaccompanied by any serious analysis? Though consider in this context the arguments made by Frederick Douglass in his own great speech about Blacks and the Fourth of July. Similarly, I think the question vis-à-vis the Constitution is whether we can continue to “venerate”—or even accept its central features as “legitimate” without addressing at least some of the concerns I express. Interestingly enough, no one, including Mark or Bill, appears to challenge the proposition that we would not today, if writing on a clean slate, come close to adopting every important feature of the Constitution that structures our polity today. But for them that seems ultimately irrelevant. The Constitution, warts and all, remains “good enough” to warrant our continued approval even if unamended. Perhaps, but I’d like more discussion as to exactly why that is thought to be true.

Sanford Levinson holds the W. St. John Garwood and W. St. John Garwood, Jr. Centennial Chair in Law at the University of Texas Law School. He is also a Professor in UT’s Department of Government and a Visiting Professor of Law at Harvard Law School. You can contact him at slevinson@law.utexas.edu.

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