Thursday, July 28, 2011

Revising the Constitutional Text

Gerard N. Magliocca

I just finished Pauline Maier's wonderful book on the ratification of the Constitution, which includes a section on the Bill of Rights. She notes that James Madison originally wanted to insert any amendments directly into the text and change any parts of the 1787 document that were inconsistent with them. Roger Sherman of Connecticut, however, objected to this approach. He wanted the amendments attached to the end of the Constitution. Why? His explanation was that the original document was "sacred" (he was obviously not reading Sandy's work) and should not be touched. Besides, Sherman said, Madison's approach would imply that the delegates who signed the Constitution in Philadelphia had agreed to any subsequent changes. Madison relented to Sherman's demand get the two-thirds supermajority that he needed in the House of Representatives.

I wonder how constitutional law would be different if Madison had gotten his way on this issue. Forcing Congress to consider the implications of an amendment on the rest of the text and make any necessary changes may have made its intentions clearer. That would not be true, of course, for amendments that were very specific (the repeal of Prohibition, for instance), but something like the Fourteenth Amendment would be a different story. On the other hand, perhaps Sherman was right in the sense that reading Article Five as Madison wanted would have increased the difficulty of getting amendments through Congress and that the added clarity was not worth the political cost.


If you accept the fact that language is living, then all the present ambiguity does is force debate. The fantasy that we should or could have an "unflawed" constitution is as dangerous as the fantasy that we have one already; as if to say a better document would make it safe to be a fundamentalist.

The constitution is good enough. What we lack are adults to read it. The only (fantasy) change I'd make is to bar all congressmen from being president. As far as political experience, no one higher than state office holders should be allowed to run. Each branch needs to defend its own prerogatives. We need more adversarialism not less, and we need less academic whining.

Whining in the end is a form of anti-politics. Like complaints about "working the refs." There are no refs, and you can't take your ball and go home.

Gerard, see Mehrdad Payandeh's recent article "Constitutional Aesthetics: Appending Amendments to the United States Constitution" (25 BYU J. Pub. L. 87 2011).

See also Edward Hartnett, A "Uniform and Entire" Constitution; or, What if Madison Had Won?, 15 Const. Comment. 251 (1998).

On the other side, see:
The Anti-Empathic Turn, a description of the new vogue for "scientific judging".

The constitution as written would seem to preclude the possibility of such a thing, which was my point. That the original intent of the 14th would seem logically to render it unconstitutional only forces us to think in the present, not only about law but about what we value. This has the advantage of bringing the lie to the doctrines of Scalia, Hart and Posner.

Democracy is not the rule of assumed values, it's the rule of debate over values. As to discussions of "aesthetics" -viewing them as ethics manifest in form- we end up there no matter what.

The constitution is a work of literature. Foundational literature is still literature. A science of literature is an antidemocratic lie, no less than a doctrine of truth.

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If we accept that language is a living being, so all the current lack of clarity is not a valid argument. Fantasy that should or could have, unflawed the Constitution is as dangerous as the fantasy that you already have one, as if to say a document that best would be safe for fundamentalism. The Constitution is pretty good. What is missing is for adults to read. Only l '(fantasy), the change was made to avoid being President of the Congress. As far as political experience, not exceeding the state office holders are one allowed to run. Each branch is to defend their rights. We need more not less adversarialism, and we need fewer academic whining.

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