Saturday, April 04, 2015

Constitutional design and contemporary dysfunction (and timidity): The APSA Presidential Address

Sandy Levinson

For obvious reasons, I was extremely interested in the title of the Presidential Address delivered by John H. Aldrich at the 2014 meetings of the American Political Science Association:  “Did Hamilton, Jefferson, and Madison ‘Cause’ the  U.S. Government Shutdown?  The Institutional Path from an Eighteenth Century Republic to a Twenty-first Century Democracy,” just published in the March 2015 issue of Perspectives on Politics, one of the two major journals published by the APSA.  Aldrich offers an overview of American political history designed to explain the consequences for governance of the particular form of party polarization that we have today.  Part of his analysis emphasizes the demise of strong parties in favor of candidate-centered elections; this is helped along, of course, by the rise in the early 20th century of party primaries and the secret ballot.  Like Rick Pildes (himself borrowing from earlier political scientists), Aldrich also emphasizes the collapse of the schizoid Democratic Party following the Voting Rights Act of 1965, when the “big tent” of Northern liberals and Southern white racists disappeared, with many of the latter, of course, migrating to the Republican Party in the aftermath of Barry Goldwater’s vote against the Civil Rights Act of 1964 and, more importantly, Richard Nixon’s  “Southern Strategy” in 1968.  
Aldrich also pays attention to the importance of veto points created by the political system set down in 1787, with its emphasis on separate and autonomous "branches" that can "check and balance" one another and thus, among other things, prevent any legislation from passing.   He begins his “conclusions” as follows:

My central argument is that what many are calling the ‘dysfunctional’ government of today is the consequence, in part, of a stream of institutional design decisions made throughout  American political history.  In many respects, the Constitution was designed for a different place and time, designed to solve a different set of problems than our own. …

Aldrich concludes his “conclusions” by suggesting some “strateg[ies] for reform,” which depend, of course, on the diagnosis of the problem.  If, for example, we view representatives as motivated primarily by a desire to be re-elected (as David Mayhew famously suggested, then “we must find a way to reshape districts such that they are more likely to be mixtures of partisanship and ideology” rather than self-consciously designed to be controlled by the median voter within a given political party instead of the electorate in general.  But if we are persuaded by some interesting evidence that “Congress is filled with those committed personally to the expression of ideology” (and who are selected because they are viewed as reliable adherents to the ideology), “then we must find a way to recruit and elect sufficient moderates.” He also suggests that perhaps the Supreme Court needs to rethink its views about money being “speech” and try to move closer to a “one voice, one vote” standard in place of the electorate’s de facto choice of choosing among candidates who have been able to survive the money primary and onslaught of “independent ads” purchased by ideological groups. 

All of these, of course, are worth discussing.  But, as one can imagine, I strongly regret that Prof. Aldrich (whom I do not know), given the title of his presidential address and the beginning of his “conclusions,” didn’t even address the possibility that perhaps we should think about reforming the Constitution itself.  I will confess to some narcissistic disappointment that he did not cite either of my two books on the subject, which I suppose simply underscores the view that I’m not thought to be a “real political scientist” by denizens of the discipline.  But I take this also as evidence of the fact that even someone as astute as Prof. Aldrich clearly is—not to mention someone who seems to express some worry about the contemporary “dysfunctionality” of our political system—seems incapable of moving beyond basically anodyne suggestions into more radical suggestions that perhaps a Constitution that was designed (and perhaps designed well) to confront a “somewhat different set of problems from our own” needs to be rethought every now and then.  

Robert Dahl, perhaps the greatest political scientist of my lifetime, moved over the course of his career from a quite complacent defender of what was called “interest group pluralism” (especially as found in New Haven, Connecticut) to a vigorous critic of our political system for its patently undemocratic aspects.  Interestingly enough, Aldrich doesn’t cite any of Dahl’s work, including his 2002  book How Democratic Is the United States Constitution?, though he does cite (and discuss) Thomas Mann’s and Norman Ornstein’s It’s even worse than it looks:  How the American constitutional system collided with the new politics of extremism.”   But one vital difference between Dahl (and myself), on the one hand, and Mann and Ornstein, on the other, is that for all of the bite of their critique, they carefully avoid any suggestion that we need to think of constitutional reform. That simply isn't thinkable within the Beltway.

It is easy enough to say that Prof. Aldrich is simply being prudent.  The worst feature of the  Constitution is Article V itself, which not only makes significant amendment near impossible, but, perhaps as importantly, infantilizes our discourse by making any suggestion of constitutional reform sound utopian and quixotic, not the kind of thing that persons who want to be thought “reasonable” would ever suggest.  I wish that Prof. Aldrich, who I am sure is a fine representative of contemporary American political science, were less “reasonable.”


I share most of Sandy's concerns and agree there is a need to think about constitutional reforms. But I shudder at what might result from a constitutional convention with the current state of political dysfunction in America especially with the current international conflicts that also have to be addressed. If political dysfunction is not resolved, might this failure lead to threats of nullifications and secessions that Sandy has been speaking out on elsewhere than at this Blog? Might the potential results of such threats get us to think more of constitutional reform? Maybe, but then we're back to what type of reform might result from a constitutional convention. Political mutations in the search for political power are taking place before our very eyes (e.g., with the current proposals on limiting a nuclear Iran).

This morning at a more reasonable hour, I read on my desktop John W. Compton's Tulsa Law Review article titled "What Is Originalism Good For?" reviewing three (3) books published in 2013:

"Originalism And The Good Constitution," by John O. McGinnis and Michael B. Rappaport

"The Failed Promise Of Originalism," by Frank B. Cross

"A New Introduction To American Constitutionalism," by Mark A. Graber

The PDF is available at:

(Today's Legal History Blog has a post on this issue of the Tulsa Law Review, which has many interesting articles.)

As I read through Compton's reviews, Sandy's post was in the forefront of my mind, as I imagined that a constitutional convention might include the authors of these books, as well as Compton and Sandy and many others within and without the legal community. To what extent would such a convention address the arguments and reasonings in these books (in addition of course to many other books including Sandy's and Jack Balkin's)? How might such a convention address the interpretation of a new constitution being argued, debated? To what extent might some version of originalism as we think we know it come into play, perhaps weith a brand-new originalism? Can a brand-new constitution provide what in time would become rule by the dead hand of these new delegates to a new convention? And imagine the ratification processes, with perhaps more of a balance of "We the People" involved. I shudder at the thought of the hurdling process that might be involved with constitutional reform.

As near as I can figure it out, your objection to to Article V is that it doesn't allow the Constitution to be easily amended in ways that aren't widely popular.

My complaint would be that the Congressional route is blocking amendments that ARE wildly popular. But Article V has a fix for that, the convention route.

And the problem there isn't a Constitutional problem, it's a political culture problem: Our political culture has gotten screwed up enough that democracy is no longer effective at producing 'representatives' who are actually representative, and so Congress refuses to originate amendments which would be popular enough to be ratified.

Remember back in '94, the 'Contract with America"? How one of the Republican promises was that votes would be held on the balanced budget and term limits amendments, both very popular, and a cinch to be ratified? Both amendments were brought up in multiple versions, so that everybody who needed to be able to say they'd voted for the amendments could, without risk of any one version ending up with enough votes to be sent to the states.

The problem is NOT Article V. The problem is a broken political culture. Changing Article V so that a political class that fundamentally disagrees with the public it nominally represents is not a fix for that.

"political culture has gotten screwed up enough"

When was it "representative"? For instance, before the 1960s, a significant chunk of the population had little voice in voting for representatives.

"Congress refuses to originate amendments which would be popular enough to be ratified."

Who votes for these people?

"both very popular"

Not popular enough apparently. If there wasn't as strong of a supermajority required, it might be different. But, you began with rejecting his stance on Art. V being too strict. The rejoinder is basically a conspiracy theory that the powers that be (who are elected by the people), here Congress, are in some fashion illegitimately holding back the people.

The Constitution, however, sets it up that the Congress does inhibit things some. But, like Sandy Levinson, Brett doesn't like various components of the Constitution. He's clear about not liking the 17A, but it goes past that.

As to the big picture, I actually am sympathetic to the argument that the political culture, not the Constitution itself, is a major problem. The Constitution allows some change. I do think the 21st Century probably can do with a few alterations to a 18th Century Constitution.

As to Article V being a barrier, the Articles of Confederation held that a unanimous agreement had to be made to amend. In effect, a mini-revolution occurred in 1787 to replace the document as a workaround. The Declaration of Independence says that is our right. It's okay to do that every couple hundred of years or so, I think.

This would require either a major tipping point and/or enough people cross the country to demand a change with more strength and perseverance than the balanced budget (putting aside it is a bad idea on the national level, it would require making hard choices the people simply don't show a will to make, push comes to shove) or term limit proposals had.

Art. V rules here might be too strict, but need some sort of supermajority probably.

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imply put, the Constitution does make it harder to change, so it's not chopped liver in that department.

But, I personally think the problem is the people themselves. Don't feel overly superior here myself, truth be told. Still, the change has to come from below. And, we aren't ready for a major change, apparently.

Still, SL is old enough, Shag surely is, to have seen major changes to the country. In some ways, so have I. So, long term, just might get something right.

Wixipedia has a pretty good statement on the convention process at:

Sandy and others are identified as legal scholars recently pushing for a convention. It is noted that all 27 Amendments to date have come about from actions by Congress under Article V, suggesting difficulties with the convention route of Article V. (Maybe someone can provide a link to how far convention processes have gone.)

I don't think that Jack Balkin has bought into political dysfunction to the extent that Sandy has. In Jack's speech at the 2013 political dysfunction symposium at BU Law School in the fall of 2013, he pointed out that with time personnel on the Court change and that such changes may lessen the dysfunction (but not the political aspects). That's happened in the past.

Seriously, I don't see Article V being the problem. When has Congress seriously tried an amendment? The last amendment sent to the states was the ERA, and, while it was defeated, you can't claim that the effort was hopeless. Can't complain about big state/small state effects, either, as the states ratifying comprised an almost perfect mix of large and small states to negate that issue.

Congress has stopped sending amendments to the states. They've stopped *trying* to send amendments to the states. When was the last time an amendment even got a floor vote, let alone enough votes that the super-majority requirement was an issue? I think was was the balanced budget and term limits amendments, more than 20 years ago, and both were deliberately managed to avoid their passing, not an actual attempt at amending the Constitution.

It's not that Article V is making it too hard to amend the Constitution. It's that Congress isn't bothering to try anymore. Can't blame THAT on Article V.

Regarding Brett's comment on ERA, Compton makes reference to the failure of that proposed amendment in his review of McGinnis and Rappaport's book referenced in an earlier comment of mine.

And the claim of failure on the part of Congress might suggest failure on the part of states to pursue the convention alternative available to them. Yes, blame the people in Congress, but then blame the people controlling states.

There have been plenty of applications for a convention, arguably enough that a convention should have been long since held. They've just been with different phrasing, giving Congress an excuse not to add them together.

In what way is the constitutional design featuring a separation of powers between and granting checks to the three branches of government dysfunctional?

How can anyone possibly claim this design keeps "any legislation from passing?" The U.S Code now exceeds 30,000 pages and continues to grow.

When has the government actually shut down? In reality, we have had two presidents who vetoed appropriations bills which did not spend as much money as they wanted and then proceeded to unconstitutionally spend unappropriated tax revenues as they pleased until Congress sent them an appropriations bill more to their liking. If the government actually shut down after one of these vetoes as required by the Constitution, the president would be far less likely to exercise that check and far more likely to compromise with Congress.

Nearly all of our problems in governance today arise from the the current system's blatant violations of Constitution's checks and balances.

We're getting closer:

Conservative lawmakers weigh bid to call for constitutional convention

"Legislators in 27 states have passed applications for a convention to pass a balanced budget amendment. Proponents of a balanced budget requirement are planning to push for new applications in nine other states where Republicans control both chambers of the legislature.

If those applications pass in seven of the nine targeted states, it would bring the number of applications up to 34, meeting the two-thirds requirement under Article V of the Constitution to force Congress to call a convention."

The link Brett provides is to a recent (April 4th) article in the WaPo. The portion quoted by Brett is immediately followed by this:

"What happens next is anyone's guess."

And the article closes, many paragraphs later, with this:

"'This is by far the most dangerous thing in the country today,' said Fred Wertheimer, who heads the campaign finance advocacy group Democracy 21. 'If we ever got [to a convention], this would create a constitutional crisis unlike anything we’ve seen in our lifetimes.'"

In between there are significant questions/comments, making it worthwhile to read the entire article for context.

One of Sandy's complaints is that the Constitution is undemocratic. Perhaps someone out there might make a calculation of the populations of the 27 states applying for a convention as well as the populations of the targeted 7-9 states to compare with America's total population to see how undemocratic in the sense of population this movement may be. (This is a smart ALEC observation.)

There were thousands of proposed amendments and only 27 passed. Ten of them at once. Three of them under special circumstances. One tacked on. A few singletons in special circumstances (11A and 26A come to mind).

As with Brett's reference to some mystery point when Congress stopped truly being representative, something "recent" is being flagged that really isn't so.

The idea Congress "tried" harder in the past is unclear to me. It seems to me, unlike amendments dealing voting rights or dealing with special cases like a President who won four times, there is not the overall felt need to amend.

It might be time but again I don't really blame "Congress" for this. It's "We the People" who need to be convinced to pressure them enough. I continue to think as a whole focusing just on "Congress" here is a sign that someone doesn't like the constitutional system in place. Since it isn't really "Congress" who is at "fault" here to the degree argued. If we respect the system in place.

Congress rarely passes amendments on to the states. We can find Art. V. fine, but that's accepting that the process will rarely result in amendments. Two major reasons -- it's simply hard to obtain a pair of supermajorities even to do something not major like amendments. Two, there isn't a big enough demand to do that.

There was not "plenty" of convention applications that were strong enough to actually be serious enough to have a good chance to pass Art. V muster.

The amendment process has traditionally been about specific things. The "excuse" cited covers a few cases at best & matches how things traditionally were done. There is also a general concern about an open convention. We saw how that worked last time.

We need more than "conservative" states here to push for a constitutional convention. It is harder to have states, especially the number today, than a single national legislature act. Some don't like the Constitution in place and wish Congress had less power. Others see a value in it.

A balanced budget amendment is cited in that article. A balanced budget amendment on the state level when a state has a sizable budget itself requires workarounds. A national balanced budget amendment is particularly tricky. It also probably requires cutting budgets in areas where conservatives have not shown a desire to seriously do so.

Budget gimmicks and cutting social programs only go so far. A major cut of military budgets might be nice, but conservatives on do not seem to wish to do so in big enough numbers. The conservative states also benefit from federal moneys to help balance their budgets.

A balance of it not really being a good idea on the national level and the practical problems suggests why a constitutional balanced budget amendment has not received the supermajority necessary to pass. Interesting to imagine also how it would be enforced. Perhaps the courts can get involved. Conservatives aren't really big on judicial restraint after all.

The 21st Century Constitution might need changes, but some problematic restraint on their budget power of this nature does not to me (and enough of the people) one of them.


The establishments of both major parties are too corrupt and invested in the current progressive political economy for Congress to ever muster a super majority to amend and reform the Constitution. The only alternative is a state called constitutional convention.

Neither the states nor the Congress can set the agenda for such a convention. Article V expressly tasks the convention itself with suggesting amendments to the states for ratification. Thus, like the last constitutional convention called by the states, this one can offer a broad array of reforms beyond just a balanced budget amendment.

Supporters of limited government need not fear a runaway convention. The states calling for the convention are demanding a more limited government and will task delegates to achieve it. Progressive delegates will be in the decided minority.

Any such convention needs to revise Article V to lower the threshold for enacting constitutional amendments to 3/5 of the states. Then, this convention needs to take a page from the last convention and agree to ratify all the suggested amendments under the lower 3/5 threshold using state conventions to further bypass the party establishments.

Fundamental restoration of our Republic is still possible.

The call for balancing the budget from conservatives will end if there is ever another Republican president.

Here's Article V of the Constitution:

"The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate."

Query: What if Congress were to provide for conventions as the mode for ratification (rather than state legislatures)? What would be the operational rules that might be set by Congress for such state conventions?

To the extent that Congress at the federal level may be considered corrupt and invested, so too may be some state legislatures.

And it should be kept in mind that the first convention was not called pursuant to Article V of the Constitution that the convention approved.

The two (2) convention methods for both amending and ratifying are not so simple because of the roles of Congress in each instance.

"Any such convention needs to revise Article V to lower the threshold for enacting constitutional amendments to 3/5 of the states. Then, this convention needs to take a page from the last convention and agree to ratify all the suggested amendments under the lower 3/5 threshold using state conventions to further bypass the party establishments."

I'm unclear why we should respond to Congress no longer sending amendments to the states, by lowering the number of states needed to ratify the amendments not being sent to them.

I think I would instead keep the ratification requirements, and attack the other end of things: Cut Congress entirely and completely out of the game, by stating that any amendment, no matter where originated, that got 3/4 of the states ratifying it would become part of the Constitution.

Frankly, if you can't get 3/4 of the states to agree to ANY amendment anymore, we should be talking about how to split up the country, not how to make it easier to amend the Constitution.

Oh, and 11 amendments were adopted during the 20th century, 10 recently originated from Congress, the last a hold-over from the original Bill of Rights. That's an average pace of Congress successfully originating an amendment every 7 years, until 1972.

And not one in the 43 years since. That wasn't a change in Article V. That was a change in Congress.

Congress' involvement is "part of the ratification requirements." If you want to "cut them out entirely," you are changing the rules. If you want that, fine.

The last 11 amendments did not merely, full stop, happen on a steady basis. The 27A was a joker. One came because FDR won four times. One came because the USSC made it difficult to run elections and the times made youth voting particularly compelling.

Others again were felt needs, again repeatedly tied to the times. Ike's illness in the midst of the Cold War make 25A particularly important. Two involved the Prohibition. Things were pushed back to January. A few voting rights amendments were deemed compelling.

And, six was passed in one twenty year span from 1913 to 1933. "Congress" alone didn't make that a progressive period where there was a big push for change. "Congress" alone didn't make voting rights amendments pass.

Change is hard. I guess it can be easier if we pretend only one institution is the difference.

To answer Shag's specific question, Congress has provided for ratification of an amendment by state convention in one instance, the 21st amendment. The procedure for the state conventions (how delegates were selected, where and when they would assemble, etc) were left up to each state legislature to decide.

If Brett's:

"Frankly, if you can't get 3/4 of the states to agree to ANY amendment anymore, we should be talking about how to split up the country, not how to make it easier to amend the Constitution."

comes to the attention of Sandy, perhaps Sandy might elaborate on his nullification and secession views as possible responses to political dysfunction. I made an effort to attract Sandy's attention in comments on long archived posts at this Blog. His address/paper at Arkansas Law School on the subject was most interesting. I'm especially interested if his views are evolving as well as reactions of other legal scholars. It's possible that the debates of potential Republican candidates for president in 2016 may address nullification and secession (wink, wink, former TX Gov. Perry).


The Congress...on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments

The Congress's function in calling a convention is purely ministerial and the courts should be able to enforce it.

when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress

Congress has the optional power to choose the mode of ratification. However, if Congress does not act, the states in coordination with the convention will choose the mode as they did last time around.


The country is too divided to enact comprehensive constitutional reform by a 3/4 margin. Almost everyone agrees that this threshold his too high, so I do not anticipate that too much opposition to lowering it.

I thank mls for his answer. I assume that Congress is not bound by what was done by a prior Congress although it may serve as a precedent. That was a situation in which Congress enacted the amendment, not a convention under Article V. My question was aimed more at a convention following application by sufficient states to consider amendments, more open-ended than specific amendments, following which Congress would opt for a convention in lieu of state legislatures for ratification purposes. I don't know of any precedent for dual conventions under Article V.

As to this prediction:

" ... so I do not anticipate that too much opposition to lowering it."

cue to BB.


These poll numbers are great news for John McCain!!!

Is there anyone here who would oppose lowering the threshold for ratifying constitutional amendments?

Both sides of our ideological divide usually agree that 3/4 is too high.

At this point one half of the political divide is opposed to anything that comes out of Obama's mouth. So if he comes out in favor of lowering the threshold, the Tea Party/GOP would be in favor of increasing the threahold. And BENGHAZI!!!

How does this from the Week Wacko Mile High State (of mind):

"Congress has the optional power to choose the mode of ratification. However, if Congress does not act, the states in coordination with the convention will choose the mode as they did last time around."

come about? In applying textualist principles, where is the authority in Article V for the states in coordination with the convention (presumably the one resulting from the "application" under Article V) to decide upon the mode of ratification if Congress fails to designate the mode. With respect to "as they did last time around," keep in mind that that convention was not called pursuant to Article V of the 1787 Constitution, such that until ratified, Article V and the rest of the 1787 Constitution were not yet in effect. The circumstances are different today.



Congress "may" decide the mode of ratification. It is textually nonsensical to read Article V to allow Congress to stop the states from performing their duty to ratify the suggested amendments by refusing to choose a mode of ratification.

"Is there anyone here who would oppose lowering the threshold for ratifying constitutional amendments?"

I'd oppose it, though not vigorously.

As I said, forty some years since Congress last sent an amendment to the states; How is Congress not passing amendments evidence that there's something wrong on the ratification end of things? There may be something wrong on that end, but the lack of amendments coming out of Congress has seen to it that we have no evidence on this score.

A standard rule of debugging systems is, "Change only one thing at a time." Let's see if the states can ratify, once a convention generates some popular amendments.


You can also lower the threshold to propose. Leave the same threshold for states to ratify (if we trust the states here more, that might make sense).

The "evidence" might be that Congress (or those allegedly not pressuring that institution enough) figures that even if it passes thru Congress, it still won't be ratified. One hill to climb leads to inertia. Two hills can lead to more inertia.


But you can't place the blame on the 2nd hill, if the first hill is Everest. For all you know, once Everest is out of the way, you'd have a regular flood of amendments being approved.

I'd be interested in seeing a chart of the votes various proposed amendments have gotten, since the 70's. My impression is that the last proposed amendments to even get a serious floor vote were back in the '90s. And, as I've pointed out, those were deliberately managed to allow politically necessary 'yes' votes without any risk of actually approving an amendment. The votes were just a sham.

I have my view of why Congress stopped proposing amendments, you have your's. But the truth is, Congress stopped proposing, rather than the states ratifying. That there's any problem at the state level is just speculation.

Let's fix the problem we know, and leave the next for when it's been shown to exist.


"Let's fix the problem we know, and leave the next for when it's been shown to exist."

might work in engineering. But what is the problem "we" [recall what Tonto asked the Lone Ranger] know? And how is it to be fixed? I don't think there is a universal problem or two or three ... that "we" know, and agree on how to fix it/them. See Sandy's later post on limiting a convention called pursuant to Article V. While we're under the hood, we might as well check out ... to avoid potential future problems.

Shag, my view of this is that, essentially, it IS an engineering problem. Needs very much to be treated as an engineering problem.

Constitutions may have aspirational or literary aspects, but mostly they are designs for the mechanism of government. And the first and foremost thing is, they need to be designed to WORK.

Our Constitution has, with a short interruption around the time of the Civil war, been running for over 200 years. That's extraordinarily long for a constitution. And one of the reasons it lasted so long was that the people who wrote it designed it, first and foremost, to work.

But, it is not a perfect machine for government, not by a long shot. And one of the consequences of it running for a long, long time, is that we, and others, have had plenty of time to identify the flaws. Some with the end of fixing them, others with the end of exploiting them.

We need a convention, to revise the Constitution, and we need to identify all those exploits, and write the new one so they can't be immediately used to defeat it.

Brett's view of the Constitution as an engineering problem might suggest the need for more engineers than lawyers at a constitutional convention. But seriously, Brett seems to have shifted a tad following my critique of his earlier comment. He now says:

"We need a convention, to revise the Constitution, and we need to identify all those exploits, and write the new one so they can't be immediately used to defeat it."

which suggests a brand-new spanking model [no, I'm not into spanking models] of a constitution, and not just addressing the problem that "we" know and agree on, unless this means much of the Constitution. Perhaps Brett would like to see a "Wild, Wild West" convention with "open carry."


We do not need a brand-new spanking Constitution. As Brett correctly noted, the original design for the government machine worked for well over a century.

We only need a series of amendments restoring the original design and then protecting that design against various modern abuses of our progressive state the original designers did not foresee.

I don't know that we need an entirely blank slate constitution, but some major revisions are in order, given some of the identified exploits the current constitution is vulnerable to.

For instance, since the 17th amendment, the fact that the Senate has to confirm nominees to the bench no longer constrains the federal judiciary to respect state perogatives. The "Fill the bench with judges who won't enforce the Constitution against you" exploit needs fixing. I don't see that as a minor fix, either.


Placing a leash on the judiciary is one of my proposed amendments.

One element of that reform should be lowering the threshold to amend the constitution to something achievable so courts do not feel pressure to rewrite the constitution on their own.

"constrains the federal judiciary to respect state prerogatives"

This is partially a matter of what the "state prerogatives" are. For instance, before and some time after the 17A, the Bill of Rights was not generally applied to the states. In time, the "privileges or immunities" and "liberty" as applied to state action was seen to be broader, including as to the 2A.

How the 17A changed this overall is unclear. Before the 17A, federal courts early on during the Marshall days restrained the states in various ways. They later did in other ways, including to protect a liberty of contract.

The change regarding the nature of federal power that Brett disagrees with was a general change in public understanding, including generally speaking state legislatures, that would not have been significantly limited by having state legislatures (voted by the people) choose senators.

Likewise, the states already was in the process of giving the people more and more of a role in appointing senators. In time, it was likely the state legislature appointment power there would go the route of the Electoral College. The independence of the state legislatures symbolic.

If we want to deal with "problems," it is helpful if we don't latch on to false causes.

Must we go through another promotional effort by our CO gasbag for his new work of friction?


You are welcome to join the constitutional convention party and propose your own amendments.

And our CO gasbag can continue as the Louie Gohmert of the legal bloo-o-sphere with his frictional self-promotion.

Brett's theory that it's Congress which prevents amendments seems to me to ignore a critical point: that Congress has a veto point in the system. That is, the amendment process is set up to give both the states (via ratification) and the Federal government (via Congressional submission and/or approval) the power to veto (or approve) any new amendments. This is consistent with the general theory of the time that both needed protection of their powers.

The flaw in this system is not that the states, per se, have too little power, it's that they have too much. Let's change the amendment system to popular approval: say, 55% of the voting-eligible population.

Brett (and it seems Prof. Levinson agrees -- see comment in next thread) argues that if the proper number of states "apply" that Congress "shall" (no veto allowed) call the convention. The convention acts & Congress' only restraint is choosing one of two ratification methods that again put the matter in the states' hands.

This would give Congress a rather limited "veto" power. As to its veto power when it itself proposes amendments, yes, that's part of the system. Brett can still think they are misusing it as a matter of policy so much that states have to use the convention route for self-help.

So, I don't know what Mark Field's comment adds to the whole thing.

Congress gets a structural protection: it can bypass the state legislatures -- by requiring approval in mini-conventions -- even if the state legislatures force it to call a convention against its will.

Agreed. Brett is not worried about that apparently. He's worried about Congress not proposing or sending amendments (proposed by conventions) at all.

I'm trying to see the area of disagreement here.

Where we disagree (and where I think you agree with me) is that Congress is functioning as intended. It (as representative of the Federal government) sees no need for change. That's exactly the power it was given in Art. V.

If the state legislatures, exercising their own Art. V power, want to bypass Congress, they can put in a call for a national convention. Congress can then, in turn, bypass the state legislatures by insisting on ratification only by the people.

As I see it, Brett has no legitimate complaint.

Brett to me seems to be arguing that there is a need for amendments and that Congress is not as a matter of good policy fulfilling it.

Strongest argument. He also clouds it by some sort of conspiracy argument that the Congress is wrongly blocking conventions (by feigning that the proposals are problematic) or that even if there was enough votes there, Congress would still not act.


"The flaw in this system is not that the states, per se, have too little power, it's that they have too much. Let's change the amendment system to popular approval: say, 55% of the voting-eligible population."

So that more of the amendments Congress isn't sending to the states will be ratified? Because I'm sure lowering the threshold like that would at least double the rate of ratification, maybe triple it. Let's see, what IS three times zero?

My position, in case I'm unclear, is that Article V isn't broken, the lack of amendments is because Congress doesn't want to amend the Constitution. They have no reason to amend it, because the Supreme court has been deferential enough that they get what they want without amendments.

In due course, I expect rather soon, the states are going to get pissed off enough to unambiguously call for a convention, and then Congress with either let it proceed, or all hell breaks loose.

the lack of amendments is because Congress doesn't want to amend the Constitution.

We'd probably all agree that this is true. You seem to think there's something wrong with that; most of us think that's the way the system is supposed to work.

So that more of the amendments Congress isn't sending to the states will be ratified?

Maybe. My proposal only affects the ratification process. Amendments could still be proposed the other ways (Congressional vote or Convention). It's possible that one or the other would find submission to a vote of the people more appealing and would therefore be more likely to submit them.

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By Brett's lights, the Supreme Court was rather "deferential" for years, but something happened around 1970 to stop the felt need?

Seems a bit curious -- it might be that the whole thing is a tad more complicated. But, if we just think "Congress" (as in national power) and "states," various things that might warrant amendment will be ignored. Let's say John Oliver's episode on allowing territorial residents to vote for President.

Might want to think bigger here, including the needs of all of "the people," who again play some role in all of this ... including by who they vote for to Congress.

Brett with this:

"In due course, I expect rather soon, the states are going to get pissed off enough to unambiguously call for a convention, and then Congress with either let it proceed, or all hell breaks loose."

gets into the prediction game. I was considering a "Cue to BB," but i'm not sure of Brett's record on predictions. But surely if "all hell breaks loose" it will exacerbate global warming. I would think that Brett as a self-proclaimed anarcho libertarian and 2nd A absolutist might relish that result.

"But surely if "all hell breaks loose" it will exacerbate global warming."

I think that rather depends on which circle of Hell you're talking about.

Of course it was Brett who brought up "Hell." So perhaps he has the burden of identifying which circle he intended/meant in the textualist/originalist sense. It might be presumptuous of me to suggest but a self-proclaimed anarcho libertarian like Brett could select the 2nd through 9th circles of Dante's Inferno, befitting most libertarians of various stripes. What the hell, interpretation/construction is necessary when an anarcho libertarian yells "Hell" in a crowded Internet? Perhaps Brett is getting long in the tooth, relying upon "depends."

And speaking of libertarians, check out Paul Krugman's 4/7/15 NYTimes Blog post "Rand Paul and the Empty Box" which closes with this:

"In any case, bear this in mind whenever you read some pontificating about a libertarian moment, or whatever. There are almost no genuine libertarians in America — and the people who like to use that name for themselves do not, in reality, love liberty."

Rand Paul selectively is concerned about government power though the degree he is makes him a useful person at times at least given the likely alternative in his own party.

If he was consistently libertarian about gays, abortion and certain foreign policy matters, it would be interesting. He also wouldn't be a much of a "R," which is how he labels himself, or likely to get support from primary/caucus voters.

"Libertarians" repeatedly like some sorts of liberty.

A response to Joe's:

"'Libertarians' repeatedly like some sorts of liberty. "

Yes, especially taking liberties with other people's liberties.

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