Thursday, March 30, 2017

Why Professor Marcus's arguments don't convince me

Sandy Levinson

There is much to agree with in David Marcus’s post, especially about the wide-open questions presented with regard to the actual conduct of an “Article V Convention.”  When Larry Lessig and I taught a seminar on “Article V Conventions” at the Harvard Law School three years ago, I developed the view, at least half-seriously, that Article V was purposely written as a Pandora’s box that would dissuade anyone from every actually supporting a new constitutional convention.  It is, one might say, the revenge of the Federalists who despised the very idea of a second convention and reluctantly acquiesced to the letter, but not the spirit, of that possibility.  In any event, I agree that Article V provides not a hint of a clue as to how delegates are chose, what the voting rules are, and the possibility of limitation.  As David well notes, this is not the same as saying that there is not a well-organized group of conservative law professors who are absolutely confident that there is a dispositive “original understanding” that will supply answers to these questions, including, for example, the proposition that state legislatures will simply pick the delegates and that each state will have a single vote in the subsequent convention (which, in addition, can be limited to a specific agenda set out in the states’ petitions that is a condition precedent for the convention’s being called).  I disagree strongly with the last of these propositions; I think that any convention would indeed be able to look into any and all parts of the  Constitution and suggest any amendments that might be deemed desirable.  With regard to the first two, I am confident that an attempt by the Koch Brothers and their friends to steamroller a convention in which, for example, Wyoming would have the same single vote as California (which, perhaps, would emulate Rhode Island in 1787 by refusing to show for such a politically illegitimate gathering) would generate the widespread contempt it would deserve. 

But Professor Marcus’s comments, however sound, do not at all lessen my strong support for a new constitutional convention.  The reason is simple:  I think we are on the brink of civil war, and I think that a major contributor to our dysfunctionality is a 1787 Constitution that, however (perhaps) defensible at the time, is a clear and present danger to us today.  We are afflicted today by an utter failure of political “leaders” and leading academics to offer any serious discussion of the (in)adequacy of the Constitution.  The default position is a reflexive cult of the Framers or, as in Marcus’s post, a sheer fear of what a new convention might bring.  I am not sure whether he agrees that it is a “broken” Constitution, but he does seem to adopt the view that the devil we know is better than an alternative devil we might clearly get through the ALEC-proposed convention.  Perhaps that is true, but, as already suggested, I am less pessimistic about the actual consequences of even that kind of convention.  I cannot imagine that what we might predict would be its proposed amendments would in fact gain the support of the constitutionally-required three-quarters of the states (which means, further, the support of at least 75 separate legislative houses in the same 38 states, assuming that one of them is Nebraska).   

It is crucial that opponents of the ALEC agenda truly engage with those calling for a new constitutional convention instead of engaging in reflexive denunciation.  I was happy, in a debate at the University of Texas Law School, to offer one cheer for Texas Governor Greg Abbott, who has endorsed a new convention and offered his ambitious nine-point “Texas plan” to reform our flawed document.  Not surprisingly, I strongly disagree with almost all of his specific proposals, but that does not entail that one reject the very possibility that we need constitutional change and that a new constitutional convention is, practically speaking, the only mechanism for such change to be initiated.  To put it mildly, there are lots of things the American people should be talking about these days.  In no particular order, consider only the following:

        * Whatever one thinks of the merits of Judge Neil Gorsuch, is there any good reason to accept the high probability that the 49-year-old Gorsuch, if confirmed, could easily serve (and therefore help to shape the law, whatever his disingenuous professions of judicial modesty) until 2050?  

        * Given the clear demonstration to one and all that Donald Trump, in addition to being a raving narcissist and possible sociopath, is stunningly ignorant about basic issues of public policy and totally unable to make “deals” with his own party in Congress--let alone the majority of the country that is properly appalled by him--why can’t we get simply get rid of him through a congressional vote of no confidence?  That would require neither lawyerly mumbo-mumbo about what constitutes a “high crime or misdemeanor”--does a violation of the Emoluments Clause count--or what many would probably view as psychiatric mumbo-jumbo about the extent of his personality disorders by way of deciding whether Mr. Trump is equipped to fulfill the duties of the President?  We wouldn’t even have to junk presidentialism; it would be enough to eliminate the near-absolute rigidity of the fixed term even if we might agree that it made sense in 1787.  The point is that it disserves us greatly today.

         * The very indeterminacy of how to conduct a new “Article V Convention” suggests that it would be both necessary and proper to fill in the blanks, as it were, to clarify a number of the ground rules.  The one thing we can be absolutely certain of is that no new convention would be composed of persons with the stature, to name the most obvious example, of George Washington.      

I could, of course, go on and on, as I have in (so far) two widely ignored books.  But the principal point is that I really do believe the future of the country is at stake and that rallying around our “good old Constitution” is part of the disease rather than the cure. 

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