Abandon all hope: Why I persist

Sandy Levinson

David Super joins most of my family, friends, and colleagues in denouncing the idea of a new constitutional convention.  I persist, and in fact more strongly than ever, in believing that a new convention is a vital necessity.  I won't rehearse all of the arguments that I've made over the years, but I do have a few observations about David's posting.

First, I think it's fair to say that we agree that the 1787 Constitution was (indefensibly?) undemocratic in terms of the structures it established, the Senate being the most obvious example, but Article V probably being most telling, when all is said and done.  The fact that it serves to make constitutional amendment, especially about anything truly controversial, basically impossible means not only that we continue to be trapped in what I have sometimes called the "iron cage" of a radically defective Constitution, but also that we as a polity have seemingly lost any capacity to engage in serious "reflection and choice" (see Federalist 1) about how we are to be governed.

As I read David's posting, he is saying that political progressives should renounce the very idea of an "Article V Convention" for a variety of reasons, some of them very good.  When Larry Lessig and I co-taught a seminar at Harvard about four years ago on what such a convention might look like, I concluded that the Framers purposely constructed in Article V the equivalent of a Pandora's box, precisely because Article V gives not a clue as to how such a convention would actually proceed.  E.g., who exactly selects the delegates; how many would there be; what voting rules would be adopted; what, if any limits, are there with regard to the issues that a convention might consider.  (David, like most opponents, offers a parade of horribles by which a convention would in essence repeal the First Amendment.  Both Larry and I are considerably more sanguine, because the very supermajoritarian of the ratification process assures, as a practical matter, that few if any truly radical measures, including repeal of the Bill of Rights, would actually be ratified.  But the fear of a "runaway convention" has a great deal of purchase on people who should really know better, unless they are even more despondent about their fellow citizens than I am and believe that Donald Trump has the support not only of less than 2/5 of the American public, but in fact truly represents the overwhelming number of contemporary Americans.  There is literally no reason to believe this.)  A basic problem of the contemporary Left is that it has fundamentally lost any faith in what used to be called "the people."  Thus the attraction to technocrats (as Obama turned out to be in spite of a quite different campaign in 2008, which led me to support him over Hillary Clinton).

David's advice is to win elections and create a critical mass in favor of what might be called "ordinary amendment," i.e. proposed by 2/3 of each house of Congress.  (He also makes the altogether correct point that Citizens United could be revised with the replacement of one of the Republican conservatives by a moderate Democrat.)  But if one believes, as I do, that the House is fatally affected by the fact that everyone is elected in single-member districts (with, most of the time, a first-past-the-post electoral process), then, as a matter of brute fact, that can be changed only by a constitutional convention for the simple reason that it is literally inconceivable that members of the House, who benefit from the status quo, would vote to repeal the 1842 Act requiring single-member districts.  (The paradox, of course, is that as a matter of legal fact, a constitutional amendment is not in the least required; it is simply that Congress will never agree to pass the required legislation.)  If, as I personally wish were the case, we were like many American states (and foreign countries, in including some possibility for direct democracy via initiative and referendum, then there would in fact be a good alternative.  But, as Madison proudly proclaimed in Federalist 63, the Constitution was designed to put "the people" into a permanent coma, capable of acting only through "representatives."

As someone who currently believes that the single worst feature of our radically defective Constitution is the lack of any no-confidence process to fire a President who has (justifiably) lost public confidence, I presume that a constitutional amendment would be necessary to supplement the obviously inefficacious Impeachment Clause and 25th Amendment.  (As I've argued previously, the worst thing about the Impeachment Clause is that it's basically been captured by lawyers who seem interested only in arcane disputes about what counts as a "high crime and misdemeanor" as against a far more necessary discussion of the "fitness" of someone to have the immense power given the President.  It is true that Congress could propose such an amendment, but one of the awful truths is that no one in the broad political elite, other than right-wing Republicans, is willing even to broach the reality that we have a defective Constitution.

There is increasing (and correct) agreement that life tenure for Supreme Court justices is an idea whose time should have gone.  Ben Sasse gave a truly fine speech at the Kavanaugh hearings daring Democrats to support the end of life tenure.  To their shame, none of the Democrats responded to his challenge.  I'm in the minority of legal academics who believe that life tenure could in fact be modified with a statute authorizing new appointments once a justice has served 18 years, with the nine member Court to consist of the nine-most-recently-appointed members, while the displaced judge remains a member of the Court, who can sit if one of the nine has to recuse him or herself and can "visit" so-called "inferior" courts, which a number of retired justices have done.

We should learn to walk and chew gum at the same time.  That is, it is absolutely essential that we do whatever we can to smash the GOP coalition in the House and Senate.  Whatever doubts one might have about Democratic candidates pales in light of the collaboration of the GOP with a monumentally unfit and dangerous president.  But we are absolutely kidding ourselves if we think that such a victory would in fact enable the passage (and signing by either Trump or Pence) of progressive legislation.  I have told many people that if Hillary had won, most of us would be just as depressed today, though for slightly different reasons, because "we" would be looking forward to an electoral bloodbath in November, with Republican victories, and then an almost certain Republican victory in 2020 by a more politically competent Trumpista.  

Progressies, including my friends in the American Constitution Society, are making a big mistake in refusing even to address the possibility that the Constitution is radically defective.  If one doesn't believe that, then of course one ought to agree with David.  If it ain't broke, then by definition it doesn't need fixing.  But what if it is broken and constitutes its own danger to our collective future?

I hope that David will offer his own further reflections, either as a comment or in an independent posting.


Posted 10:27 PM by Sandy Levinson [link]