Saturday, November 14, 2020

The U.S. Constitution and the problem of Constituent Power

Sandy Levinson

 I just finished teaching a reading course (by Zoom) at the Harvard Law School on "Reforming the U.S. Constitution:  Is it Desirable?  Is it Possible?"  Although we (the roughly ten students and myself) did not agree on exactly what reforms might be desirable, there was general agreement that at least some might well be.  Indeed, I assigned materials across the ideological spectrum, including the so-called "Texas Plan" put forth by Texas Governor Greg Abbott that advocates nine important structural changes--one of them similar to that advocated by Georgetown Law Professor Randy Barnett that would allow state legislatures to nullify federal legislation--and Lloyd Cutler's article from 1980, "To Form A Government," that advocated a number of changes to strengthen what he thought was a unduly weak presidency.  The final reading was an excellent new book, MAKING A NEW AMERICAN CONSTITUTION, by George William Van Cleve, currently a visiting scholar at Georgetown and the author of previous excellent books on American constitutional history.  The book was self-published and is available on Amazon, but it clearly would have been published by a first-rate academic press had Van Cleve been willing to wait what probably would have been up to a year for the publication process to work.  Given the tenor of the times, his decision to self-publish is readily understandable, for his book in fact is a public service.  (Full disclosure:  I was happy to write an enthusiastic Foreword to the book, and Balkinization regular Mark Graber also contributed a strong blurb, as did University of Virginia history professor emeritus Peter Onuf.

In some ways, the book can be compared to the Declaration of Independence.  That is, much of consists of the equivalent of a "long train of abuses," or, perhaps more accurately, a "bill of particulars" with regard to the disconnect between the nature of the challenges facing us today as a society and the capacity of the existing Constitution to provide any hope for needed changes.  Obviously, Van Cleve and I share a lot of concerns about the extent to which the 1787 Constitution constructs an excess of veto points that rig the political system in favor of maintaining the status quo.  (Recall that I remain upset with Bernie Sanders for posturing as a "revolutionary" without once ever informing his younger supporters that significant constitutional reform is a predicate condition to achieving the reforms that he advocated.)  Van Cleve does a far better job than I have done of amassing evidence of the challenges we face, especially with regard to the consequences of economic inequality and the great advantages enjoyed by the well-off (nowhere better illustrated, of course, than in the current pandemic, where the contrast between the haves and have-nots is stunning, especially if the former are willing, unlike Donald J. Trump, to follow even minimal guidelines like wearing masks and maintaining social distance).

As already suggested, though, by reference to the title of my course, the real problem is whether badly needed constitutional reform is "possible" as well as desirable.  After all, part of the bill of particulars, for Van Cleve and myself, is Article V itself, and its basic message of "Abandon all hope" sent to anyone bold enough to suggest the need for constitutional amendment.  I earlier wrote about Alex Keyssar's superb book, Why Do We Still Have the Electoral College?, where the answer is basically because over 200 years of systematic opposition to the idiocy of that system has proved unavailing against the barriers of Article V, most dramatically in 1969, where the Senate, because of a filibuster led by white supremacists Southern senators Sam Ervin and Strom Thurmond, never voted on a proposal that had in fact gained the assent of two-thirds of the House of Representatives and perhaps would have gotten the two thirds had the Senate been allowed to vote, if one doesn't conflate support for the filibuster with necessary opposition to the bill being filibustered.  But we'll never know.

Van Cleve is fully aware of these problems, and his boldest chapter sets out his hopes for a National Constitutional Convention that would in essence be called and conducted by notables entirely independent of any formal political process that might be suggested by Article V.  Moreover, he advocates that any proposals suggested by the NCC, since it would be without authority to promulgate a new constitution directly, would get their validity from a process of popular ratification.  My students thought that this chapter, albeit extremely interesting, was in a literal sense incredible, since it is impossible, at least at the present moment, to imagine its happening, even if one supported the idea.  Along with Van Cleve, I also assigned Federalist 40, written by Madison, in which Madison defends, plausibly or not, the extraordinarily powers seized by the Framers in Philadelphia when measured against both the rather limited mandate of Congress--to suggest "revisions" in the Articles of Confederation--and, more importantly, the constraints of Article XIII of the Articles of Confederation, which required the assent of the legislatures of every one of the states for any amendment.  That's the reason that Rhode Island didn't even both to send any delegates to Philadelphia, because the state was foolish enough to believe that the text really mattered.  It did not.  But, of course, Philadelphia had George Washington, a truly noble Roman (albeit a slaveowner) who leant his incomparable presence to legitimating the Convention and then its handiwork.  South Africa had Nelson Mandela.  One practical problem is that we simply cannot imagine a group of broad-based civic leaders who would be trusted to engage in such a truly audacious enterprise, however necessary it is.

Jack Balkin and I several years ago defined one version of "constitutional crisis" to be the felt necessity to adhere to constitutional forms even if that in effect required driving over a cliff, presumably while shouting out "let the text be honored though the heavens fall."  The most basic, mysterious, issue connected with the entire concept of "popular sovereignty" and, therefore, rule by "the people" is how in the world one identifies those who can speak in the name of vox populi and reassert the original sovereignty--or constituent power (not precisely the same thing, as argued in another splendid new book by Joel Colon-Rios, Constituent Power and the Law--on which the legitimacy of our political order, if we take the Declaration of Independence seriously, depends.  Sooner or later, as, for example, control of the Senate is ever more embedded in states possessing far less than a majority of the total population--and, in addition, a skewed sample of that population, we will have to confront the ways in which the current American constitutional is both illegitimate, in terms of foundational political theory, and, perhaps more to the point, inefficacious or, as Hamilton wrote in Federalist 15, "imbecilic" in terms of actually being able to address the concerns that most Americans are in effect referring to when they declare that the country is going in the wrong direction and they are without sufficient "confidence" or "approval" of our basic national instituitons.


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