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Jack Balkin: jackbalkin at yahoo.com Bruce Ackerman bruce.ackerman at yale.edu Ian Ayres ian.ayres at yale.edu Corey Brettschneider corey_brettschneider at brown.edu Mary Dudziak mary.l.dudziak at emory.edu Joey Fishkin joey.fishkin at gmail.com Heather Gerken heather.gerken at yale.edu Abbe Gluck abbe.gluck at yale.edu Mark Graber mgraber at law.umaryland.edu Stephen Griffin sgriffin at tulane.edu Jonathan Hafetz jonathan.hafetz at shu.edu Jeremy Kessler jkessler at law.columbia.edu Andrew Koppelman akoppelman at law.northwestern.edu Marty Lederman msl46 at law.georgetown.edu Sanford Levinson slevinson at law.utexas.edu David Luban david.luban at gmail.com Gerard Magliocca gmaglioc at iupui.edu Jason Mazzone mazzonej at illinois.edu Linda McClain lmcclain at bu.edu John Mikhail mikhail at law.georgetown.edu Frank Pasquale pasquale.frank at gmail.com Nate Persily npersily at gmail.com Michael Stokes Paulsen michaelstokespaulsen at gmail.com Deborah Pearlstein dpearlst at yu.edu Rick Pildes rick.pildes at nyu.edu David Pozen dpozen at law.columbia.edu Richard Primus raprimus at umich.edu K. Sabeel Rahmansabeel.rahman at brooklaw.edu Alice Ristroph alice.ristroph at shu.edu Neil Siegel siegel at law.duke.edu David Super david.super at law.georgetown.edu Brian Tamanaha btamanaha at wulaw.wustl.edu Nelson Tebbe nelson.tebbe at brooklaw.edu Mark Tushnet mtushnet at law.harvard.edu Adam Winkler winkler at ucla.edu Compendium of posts on Hobby Lobby and related cases The Anti-Torture Memos: Balkinization Posts on Torture, Interrogation, Detention, War Powers, and OLC The Anti-Torture Memos (arranged by topic) Recent Posts The U.S. Constitution and the problem of Constituent Power
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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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Books by Balkinization Bloggers ![]() Jack M. Balkin, What Obergefell v. Hodges Should Have Said: The Nation's Top Legal Experts Rewrite America's Same-Sex Marriage Decision (Yale University Press, 2020) ![]() Jack M. Balkin, The Cycles of Constitutional Time (Oxford University Press, 2020) ![]() Mark Tushnet, Taking Back the Constitution: Activist Judges and the Next Age of American Law (Yale University Press 2020). ![]() Andrew Koppelman, Gay Rights vs. Religious Liberty?: The Unnecessary Conflict (Oxford University Press, 2020) ![]() Ezekiel J Emanuel and Abbe R. Gluck, The Trillion Dollar Revolution: How the Affordable Care Act Transformed Politics, Law, and Health Care in America (PublicAffairs, 2020) ![]() Linda C. McClain, Who's the Bigot?: Learning from Conflicts over Marriage and Civil Rights Law (Oxford University Press, 2020) ![]() Sanford Levinson and Jack M. Balkin, Democracy and Dysfunction (University of Chicago Press, 2019) ![]() Sanford Levinson, Written in Stone: Public Monuments in Changing Societies (Duke University Press 2018) ![]() Mark A. Graber, Sanford Levinson, and Mark Tushnet, eds., Constitutional Democracy in Crisis? (Oxford University Press 2018) ![]() Gerard Magliocca, The Heart of the Constitution: How the Bill of Rights became the Bill of Rights (Oxford University Press, 2018) ![]() Cynthia Levinson and Sanford Levinson, Fault Lines in the Constitution: The Framers, Their Fights, and the Flaws that Affect Us Today (Peachtree Publishers, 2017) ![]() Brian Z. Tamanaha, A Realistic Theory of Law (Cambridge University Press 2017) ![]() Sanford Levinson, Nullification and Secession in Modern Constitutional Thought (University Press of Kansas 2016) ![]() Sanford Levinson, An Argument Open to All: Reading The Federalist in the 21st Century (Yale University Press 2015) ![]() Stephen M. Griffin, Broken Trust: Dysfunctional Government and Constitutional Reform (University Press of Kansas, 2015) ![]() Frank Pasquale, The Black Box Society: The Secret Algorithms That Control Money and Information (Harvard University Press, 2015) ![]() Bruce Ackerman, We the People, Volume 3: The Civil Rights Revolution (Harvard University Press, 2014) Balkinization Symposium on We the People, Volume 3: The Civil Rights Revolution ![]() Joseph Fishkin, Bottlenecks: A New Theory of Equal Opportunity (Oxford University Press, 2014) ![]() Mark A. Graber, A New Introduction to American Constitutionalism (Oxford University Press, 2013) ![]() John Mikhail, Elements of Moral Cognition: Rawls' Linguistic Analogy and the Cognitive Science of Moral and Legal Judgment (Cambridge University Press, 2013) ![]() Gerard N. Magliocca, American Founding Son: John Bingham and the Invention of the Fourteenth Amendment (New York University Press, 2013) ![]() Stephen M. Griffin, Long Wars and the Constitution (Harvard University Press, 2013) Andrew Koppelman, The Tough Luck Constitution and the Assault on Health Care Reform (Oxford University Press, 2013) ![]() James E. Fleming and Linda C. McClain, Ordered Liberty: Rights, Responsibilities, and Virtues (Harvard University Press, 2013) Balkinization Symposium on Ordered Liberty: Rights, Responsibilities, and Virtues Andrew Koppelman, Defending American Religious Neutrality (Harvard University Press, 2013) ![]() Brian Z. Tamanaha, Failing Law Schools (University of Chicago Press, 2012) ![]() Sanford Levinson, Framed: America's 51 Constitutions and the Crisis of Governance (Oxford University Press, 2012) ![]() Linda C. McClain and Joanna L. Grossman, Gender Equality: Dimensions of Women's Equal Citizenship (Cambridge University Press, 2012) ![]() Mary Dudziak, War Time: An Idea, Its History, Its Consequences (Oxford University Press, 2012) ![]() Jack M. Balkin, Living Originalism (Harvard University Press, 2011) ![]() Jason Mazzone, Copyfraud and Other Abuses of Intellectual Property Law (Stanford University Press, 2011) ![]() Richard W. Garnett and Andrew Koppelman, First Amendment Stories, (Foundation Press 2011) ![]() Jack M. Balkin, Constitutional Redemption: Political Faith in an Unjust World (Harvard University Press, 2011) ![]() Gerard Magliocca, The Tragedy of William Jennings Bryan: Constitutional Law and the Politics of Backlash (Yale University Press, 2011) ![]() Bernard Harcourt, The Illusion of Free Markets: Punishment and the Myth of Natural Order (Harvard University Press, 2010) ![]() Bruce Ackerman, The Decline and Fall of the American Republic (Harvard University Press, 2010) Balkinization Symposium on The Decline and Fall of the American Republic ![]() Ian Ayres. Carrots and Sticks: Unlock the Power of Incentives to Get Things Done (Bantam Books, 2010) ![]() Mark Tushnet, Why the Constitution Matters (Yale University Press 2010) Ian Ayres and Barry Nalebuff: Lifecycle Investing: A New, Safe, and Audacious Way to Improve the Performance of Your Retirement Portfolio (Basic Books, 2010) Jack M. Balkin, The Laws of Change: I Ching and the Philosophy of Life (2d Edition, Sybil Creek Press 2009) ![]() Brian Z. Tamanaha, Beyond the Formalist-Realist Divide: The Role of Politics in Judging (Princeton University Press 2009) Andrew Koppelman and Tobias Barrington Wolff, A Right to Discriminate?: How the Case of Boy Scouts of America v. James Dale Warped the Law of Free Association (Yale University Press 2009) Jack M. Balkin and Reva B. Siegel, The Constitution in 2020 (Oxford University Press 2009) Heather K. Gerken, The Democracy Index: Why Our Election System Is Failing and How to Fix It (Princeton University Press 2009) ![]() Mary Dudziak, Exporting American Dreams: Thurgood Marshall's African Journey (Oxford University Press 2008) ![]() David Luban, Legal Ethics and Human Dignity (Cambridge Univ. Press 2007) ![]() Ian Ayres, Super Crunchers: Why Thinking-By-Numbers is the New Way to be Smart (Bantam 2007) ![]() Jack M. Balkin, James Grimmelmann, Eddan Katz, Nimrod Kozlovski, Shlomit Wagman and Tal Zarsky, eds., Cybercrime: Digital Cops in a Networked Environment (N.Y.U. Press 2007) ![]() Jack M. Balkin and Beth Simone Noveck, The State of Play: Law, Games, and Virtual Worlds (N.Y.U. Press 2006) Andrew Koppelman, Same Sex, Different States: When Same-Sex Marriages Cross State Lines (Yale University Press 2006) Brian Tamanaha, Law as a Means to an End (Cambridge University Press 2006) Sanford Levinson, Our Undemocratic Constitution (Oxford University Press 2006) Mark Graber, Dred Scott and the Problem of Constitutional Evil (Cambridge University Press 2006) Jack M. Balkin, ed., What Roe v. Wade Should Have Said (N.Y.U. Press 2005) Sanford Levinson, ed., Torture: A Collection (Oxford University Press 2004) Balkin.com homepage Bibliography Conlaw.net Cultural Software Writings Opeds The Information Society Project BrownvBoard.com Useful Links Syllabi and Exams |