Constitutional Reform Transformed

Guest Blogger

This post was prepared for a roundtable on Can this Constitution be Saved?, convened as part of LevinsonFest 2022—a year-long series gathering scholars from diverse disciplines and viewpoints to reflect on Sandy Levinson’s influential work in constitutional law.

Mark A. Graber 

The title of this panel, “Can this Constitution be Saved,” reflects an evolution in Professor Sandy Levinson’s thinking that I want to resist for academic, political and personal reasons. Sandy’s seminal work of constitutional criticism has a less dire title, Our Undemocratic Constitution: How the Constitution Goes Wrong . . . . I was both enthusiastic about that project and a critic of Sandy’s proposal. I remain a critic of “Can this Constitution be Saved,” but I am less enthusiastic about Sandy’s increasing sense that the Constitution of the United States is illegitimate, a menace to the civil order and a threat to human survival. I think for academic, political, and personal reasons, we ought to acknowledge that the Constitution of the United States has significant imperfections, while acknowledging that the government of the United States is about as legitimate as most other constitutional democracies, that constitutional reform is unlikely to address threats to the civil order, and that constitutional failure is more likely to be a consequence of a near extinction or extinction event than the cause of such an event. 

The Very Imperfect Constitution 

More than two decades ago. Sandy began complaining about the Constitution of the United States. The original complaint was bipartisan. The Constitution was undemocratic. Persons of all political persuasions ought to agree on the need for passing the relevant constitutional amendments or ratifying a new constitution. Those constitutional amendments or the new constitution would not be implemented for at least a decade in order to prevent partisan self-dealing. The new constitutional framers would make democratic rules under a veil of ignorance, not knowing whether they would be beneficiaries when the time came to implement their constitutional reforms. 

Sandy’s initial proposals were a much welcomed effort to convert what he called the “Constitution of Settlement” into the “Constitution of Conversation.” The “Constitution of Settlement” consists of those constitutional provisions that are rarely taught in law schools because general agreement exists about their meaning. Such clauses are not only rarely litigated, but they are rarely subject to any conversation, even outside of legal circles. Americans, whether lawyers, teachers, farmers, factory workers or fourth graders, take state equality in the Senate for granted while debating whether the due process clause of the Fourteenth Amendment protects abortion rights and prohibits affirmative action programs. Sandy correctly recognized that this complacency was not warranted. As Americans should have learned over the two decades, state equality in the Senate has as much if not substantially more influence on abortion rights and affirmative action programs as the theories of constitutional interpretation that are talked about endlessly when constitutional matters are under discussion. Sandy was right to emphasize that the Constitution of the United States suffers from severe democratic flaws. Given that no country in the twenty-first century has adopted any practice central to the Constitution of 1787, the time was ripe for citizens of the United States to have a conversation about whether their constitutional institutions should be maintained, modified, or abandoned. 

I was and remain an enthusiastic proponent of this conversation, even as I strongly disagree with Sandy’s remedy. Sandy and I are both critical of the constitutional veneration that leads Americans to think that all will be well as long as constitutional edicts, properly interpreted, are followed. Both of us agree that constitutional structures contributed to the polarization that helped cause the Civil War and the polarization that is having baneful effects on contemporary politics. Governments may collapse when citizens have too little or too much faith in the constitution. Sometimes the heavens fall when people blindly follow rules that no longer serve their original purposes; sometimes the heavens fall when people insouciantly break rules that seem inconvenient at the moment. 

Sandy and I nevertheless draw different conclusions from our common agreement that the Constitution of the United States is badly flawed and that citizens should be aware of these flaws. I think the main point of constitutional criticism is to make citizens aware that constitutions never function as expected and are particularly likely to perform poorly in certain circumstances. A presidential process designed to ensure government by the worthy at present privileges government by raving egoists willing to put themselves, their families, and their friends through the tortures and frivolities of contemporary presidential campaigns. The moral of my story is that human virtue is necessary to preserve constitutional democracy, that there is no guarantee blindly following the rules laid down will ensure the true, the good, and the beautiful. While agreeing with my central contention that human virtue is necessary for a well-ordered constitutional democracy, Sandy draws a second conclusion from our agreement that the Constitution of the United States is badly flawed. He would have us pass significant constitutional reforms or have a new constitutional convention. We will be at least somewhat more likely to achieve constitutional and democratic goals, he insists, if we have a constitution designed to achieve under contemporary conditions what we now think of as the best regime goal and revised constitutional institutions that are more democratic than those we inherited from the Federalist, Reconstruction, and Progressive framers. 

My academic objections to the initial project were and remain fourfold. First, I think a major virtue of written constitutions is their capacity to limit the capacity of rulers to engage in self-dealing. The Electoral College may have dubious democratic credentials, but that means for determining the chief executive may be superior to allowing incumbent political parties to change the rules whenever doing so will provide political advantage. Second, I think all constitutions fail and fail quickly. The Constitution of 1787 was outdated by 1798. The Constitution of 1868 collapsed by 1876. Constitutional reform, even if done well, would be a temporary balm. Given these inevitable failures, I think that constitutional thinkers ought to figure out how to make the best of the Constitution we have and faults we know, rather than design a new constitution whose unknown faults are likely to become apparent very quickly. Third, while both Sandy and I agree that more than constitutional reform must be done for constitutional democracy to survive and extinction events avoided, I worry that constitutional reform may crowd out these other concerns and that successful constitutional reform will lead people to imagine that the other concerns have vanished. We will venerate the new Constitution, forgetting that human beings are responsible for creating the conditions that enable any constitution to function. Fourth, I am not as troubled as Sandy by the democratic deficiencies of the Constitution, however severe they may be. I think the difference in the democratic legitimacy of presidents who gain 52% of the two-party vote and presidents who gain 48% of the two party vote is minimal. Democracy has important consequences for government outputs. A system in which substantial numbers of people must approve government action to some degree reduces the tendency to fight unnecessary wars, increases the tendency to pay attention to the welfare of most people, and increases the tendency to rely on science rather than on magical thinking. Nevertheless, diminished returns may set in after fairly moderate levels of democratization. I think the United States crosses that threshold of democratic adequacy, even with the majoritarian weaknesses in contemporary constitutional institutions. 

Consider the Electoral College. Good progressives that most of us are at Levinsonfest, we almost certainly agree that Al Gore and Hillary Clinton would have governed better than George W. Bush and Donald Trump, respectively. But good progressives would almost certainly agree that John Q. Adams, Rutherford Hayes, and Benjamin Harrison would have governed better than Andrew Jackson, Samuel Tilden, and Grover Cleveland, respectively With respect to the comparison between Adams and Jackson, just ask descendants of the Trail of Tears. With respect to the Hayes/Tilden and Harrison/Cleveland comparisons, just consult Pamela Brandwein on the differences in racial politics when late nineteenth century were in the Oval Office than when Democrats were President. Given that the present score is 3-2 in favor of the Electoral College, little reason exists for thinking that over the next hundred years the Electoral College will generate significantly worse presidents than some other method of presidential selection. 

The same may be said of state equality in the Senate. Senate reform looks much better today than 150 years ago, at least from a progressive perspective. Today, small rural states with less diverse populations benefit from state equality in the Senate. During Reconstruction, Democrats bitterly condemned how state equality in the Senate gave disproportionate power to New England states that were far more anti-slavery and racially egalitarian than the rest of the country. Republicans favored the admission of underpopulated Western states as means to buttress political support for free labor and racial equality. Abraham Lincoln sought Nevada statehood as a means for obtaining the votes necessary to send the Thirteenth Amendment to the states, elect him as president, and ratify the constitutional ban on slavery. Underpopulated Colorado statehood proved necessary to elect the Civil War veteran Hayes over the racist Tilden. There is some doubt in my mind as to whether today’s gains from eliminating the Senate outweigh what would have been losses during Reconstruction, even knowing that Lincoln proved to be wrong with respect to Nevada. But if Lincoln were right, would Sandy be willing to sacrifice the Thirteenth Amendment and accept the consequences of a McClellan presidency to get rid of the “loathsome” Senate. 

The above paragraphs do not celebrate the anti-majoritarian elements of the Constitution, fear a runaway convention, or adopt the conservative position that we cannot determine the consequences of future change. The claim is partly that human beings do not do a good job writing enduring constitutions. New constitutions are likely to prove not much better than old constitutions at securing both constitutional and democratic games. The claim is also partly that the one thing constitutions do well, preventing deep manipulation of electoral rules, requires that they remain in their pristine form. 

The Illegitimate Constitution

Sandy’s constitutional complaints over the past two decades has evolved from a critique of an admittedly undemocratic constitution to a no holds barred assault on an illegitimate constitution. The Constitution is now an unfit foundation for government and not merely a set of fundamental laws that goes wrong in certain respects. With the rise of Donald Trump, Mitch McConnell, (the Yale law educated) Josh Hawley, Ron DeSantis, and the conservative five on the Supreme Court, constitutional reform is now a progressive project rather than a subject for bipartisan conversation. Progressive reformers are judged primarily if not solely on their commitment to constitutional reform. Constitutional reform must occupy this central place on the progressive agenda because progressive politics will be successfully only when constitutional institutions in the United States are democratized. The only hope to save constitutional democracy in the United States and prevent a near extinction or extinction event is to substantially reform the constitution. Given that such constitutional reform is politically impossible, we are doomed. 

I am less enthusiastic about this combination of constitutional anger, partisanship, and hopelessness. Sandy’s critique of the Constitution has intensified over the years in ways that may be out of proportion to the problem. Politicians may earn the radical label even when they do not call for abandoning state equality in the Senate. Constitutional reform at present may be a drag on rather than a boon for progressive politics. The crisis of constitutional democracy throughout the world suggest that the increasing probabilities of a calamitous future are grounded in universal governance problems rather than the distinctive flaws of any national constitutions. Worse, Sandy’s may be evolving from a lovable constitutional crank into a political depressive, even as he remains one of the most delightful companions in the American academy. Intervention is needed to allow our friend to develop alternative perspectives on the body politic that might improve our civil health and our emotional well-being. 

Political developments help explain the evolution of Sandy’s thinking. Changes in the structure of partisan competition in the United States during the twenty-first century transformed constitutional reform from a bipartisan proposal to a partisan project. The Constitution’s most serious democratic failings privilege disproportionately white, rural states in ways that have benefited the Republican party in the immediate past and likely to benefit the Republican party in the foreseeable future. In this new state of affairs, Democrats, progressive Democrats in particular, are the only persons interested in constitutional reforms that further democratize the United States. Frustrated by the contemporary constitutional bias toward Republicans, Sandy played George Washington at a constitutional convention that wrote a new progressive Constitution for the United States. Conservatives and libertarians have also written new constitutions, but the project of having a bipartisan conversation on constitutional reform appears to be temporarily tabled. 

Sandy’s language reflects this partial transformation of the constitutional reform project from a bipartisan call for conversation to a partisan call for action. Adjectival inflation has set in over the years as Sandy repeats his criticisms of the Constitution’s admitted failings. Regular readers of conlawprof and other blogs knows he “loathes” the Senate and thinks the Electoral College is “illegitimate.” I suspect somewhere I can find a Sandy quote to the effect that other constitutional provisions are “abominations” or the like. 

This language seems too strong. If one loathes the Senate, how does one feel about the Inquisition? “More loathsome.” Really loathsome.” Is the despicable Inquisition worse than the loathsome Senate? If the Electoral College is “illegitimate” does that mean persons have no legal/moral obligation to obey the law of the United States? Again, if the Electoral College is “illegitimate” how does one describe the legal status of the governing institutions established by various militia groups in the United States. If Russia establishes military rule over Ukraine, what vocabulary distinguishes that form of rule from rule by the Electoral College and Senate. 

Sandy now combines rhetoric that inflates the democratic failings with constitutional institutions with rhetoric that deflates the progressive credentials of politicians who do not campaign on constitutional reform. Consider Sandy’s often repeated comment that Bernie Sanders is not a true radical because he does not challenge the structural constitutional status quo. Medicare for all, will never happen, Sandy insists, unless Sanders can convince Americans to abandon the Electoral College and state equality in the Senate. 

Good reason exists for questioning the bona fides of most American “radicals.” The consensus historians of the 1950s pointed out that what is considered radical rhetoric in the United States often resembles mainstream progressive rhetoric elsewhere. Such Sanders proposals as “Medicare for All” and “a 21^st Century Economy Bill of Rights that guarantees all of our people the right to the basic necessities of life” are the stuff of left-center politics in Europe. Private property occupies a central place in the Sanders agenda, even as champions more regulation than most members of Congress. His proposals might reduce the number of billionaires in the United States but would hardly dent unprecedented global wealth inequalities. 

Sandy’s indictment seems more a lesser included offense than the main charge against Sander’s radical pose. The Sanders agenda is strongly progressive for a politician in the United States. He has wielded this agenda in a fairly successful, for better or worse, effort to move the Democratic Party leftward. Consider how much more progressive the legislation Congress might pass should Democrats in the 2022 election gain two seats in the Senate and hold on to the House than what Democratic majorities have offered in the recent past. Sanders might have been more radical/progressive (and less successful) had he also advocated abandoning the Electoral College. This seems more a difference of degree than of kind. Sanders for the United States is a fairly radical politician, even if he might have been more radical by espousing the cause of constitutional reform. 

The evolution of the constitutional reform project into a call for progressive action presents an obvious and less obvious political problem. The obvious problem, as Bernie Sanders knows well, is that most Americans revere the Constitution. Their number includes many Americans who ordinarily vote or can be persuaded to vote for progressive candidates. Calls for constitutional reform to occupy a central place on progressive constitutional agendas may illustrate the contemporary progressive penchant for introducing political issues on which progressives are sure to lose, see defund the police, into campaigns that progressives were previously either favored to win or at least had reasonable chances of some success. 

Constitutional reform as progressive political action may also contribution to ongoing changes in American progressivism that worries some, but not all progressives. Kim Lane Scheppele observes that divisions between cosmopolitans and localists are replacing economic class divisions in the United States and other constitutional democracies. Scheppele’s American cosmopolitans strongly favor the progressive positions in the culture wars, but are less focused on unions or economic inequality, even as they favor more progressive economic measures than Republicans. Constitutional reform is a good fit with the issues that attract cosmopolitan voters. Cosmopolitans have no particular allegiance to such particular national institutions as a longstanding constitution and are more inclined to think the United States should more closely resemble other constitutional democracies. Sandy’s correct observation that constitutional reform is likely to promote the cultural agenda of cosmopolitan progressives may be all that is necessary to convince progressive cosmopolitans to support the constitutional reform project. Other progressives, and I am in this camp, are less enthusiastic about the increasing cosmopolitan orientation of progressive and Democratic party politics. They believe, with Michael Kazin, that “Democrats w[i]n national elections and [are] competitive in most states when they articulate(s) am egalitarian economic vision.” This progressivism understands inflation as the main immediate issue of the day, even as progressive political economists such as Willi Forbath and Joseph Fishkin favor more progressive cultural measures than Republicans. The more populist voters this progressivism seeks to mobilize worry more about whether they can afford adequate medical care and pay for college than state equality in the Senate. David Law notes, democracy is a matter for people who have full stomachs. 

Swinging for the fences is nevertheless the right strategy when only a home run will do. Sandy is right to note that the government of the United States has become increasingly less able to respond to threats to constitutional democracy at home and human survival more globally. To the extent the Constitution of the United States inhibits government from reacting and reacting appropriately to climate change, public health crises, and nuclear proliferation, that constitution needs to be modified or replaced immediately, if not yesterday. Sometimes, and climate change may be one of those times, only a full loaf will do. 

The evidence nevertheless suggests that threats to constitutional democracy and human survival are global rather than particular to any nation. Constitution democracy is failing throughout the world. No nation is distinguishing themselves in the fight against climate change. This suggest that bad government is a universal problem. The contemporary problem is that the costs of bad government have increased exponentially. Alexander the Great posed no threat to Native Americans in what is now Canada. Coal plants in West Virginia threaten persons on the Indian coastline. A virus in China kills billions throughout the world. Given the varieties of constitutional forms that have failed to generate good government, the vital task of enabling humans to govern better is probably one in which constitutional design plays at most a minor role.

The transformed constitutional reform project is converting Sandy into a political depressive. Provide Sandy with opinion polls indicating the probability of Democratic control of the Senate is increasing and he responds, “it will not matter much until the Constitution is not fundamentally reformed or scrapped.” Point to an executive order combatting climate change and Sandy reminds us that this is a sign of constitutional dictatorship that will be killed by the Supreme Court. Many posts and blogs inform progressives that ordinary politics is useless, that they are most likely doomed because we live in the iron cage constructed by Article V. Why not champion such losing political issues as a new constitution in this environment, given that progressive victories are likely only to stall off the inevitable? Governors Abbott and DeSantis send their thanks for these repeated demonstrations that progressive politics in the contemporary constitutional regime is hopeless. But perhaps the job of a social scientist is to tell us we are doomed so we can live out the rest of our (shortened) life spans accordingly. 

That Sandy is becoming a political depressive does not mean his analysis is mistaken. Just because you are paranoid, the saying goes, does not mean they are not out to get you. The very distinguished psychiatrists, Dr. Jerome Frank (my deceased father-in-law) and Dr. Julia Frank (my spouse) in their classic Persuasion and Healing point out that depression reflects demoralization. Demoralized people cannot find meaning in the world. They see no paths to success. Demoralization is often rooted in sound empirical analysis. No one thinks I am crazy for thinking, although this is my heart’s desire, I will never play point guard for the New York Knicks. If that is my sole life goal, there is no fact that will counter my demoralization. The therapist. Frank and Frank maintain, is a rhetorician (Jerome Frank was influenced by Stanley Fish when both were at Johns Hopkins) who offers the patient alternative perspectives for seeing the world rather than a social scientist who provides an objective cure through scientific fact. My friends will combat my demoralization by persuading me that the mark of a meaningful life is participating in Levinsonfest rather than playing point guard for the Knicks. This is a matter of perspective, not objective analysis. 

Constitutional democracy in the United States may be doomed and human beings likely to suffer an extinction or near extinction event in the near future because government is no longer capable of responding to climate change, manmade or natural health threats, and nuclear proliferation, but harping on horrible futures may be a recipe for quiescence rather than for political action. What contemporary progressives need most is more contemporary progressives. More contemporary progressives can be obtained only by a constitutional politics that plays by the existing constitutional rules. The main challenge for contemporary progressive constitutional politics is finding some combination of cultural and economic concerns that enable union members and cultural warriors to unite uneasily rather than be at each other’s throats. Small victories should be celebrated as laying the ground for bigger victories. One step at a time is not only the recipe for progressive political success, but an antidote for progressive political depression. 

Constitutional reform is a project for successful political coalitions, not for those struggling just to maintain the status quo. There will be time to discuss progressive constitutional reform politically when and if progressives achieve the bigger victories necessary to put progressive constitutional reform on the political agenda. Sandy has provided the blueprint for that conversation. He is inspiring the next generation of progressive thinkers to think beyond the narrow four corners of the Constitution of 1787 when imagining a better regime. But what constitutional reforms that next progressive generation should champion awaits an unknown future, that includes the unknown circumstances that enable an unknown progressivism to gain power.

Mark A. Graber is the University System of Maryland Regents Professor at the University of Maryland. You can contact him at mgraber@law.umaryland.edu.