A Jeffersonian Proposal for the Constitution

There are two basic approaches one can take to thinking about the United States Constitution.  One is to treat it is a given, whether that refers only to the specific document proposed and ratified in 1787-88 with subsequent textual amendments or to the body of case law developed over the past two centuries.  In any event, the lawyerly task with regard to a constitution that is treated as already existing is to engage in debates about its interpretation. 

What, for example, are the powers of the President?  One might focus on the difference in language between Article One (“all powers herein granted”) and the more laconic language of Article II (“the executive power”) or on the meaning of the Commander-in-Chief Clause; or, commonly, one might parse at length various opinions issued by the Supreme Court over the years, including, of course, Justice Jackson’s now-canonical opinion in the Steel Seizure Case, with its “three-part test” elaborating the basic structure of presidential authority.  There are, of course, literally thousands of other possible examples.  If one looks only at the current docket of the Court, one might be asking about the constitutionality of taking race into account in university admissions; the legitimacy of requiring individuals to buy private health insurance; or the ability of states to adopt their own policies concerning the treatment of aliens who are in this country illegally. All of these cases invite lawyers to do what they do “best,” which is to converse (or shout) at one another about the best ways to discern constitutional meaning.  Some, of course, will proclaim the merits of an “originalism” that would limit constitutional meanings to what was accepted in 1791 or, for the Fourteenth Amendment, 1868; others, like myself, will instead focus on one or another variety of “living constitutionalism.”  A recent entrant on the scene, Jack Balkin’s brilliant book Living Originalism, tries to achieve a wedding of the twoThere are, of course, yet other possibilities.  But everyone will agree that the task at hand is to figure out how the existing Constitution should be interpreted.  It’s even possible that someone will concede, happily or not, that the “correct” meaning requires what Virginia legal theorist Fred Schauer labels “sub-optimal results.”  A devotee of Justice Scalia might join him in proclaiming that that’s just what it means to accept the notion that “the rule of law” is essentially the “law of rules” and that we should proudly assert our devotion to a “dead Constitution” rather than to believe that a judge is entitled to make it better according to contemporary values.

There is, however, a second approach, which is very different in its ramifications for how discussions of the Constitution should proceed.  Instead of being fixated on what the Constitution means, one instead asks whether the Constitution, given a stipulated meaning that may in fact not be at all difficult to discern, is in fact wise. One might call this a “Jeffersonian” approach to the Constitution inasmuch as it invites relentlessly asking whether the Constitution is serving us well.  This is, incidentally, an especially important question if we agree on constitutional meaning.  Disagreement, after all, suggests the possibility of legitimately interpreting the Constitution to achieve what we might describe as “happy endings.”  The situation is decidedly different, however, if we agree on constitutional meaning, but believe that it sets us up less for happy endings than for driving over a cliff.

I have recently published a new book, Framed:  America’s 51 Constitutions and the Crisis of Governance (Oxford University Press), that focuses almost exclusively on the wisdom of constitutional structures that are, almost without exception, obvious in their meaning.  Evidence of this obviousness is that they are rarely brought up in law school classes precisely because there is nothing to “argue about” in the only sense that lawyers and their professors define that term, which involves debates about meaning.  I distinguish between what I call The Constitution of Conversation—the obsession of lawyers and judges—and The Constitution of Settlement.  The latter involves those very important parts of the Constitution that are in fact never litigated and, therefore, made part of distinctly lawyerly conversations about conflicts in interpretation.

Consider my own favorite example:  When do we inaugurate new presidents, including, with some frequency, winners of elections that involve rather explicit repudiation of the incumbent president, whether on the ballot (as with, say, Herbert Hoover or Jimmy Carter) or not (as with George W. Bush)?  The answer is absolutely obvious, derived from reading the Twentieth Amendment added to the Constitution in 1933, which changed Inauguration Day from March 4, when FDR was inaugurated in 1933, to January 20, when he was inaugurated for the second time in 1937.  The Twentieth Amendment is in fact one of my favorite amendments to the Constitution inasmuch as it bespeaks the ability of the American public, led by elites interested in the quality of the operation of American political institutions, to address the wisdom of the status quo and, importantly, to change it.  The hiatus between election (in November) and inauguration (then in March) basically threatened to leave the United States without functioning governments inasmuch as the incumbent with legal authority had lost political legitimacy while the new “people’s choice” (putting the peculiarities of the electoral college to one side) had political legitimacy but not an iota of legal authority.  This was amply revealed, of course, during the Depression Winter itself of 1932-33.   So something was done about it!   No lawyer had to be consulted as to constitutional meaning.  Instead, we had a valuable public discussion about whether the country would be better served by changing this particular feature of the existing Constitution.  The 20th Amendment also had the virtue of curbing, even if not entirely eliminating, the role played by “lame-duck legislators” in making decisions about passing new laws.  Before, newly elected legislatures (and their members) had to wait until thirteen months after election to begin their actual work.  After the Amendment, the new Congress convenes the first week of January immediately following the election, which by any account is a distinct improvement.

Even if one agrees with me that Inauguration Day is a potentially significant aspect of our constitutional order in terms of its capacity to generate genuine mischief for the orderly operation of government in an ever-more-complex world, it is surely not the only—or even most important—example of the Constitution of Settlement.  More important, surely, are such examples as the allocation of power in the Senate—each state receives two  (and only two) senators; the length of terms for federal judges—suffice it to say they are not subjected to term or age limits; the length of the presidential term and the concomitant inability to “fire” an otherwise law-abiding (and therefore presumably unimpeachable) president who, however, has demonstrated sufficient misjudgments, particularly with regard to issues of war or peace, life and death, that one no longer feels even minimal confidence in his or her decisionmaking; or the procedures necessary to engage in formal amendment of the Constitution, set out in Article V and establishing the U.S. Constitution as the most difficult to amend constitution in the entire world.

An important theme of the book is that there are fifty-one constitutions within the United States if one takes into account the fifty states.  More to the point, these state constitutions can teach valuable lessons of their own.  Some of them, as with the national constitution, may offer cautionary lessons inasmuch as they help to explain the dysfunctionalities of given state politics.   Especially important in this regard is California’s constitution.  Consider only the near-inability to raise any taxes, given the constitutional requirement of a two-thirds vote in the legislature, coupled with the ability of the California electorate to pass legislation and even constitutional amendments through mechanisms of “direct” democracy.  But one should be aware that forty-nine of the fifty states—Delaware is the sole exception—include some aspect of direct democracy, and it is almost certainly a mistake to focus on what we might dislike about California’s experience with direct democracy to discredit any and all instantiations of that concept.  There are good reasons, given our experience over more than two centuries, to wonder whether the framers of the national Constitution, who militantly rejected any iota of direct democracy in favor of an exclusive reliance on “representative democracy,” might not have done a better job of creating a functioning democracy.

The distinguished journal The Economist is only one of many sources that could be cited for the description of California as “ungovernable,” and part of the reason has to do with the clear but unfortunate mechanisms of the California constitution itself.  But, increasingly, pundits and academic analysts writing about the national political system are prone to using such words as “dysfunctional,” “pathological,” or “paralyzed.”  Nor, regardless of one’s politics, can one look with equanimity at the fact that the current (as of March 2012) level of public approval of the United States Congress hovers slightly above 10% and that the only major national institution that currently warrants the “confidence” of more than 90% of the public is the military.  One can only wonder what public opinion analysts, had they existed in 1775-1776, would have found had they asked American colonists about their level of trust in King George and the systems of government established by Great Britain in North America.

Thomas Jefferson was wiser than he knew when he counseled against treating the Constitution as similar to the “ark of the covenant, too sacred to be touched” or, more importantly, to be changed.  All constitutions are human artifacts, and one must always remember the propensity to error of even the finest human beings (as we might concede most of the Framers to have been).  They were creatures of their own time, well aware that the future would bring different realities and almost certainly require different solutions to problems of government, including basic questions of design.  This point was made most eloquently by Jefferson’s close friend, James Madison, who concluded Federalist 14 by emphasizing the importance of learning the lessons of experience, including the necessity, on occasion, of forging off in what might appear radically new directions.  The new Constitution might well be regarded as “a novelty in the political world,” but that did not count against it.  “Is it not the glory of the people of America, he asked, “that, whilst they have paid a decent regard to the opinions of former times and other nations, they have not suffered a blind veneration for antiquity, for custom, or for names, to overrule the suggestions of their own good sense, the knowledge of their own situation, and the lessons of their own experience?”   The American people “accomplished a revolution which has no parallel in the annals of human society. They reared the fabrics of governments which have no model on the face of the globe.”  Nor, clearly, was the work done simply by ratifying the Constitution, for it is “it is incumbent “ on successor generations, “to improve” the Constitution in order to create a system of government that will make it more likely to achieve the magnificent aspirations set out in the Preamble to the document.

We best honor the Framers, then, by exhibiting their own willingness to challenge the verities of their times and to cease our own often “blind veneration” for the Constitution they created. What has been long settled may not be subject to conversations about “meaning,” but it is surely past time that it be analyzed for its wisdom in a 21st century America.

Reader Discussion

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on March 09, 2012 at 07:08:17 am

I think of the U.S. at this time in history like I think of the U.S.S.R right before it collapsed. They finally admitted their system didn't work and it was time to free their satellite states from their slavery. It's time for the U.S. to also admit it's failed experiment of unifying the states, the Constitution, didn't work and that system should just simply be abolished.

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Michael P. Shipley
on March 18, 2012 at 00:05:55 am

Very nice point, J. It certainly is scebone. But such an exercise is only really necessary if we feel a need to translate it into the American constitutional framework. The German constitutional framework contains some minor differences that might allow the illegalization of such speech independent of any such gymnastics. And it is rightly so. Posted by john fowles

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on March 18, 2012 at 05:56:48 am

The Constitutional convention was eozhuritad by Congress to look at modifying the Articles of Confederation to make it a more capable document. Congress felt it was not strong or specifi enough to serve as the foundation for a new country as it was. Members of the convention agreed and decided not matter what they did with the Articles it wouldn't be adequate, so they decided to write a new document, the Constitution. This document was very specific about the branches of gevernment, how they would operate, who would be in them, and how they would interact.Anti-federalists, some of whom were members of the convention felt they had overstepped their bounds by writing a new document. But Congress allowed it to pass on to the states for approval. Anti-federalists felt the Constitution, without a bill of rights or amendments, did not do enough to protect the rights of individuals and the states. The Federalist papers were a series of papers written to answer the fears and dire predictions about what would happen to the country under the constitution. Some Federalists stood firm on having no need for a bill of rights, others wavered and joined those who thought a second convention would be needed to approve amendments. The basic compromise that happened in the first 9 states to ratify was a notation that they gave their approval of the constitution with the understanding that amendments were needed. Some states had threatened to only give approval contingent on a 2nd convention but most backed away from that.

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on March 18, 2012 at 07:17:58 am

Sanders proposal has the right inntet but it is too narrow. We need to cut to the chase and make it global: "Only living human beings shall have the rights defined in this constitution; other legally defined entities shall not, and shall not be considered "persons" under the law." This makes it clear that NO organizations- for profit, non profit, religious, union, whatever- have "rights of personhood". If we settle for a partial ban, people will find a way around it for sure. We need to be absolutely clear about this line.

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on October 22, 2012 at 19:19:43 pm

And we will have a strong mdilde class when we have jobs. When you attack those who make the jobs, there are no jobs for the Middle class. You have never been hired by a poor person have you. Trickle down works in the real world just fine, just not in your Liberal fantasy world. The government can not control Demand. Clinton left our country in a recession that Bush had to fix, and had a lot to do with the current recession.

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on June 16, 2014 at 20:00:47 pm

[…] on amending it. “Instead of being fixated on what the Constitution means,” he writes, “one instead asks whether the Constitution, given a stipulated meaning that may in fact not […]

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June 17: A Critic of the Constitution | Jewish Currents

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