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Another Reply to Sandy Levinson (and his Critics)

Like uncounted others, I am tremendously fond of the walking paradox that is Sandy Levinson—the kindest, most generous soul you’ll ever meet, who picks constitutional arguments with the gusto of a barroom brawler. It’s a great pleasure that of all the gin joints in the world, he has walked into ours. As one of the regulars, I have a few responses to his provocative post ; I’ll let Sandy pick the points he’d like to pursue.

We share a common point of departure: an excessive preoccupation with “meaning” has tended to crowd out argument over the Constitution itself—its “wisdom.” I also agree that the Founders invited that argument. They knew (and they said) that the document was imperfect, and they created an amendment process to iron out the mistakes.

I’m inclined to think, and Sandy seems to agree, that the process has actually worked quite well with respect to the Constitution’s mechanics (the “Constitution of Settlement,” in Sandy’s phrase). Sandy’s favorite example, the Twentieth Amendment, has a bunch of cousins: the Twelfth Amendment, which fixed the obviously dopey (and near-catastrophic) presidential election mechanism; the Twenty-Second, Twenty-Third, Twenty-Fifth, and Twenty-Seventh. Arguably, you can add the Eleventh Amendment. Surely, you should add the amendments that have made the Constitution more “democratic” in Sandy’s sense: the Seventeenth, Nineteenth, Twenty-Third, Twenty-Fourth, and Twenty-Sixth. I would certainly add the Sixteenth Amendment, providing a broad exemption to a tax apportionment requirement that is absurd as a matter of federalism theory, at war with the constitutional principle that the federal government governs citizens (not states), and explicable only as part of the slavery bargain.

You can argue that the amendment process is too hard. I’m not going to join the “hardest in the world” debate because I can’t think of a plausible metric. Australia is notorious for failed amendments—because its process is even “harder” than ours? Because most of the proposals, like the tidal wave of proposed amendments in this country, were irredeemably stupid? But I do have several responses to the “too hard” claim.

First, if we have failed to “fix” certain undemocratic institutions that scandalize the ConLaw profession (such as the electoral college), that’s because the American people, unlike the profession, are by and large comfortable with them. Second, and to repeat Jim Stoner’s eloquent post, amendments should be hard. A mutable Constitution, Madison rightly noted, can never earn ” that veneration, which time bestows on every thing” (not blind veneration, but veneration nonetheless). Third, and most important, the amendment process appears to have performed a valuable sorting function. The amendments all fix mistakes. They are all entirely consistent with the constitutional architecture and the “genius of republican government,” in John Marshall’s words. (This is also true of the Bill of Rights and the Civil War Amendments; I’ve left them out because they obviously differ from the “normal” amendment process.) The amendments improve the operation of the system, or they extend the blessings of liberty to previously excluded constituencies. They do not do what democratic enthusiasts left and right want to do: crank social causes, often dressed up as rights, into the Constitution. The lone exception is the prohibition amendment, and that was repealed. (Not “superseded” or declared inoperative explicitly or by clear implication: “repealed” by the Twenty-First Amendment, to make clear that it never belonged in the Constitution in the first place.)

On this account, I disagree (reluctantly but firmly) with brother Rappaport’s observation that the Supreme Court’s “Living Constitution” has impeded the use of the amendment process. The Court’s most aggressively non-originalist escapades all arise over rights and social causes (nowadays, mostly having to do with sex). The New Deal’s victory and the post-New Deal Congress and Court took the oomph out of a long-running, nearly successful effort to constitutionalize a prohibition against child labor: should that be in the Constitution, along with an exemption (in force to this day) for family farms? Should we constitutionalize contraceptives? Abortion? I doubt that those sorts of decisions forestalled a push for amendments; but if that is the case, it’s the first vaguely plausible pro-Roe v. Wade argument that I’ve yet heard.

All this in defense of the much-maligned amendment process. A Convention—the subject of the earlier Epstein-Levinson exchange—is a different thing altogether. I share Richard’s horror of the prospect, for reasons that go deeper than the prospective body’s composition. To paraphrase Madison, I am convinced that a convention composed entirely of libertarians would still be a mob.

If modern social science teaches anything, it’s that we wildly overestimate the rationality of collective assemblies: they can produce virtually any result, including results that match no one’s preferences. To forestall that result, you’d need at least two things: a modern-day Madison who limits the agenda, bangs it into constitutional shape, and controls it along the way; and bodies of delegates and ratifiers who can look beyond immediate partisan calculus and instead “to our Posterity,” in the words of the Preamble. Abandon that long-term perspective and accept the Jeffersonian proposal for a “democratic” constitution for a single generation, or something like it: it’s going to be an interest group festival, a scramble to entrench temporary preferences and advantages, and at most a foul compromise. Like the one and only Jeffersonian, single-generation bargain the Convention did accept and the Constitution did enshrine, dealing with the importation of slaves until 1808. Like ordinary modern American politics. And like the politics that would dominate any modern-day convention.

This, I think, is the deepest disagreement between us: I think the fundamental problem of American politics, even as it is, is an excess of democracy. Sandy mentions the appalling lack of public confidence in our public institutions (other than the military, whose operation is far removed from democratic impositions and—therefore?—still functions). Public confidence collapsed in the 1960s and has further eroded since. That process has been accompanied by a relentless democratization of American politics—the demolition of the congressional committee system, the “reform” of administrative law and the opening of agencies, public disclosure and access laws, revamped primaries, and so on. These things may be good or bad; the one thing they manifestly haven’t done is to restore public confidence. What they have done is to foster the deranged notion that our politics fails us because our representatives “go native” in Washington, when in fact it fails because our representatives are perfectly monitored and elections (at least for the House) have become a near-equivalent of a recall: one bad move, and you’re gone. Democratic institutions, operating under those conditions, can produce universalist legislation (earmarks and transportation bills); demagogic “emergency” measures (Dodd-Frank); or brutal cramdowns (ObamaCare). They can’t produce anything else.

No convention called in the name of “restoring democracy” would want to focus on or fix democracy-induced ailments; and even if it wanted to, it wouldn’t know how. (Various Tea Party contingents are advocating precisely the amendments that have made California ungovernable.) So, yes: it’s past time to debate the Constitution’s wisdom rather than its hermeneutics. And the first conclusion of that debate, it seems to me, should be a deeper appreciation of its wisdom.

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