Constitutional Auto-Update? A Response to Sanford Levinson
No one can doubt Sanford Levinson’s good faith in proposing what he calls the Jeffersonian enterprise of unsettling even the apparently settled parts of the Constitution to ask whether they are serving us well. After all, his honesty a few decades ago in questioning why the Second Amendment was ignored by those who saw its textual neighbor as the bulwark of liberty helped launch the modern jurisprudence that reinvigorated constitutional protection for the right to bear arms. Jefferson was an extreme among the Founders in suggesting that each generation frame a constitution for itself—every nineteen years—but no less a figure than George Washington wrote that “the foundation of our empire was not laid in the gloomy age of Ignorance and Superstition, but at an Epocha when the rights of man were better understood and more clearly defined, than at any former period.” Who could object to regular updates to our systems of government?
James Madison, for one. In Federalist 49 he wrote that “frequent appeals [to the people to amend the Constitution] would in great measure deprive the government of that veneration, which time bestows on every thing, and without which perhaps the wisest and freest government would not possess the requisite stability.” Madison quickly conceded that “in a nation of philosophers, this consideration ought to be disregarded,” since “a reverence for the laws would be sufficiently inculcated by the voice of enlightened reason,” but then explained, “a nation of philosophers is as little to be expected as the philosophical race of kings wished for by Plato.” He concluded, “the most rational government will not find it a superfluous advantage to have the prejudices of the community on its side.”
The problem was not only the risk of instability; Madison certainly understood that intransigence, too, entails risk. It was that easy constitutional change was unlikely to correct constitutional defects; since the same parties that caused the problems were likely to be involved in attempts to address them, it could exacerbate, not resolve, partisan abuse of constitutional forms. Madison was not a lawyer, but one can see in his argument the old presumption of the common law in favor of precedent, at least until clear and cogent reason rises against it, as improvements in knowledge or significant changes of circumstance would allow. Alexander Hamilton may have been more confident of innovation than his co-author in The Federalist, but he, too, expressed skepticism that re-engineering institutions would readily solve political problems, writing in Federalist 82 that “’tis time alone that can mature and perfect so compound a system, can liquidate the meaning of all the parts, and can adjust them to each other in a harmonious and consistent whole.” Jefferson himself explains in his brief autobiography that he and his fellows on the Committee of Revisors in Revolutionary Virginia arrived at the same insight, deciding not to enact a whole new code but instead to preserve the common law and propose specific reforms, for example the abolition of primogeniture and religious establishment. Great political decisions can require great constitutional changes: the Civil War as a test of constitutional government would have been a failure if its conclusions had not been embodied in the constitutional text, even though it took a century for them to be brought to full actual effect. But that should not upset the presumption in ordinary times for the tried and true.
By all means let us debate, at least as an academic exercise, the reasons behind the settled provisions of the Constitution. We too live in enlightened age—or maybe I should say, we still live in an enlightened age—and even the strongest traditions are vulnerable if their advocates have no practice defending themselves in the tumble of public debate. (Ask any friend of heterosexual lifelong marriage about the risks of taking social practices for granted.) Who knows? Such debate may have the salutary effect of unsettling the self-important theologies of constitutional meaning to which Professor Levinson alludes. I for one expect that debating the wisdom of the Constitution will show it not to be arcane or arbitrary in even its most technical provisions, the ones that aggravate partisans eager to change things fast, but in fact to be wiser than they are. I look forward to reading Levinson’s new book, Framed, keeping in mind that the metaphor of framing suggests the Constitution cannot be altered without tearing apart the rooms in which we live, but that useful remodeling might be possible while leaving the frame intact.