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.

Reader Discussion

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.

on March 10, 2012 at 16:31:14 pm

My thanks to Prof. Stoner for his thoughtful remarks. At the very least, perhaps we can agree with John Stuart Mill (who I gather is thought well of in Liberty Fund circles) that a real cost of "veneration" is that we don't have the opportunity to hear fans of the "settled" Constitution spell out their arguments (which, after all, might be convincing). Instead, the kinds of "civics course" questions I am now most interested in--i.e., our basic structures and how they operate--are treated as dull and boring, in contrast, of course, to the exciting questions about rights that dominate legal education and most public discussion of the Constitution. He is very kind in his remarks about my writing on the Second Amendment, though, ironically, the Hellerl decision treated the Amendment as being entirely about an individual's right to protect him/herself against criminals invading the home, as against referring to the right of a civic republican people to take up arms collectively to protect themselves against potential tyranny.

read full comment
Image of sanford levinson
sanford levinson
on March 20, 2012 at 01:16:04 am

After reading the last cthpaer in Jack Rakove's book, I learned about how James Madison was apart of the 1787 Constitutional Convention. I learned that Madison wanted a certain government. He wanted a government that could extend the sphere. (Fed 10) Extending the sphere meant that the central power would have the biggest power and it would have a popular population-meaning everyone would work together. He believed bigger power would work better because each person would share less power so there would be less competition in their daily life. His type of government represents popular representation. State boundaries would only matter when each state would have to vote on something. Even though he felt this was the best government to follow, the other people in the committee of the Convention did not feel the same way. Madison felt defeated, but ended up okay in the end.

read full comment
Image of Aurelien

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.