Sandy Levinson and Our Good Constitution

Sandy Levinson has once again written a piece, The Imbecilic Constitution, about how bad the U.S. Constitution is.  Since I believe that the goodness of the Constitution is a powerful reason for following it, I strongly disagree.  I have critiqued Sandy’s claim’s before.

Sandy writes:

But if one must choose the worst single part of the Constitution, it is surely Article V, which has made our Constitution among the most difficult to amend of any in the world. The last truly significant constitutional change was the 22nd Amendment, added in 1951, to limit presidents to two terms. The near impossibility of amending the national Constitution not only prevents needed reforms; it also makes discussion seem futile and generates a complacent denial that there is anything to be concerned about.

It was not always so. In the election of 1912, two presidents — past and future — seriously questioned the adequacy of the Constitution. Theodore Roosevelt would have allowed Congress to override Supreme Court decisions invalidating federal laws, while Woodrow Wilson basically supported a parliamentary system and, as president, tried to act more as a prime minister than as an agent of Congress. The next few years saw the enactment of amendments establishing the legitimacy of the federal income tax, direct election of senators, Prohibition and women’s right to vote.

Sandy assumes there are no amendments in large part because it is so difficult to amend the Consitution.  I disagree.  As I wrote previously in commenting on Sandy, a significant part of the problem is that the nonoriginalist Supreme Court judicially amends or updates the Constitution, so that the country never really has the opportunity to formally amend it:

Many people point to the fact that so few amendments have passed, as evidence of its excessive stringency, but I place the responsibility not on the amendment process, but on nonoriginalism.  Every time an amendment might have passed – for example, during the New Deal, during the environmental decade of the 1970s, the proposed ERA – the Supreme Court has stepped in to “update” the Constitution, thereby superseding the amendment process.  If we had an originalist Supreme Court, I predict that many more amendments would have been enacted.

The amendments that Sandy mentions — the federal income tax, direct election of senators, Prohibition and women’s right to vote – were enacted at a time before there was nearly as much nonoriginalism.  In our day, everyone one of these amendments, except for the direct election of Senators, would likely have been accomplished by judicial amendment.  Why pass the 19thAmendment giving women the right to vote?  Just hold that it is covered under the Equal Protection Clause.

I agree with Sandy that our Constitution has some problems (although not the ones that Sandy identifies).  But I don’t think the strictness of the amendment process is one of them.  That process would work much more effectively if the Supreme Court got out of the game of judicially amending the Constitution.

Reader Discussion

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on June 01, 2012 at 18:12:13 pm

The Ten Planks to the Communist Manifesto are more relevant to America then its own Constitution. Because directly or indirectly all Ten Planks to the Communist Manifesto have been implemented into the American Fabric. The Constitution has been so twisted,misinterpreted or ignored that if you seriously bring up the Constitution as a defense in Tax cases,Gun Rights cases(especially on a local level) Legal Tender and hard money cases,property rights cases or for that matter any action that truly questions or challenges any existing law that anchors or expands State Powers,you will be laughed out of court,with the judge probably leading the laughing. Truth be told that in Law School today ,out of 3 years of education into the Law only about 3 days are spent on the Constitution. In the end,the Constitution sits on a shelf gathering dust alongside the Common Law. Instead we have courts of equity where the average citizen is nothing but a walking corporation that is licensed to due what was once a right. Social Security numbers, gun permits,drivers licenses,building permits, whatever you do today you have to ask permission. We have changed from a nation of sovereign citizens to a nation of serfs. The Constitution,in any meaningful way is long gone.

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libertarian jerry
on June 02, 2012 at 07:17:45 am

It's not as though Sandy is unaware of this argument. He merely dismisses it out of hand.

I think it's not so much a belief on his part that the Constitution can't be amended, as that he believes it can't be amended in ways he'd approve of. Which is probably true!

It's my belief we will probably soon reach the required number of states to hold a constitutional convention. And that's when we have the real crisis: Congress has long had an effective monopoly on originating amendments, which has allowed them to block any amendment which they don't like, no matter how popular. (Term limits, for instance.) Will they give up this monopoly, and let a convention originate amendments contrary to their interests?

It's my expectation that Congress will respond to a sufficient number of states calling for a convention, first by refusing to hold one, and secondly by attempting to coopt the convention if they can't stop it, by dictating who the delegates will be. Perhaps they'll try something as transparent as declaring themselves to be the ideal delegates, more likely something a little more subtle. But they're not going to just let the states change the Constitution without having a veto over the changes.

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Brett Bellmore
on June 04, 2012 at 14:15:40 pm

"A Body-politic may then be defined to be the organism in unity of the many human beings, associated by jural bond for the objects of the social state in which is vested all rightful political power over its members for the common good of all." ---THE CONSTITUTION OF THE UNITED STATES, A CRITICAL DISCUSSION OF ITS GENESIS, DEVELOPMENT, AND INTERPRETATION. JOHN RANDOLPH TUCKER, Vol. I, Chapter 1, section 4.

This sums up what we refer to, in common, as government. A 'Body-politic' creates the government to carry out what is required to fulfill the 'common good of all.' It's not for some, or most, but for all. This does not indicate equal results, however.

Seems Tucker was from the old Republican Party of Jefferson, the party to which a limited Federal government was desired.

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Eric Hodgdon
on June 04, 2012 at 14:17:53 pm

OK, his grand-father was from the 'original' Republican Party.

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Eric Hodgdon

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