Originalists can and do support Brown v. Board, and it's important to understand why.
It is a pleasure to comment on Sandy Levinson’s Jeffersonian Proposal for the Constitution (as well as on Richard Epstein’s brief comment on it). I find myself somewhere in the middle in this debate. I agree with Sandy that our Constitution should be revised, but I agree with Richard that many of the changes Sandy wants to make would not be good ideas and that an unlimited convention would be a bad idea. Rather than convening a convention that would replace or radically revise our constitution, I prefer to use the amendment power.
I am an originalist and so I favor significant use of the amendment process. Does that sound paradoxical? Not at all. If one wants the Constitution’s original meaning followed, then necessary constitutional change must come from somewhere else than the courts. The best place is the supermajoritarian amendment process, which has many virtues.
Therefore, I agree with Sandy that we should be assessing the wisdom of our Constitution. My assessment, however, differs significantly from Sandy’s on many issues. But not all of them. So I agree with him that we should introduce 18 year (or 13.5 year) term limits for Supreme Court justices. I also agree that the Constitution might include some elements of direct democracy, as I have proposed that certain constitutional amendments should be ratified by a vote of the people of each state. And I agree that we should further limit (through supermajority rule) the power of lame duck Congresses – a power shamefully exercised most recently by Democrats in December 2010, but also by Republicans in their December 1998 impeachment of President Clinton. And let’s not forget that CERCLA, one of the worst statutes ever passed in my book, was enacted by a lame duck Congress in 1980.
But I disagree with Sandy on other matters. Sandy objects to the fixed four year terms for Presidents. While that has some bad features – I would have liked to fire President Obama in 2010, if it were possible – there are strong arguments for allowing a President enough time to accomplish some objectives without having to worry about being turned out of office prematurely. (I also disagree with him about California, but that would take us too far afield.)
One of my strongest disagreements involves Article V. Unlike Sandy, I don’t believe that the Constitution’s amendment provision is necessarily too strict. It is strict, but that strictness produces significant benefits. Sandy states that “the U.S. Constitution [is] the most difficult to amend constitution in the entire world.” Let me say that this is by no means clear. In conversation, Sandy has told me that he bases this claim on Donald Lutz’s article on the subject. But there are real problems with Lutz’s results. First, his methodology for comparing constitutions is problematic, as it relies to a significant degree on his own judgments, rather than precise measures. Lutz also neglects important matters. For example, he ignores that some constitutions, such as those of Germany and Portugal (and India by judicial decision), do not allow amendments at all of a significant number of important provisions. Even ignoring these problems, he determines that the United States is in the same ballpark as two other federal republics – Switzerland and Australia – in terms of difficulty of amendment. I agree with Sandy that it would be good to know about the relative difficulty of the amendment provisions of the constitutions of the world, but I don’t think we have clear answers to that question now.
But even if turned out that the United States Constitution was the most difficult to amend, that wouldn’t mean it was too strict. 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.
But my main point of disagreement with Sandy is where he wants to take the Constitution. Unless I misunderstand his politics, he would take us to a constitutional regime that would move us closer to the social welfare states of Europe. That’s not the direction we should be moving in. Rather, I would favor additional checks on the federal government (and the states), such as restrictions on federal spending, debt, and regulation. Some of these restrictions don’t pass, not because they are unpopular, but because Congress has an effective veto on the constitutional amendment process. For another constitutional amendment I support that would fix this problem, see here.
If I understand him correctly, Sandy wants radical revisions in the Constitution through an unlimited convention. I oppose that, since I think the Constitution is a good document and don’t want to risk losing its good features. Nor do I want to lose the attachment that comes when a nation has enjoyed the benefits of a constitution for more than two centuries. But I also oppose an unlimited convention because of the tremendous uncertainty that such a convention would bring. Such a convention could easily result in a worse constitution, especially since I suspect that Sandy believes that a convention could depart from the ratification method in the existing Constitution.
Let me end by warning Sandy to be careful what you wish for. You might like what results from such a convention. But you might not.