Thursday, September 17, 2009

What's Wrong with the U.S. Constitution?

I want to follow up on Anna's post on Constitution Day. Today I attended, with Anna, the event organized by Harvard to celebrate the signing of the Constitution in Philadelphia in 1787. Former Justice Souter spoke with Harvard Law's Noah Feldman, but the first half of the program was devoted to a discussion about what is worthy of celebrating about the constitution and what isn't. The panelists, Professors Charles Fried, Mark Tushnet, Michael Klarman, Alexander Keyssar, and Sanford Levinson, discussed various vices and virtues of the constitutional design, and I cannot repeat all of that here. However, I thought it might be interesting to have a discussion on what you perceive to be the biggest problem (or problems) with the U.S. Constitution.
Many, I suspect, would focus their critique on the later constitution, i.e. the Bill of Rights. They might object to the (over or under, depending on your view) breadth of the protection given to speech, or the insufficient protection of equality, or property, or perhaps that the U.S. still exercises the death penalty. While these are all valid concerns, they largely miss the point. I tend to agree with Jeremy Waldron when he says that people can take rights seriously and still have reasonable disagreements with respect to the meaning of those rights. Similarly, the problems that commentators tend to identify with the Bill of Rights are not necessarily that their favorite rights are not included, but that the interpretation given to them (most often by the Supreme Court) does not adhere to their prefered conception of these rights. These concerns might be important, but I don't think that they go to the heart of what's wrong with the Constitution. In other words, these rights conceptions might very well change over time (indeed they have) with little or no relation to the constitutional text itself. For me, the problematic aspects of the Constitution must have something to do with its institutional aspects, those that are "hard wired" into the constitutional design.

There are, of course, many problems, but my number one contender would have to be Article V, the amendment clause. To amend the constitution, a proposal must garner a two thirds majority in both houses of Congress, and then receive approval of three quarters of the states (amendments can also pass through conventions, but that's even rarer). We know that Thomas Jefferson wanted a constitutional convention every 20 years, but, alas, he was in Paris at the time, so Madison's version won. The bottom line is that, today, a constitutional amendment is practically impossible. It is so easy to put sticks in the wheels of proposed amendments that it is hardly worth putting in the effort to pass it. Still, there have been many attempts, but out of 900 such attempts only 27 have passed, and the vast majority a long time ago.

This has several implications. First, the Constitution as a text is becoming less and less relevant, and what we see today are more and more, in the words of Mark Tushnet, "constitutional workarounds".

Second, although constitutional meaning does change over the years, we need to think about the institutions that are responsible for that changed meaning. If the tool of constitutional amendment is how the legislative branch expresses constitutional meaning, and that tool is for all practical purposes unavailable, this means that other branches and institutions (courts, the Executive, administrative agencies, etc.) get to have more input into those changed meanings. This could be a good or bad thing, depending on your view of these institutions and their democratic pedigree.

Third, constitutional amendments can potentially be used to respond to judicial interpretations that don't cohere with the polity's constitutional understanding. But in a world where the Constitution is practically unamendable, the legislature lacks that option.

Fourth, paradoxically, when the Constitution can't be amended it assumes a position of sacred text; that which must not be tampered with. The attitude that might develop, then, is not a disinterest, but a reverence. If the Constitution has remained pretty much intact for more than 200 years, surely it is right and good, such reasoning goes. Attempts to change it might even be perceived as illegitimate, violative of that sacred text. This has costs as well. As Allan Bloom once wrote, in a different context altogether though, "the most successful tyranny is not the one that uses force to assure uniformity but the one that removes the awareness of other possibilities, that makes it seem inconceivable that other ways are viable, that removes the sense that there is an outside".

Sometimes I wonder whether the reverential attitude does remove our awareness of constitutional possibilities. Perhaps, and this is just speculation now, we might be able to articulate new constitutional alternatives if we also thought they were politically feasible.

What do you think? What's your contender for the worst constitutional provision?


  1. Couldn't one argue though that the institutional design of the Constitution is, in fact, also likely to change over time through interpretation, just like the Bill of Rights. I am thinking of two examples that Michael Klarman pointed out in his discourse: the emergence of the administrative state and the powers of the federal government. As Klarman put it, the Federal government can today do almost anything. An additional issue might be the Federal Reserve which acts de facto like a central bank. The structural features of the Constitution, then, change in the face of political, economic, and technological pressures.

    Having said that, I agree that it would be better to enact such changes by way of constitutional amendment, which is indeed nearly impossible in the US.

  2. Adam, I think you proved your point: we are unable to think about proposals for constitutional change :). But seriously, I with you that the main problem is Article V. In addition to that, I think that Sanford Levinson is right in arguing that the constitution contains a set of structural provisions that are arguably inconsistent with a serious commitment to democracy and that should be changed (e.g. the electoral college). However, in addition to identifying bad constitutional rules, one could think about provisions that should be added to the constitutional text. I am mainly thinking about a list of social and economic rights.

    I agree with Toni that the constitution can be changed through interpretation. But it seems to me there are at least two problems with that view. The first one, also identified by Levinson, is that that strategy does not work if what one wants to do is to change structural provisions as the one identified above (it would very hard to imagine a court altering the constitutional rules for the election of the President or changing the ways seats are apportioned in the Senate).

    But even if one could make any kind of change through interpretation, I think that the main difficulty of thinking about interpretation as a good substitute for formal constitutional change is that it leaves most of the work in the hands of judges. That is, constitutional change through interpretation does not seem to be consistent with basic democratic principles, at least when compared to constitutional change that occurs through more direct popular engagement.

  3. I'm not a big fan of the senate these days. Some of that has to do with the filibuster (which I've never liked, but of course that's not in the constitution) but also with the disproportionate say it gives to the smaller states. Of course, it was probably necessary at the time to get the smaller states to sign on and now it would be nearly impossible to change (as you point out, amending the constitution ain't easy), but I think it's ridiculous that a representative of around half a million people can have the same say as a representative of over 30 million.

    There's also the interesting suit filed recently over the disproportionate numbers of citizens represented by different members of the House of Representatives. Add those together (along with other constitutional and other factors), and the U.S. system has way too many ways that the minority can thwart the majority. Of course, constitutions ought to be designed to protect minorities from majority tyranny, but I think the U.S. Constitution tips this balance too far--at least toward geographical minorities, if not racial or religious ones.

  4. Joshua - good point. I definitely agree with you that equal representation in the Senate is problematic and not in line with republican principles or the one person one vote principle.

    I would like to point out that the situation on this point is even more complicated, because Article V expressly says that no state shall be deprived of its equal suffrage in the Senate, which basically means that without the agreement of the state (and really, what state would ever agree to this?), the power balance will not change, and cannot be changed through the amendment procedure specified in Article V.


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