Constitutional Stupidities, Constitutional Tragedies

William N. Eskridge, Sanford V. Levinson

• Publisher: NYU Press
• Year: 1998
• ISBN:
  9780814722565
• Topic: Politik & Internationale Beziehungen
• Subtopic: Verfassungen

The Constitution is the cornerstone of American government, hailed as one of the greatest contributions of the Western Enlightenment. While many seem content simply to celebrate it, those most familiar with the document invariably find it wanting in at least some aspects.

This unique volume brings together many of the country's most esteemed constitutional commentators and invites them to answer two questions: First, what is the stupidest provision of the Constitution? "Stupid" need not mean evil. Thus, a second, related question is whether the scholar-interpreter would be forced to reach truly evil results even if applying his or her own favored theory of constitutional interpretation.

The contributors include Lawrence Alexander, Akhil Reed Amar, Jack Balkin, Philip Bobbitt, Gerard Bradley, Rebecca Brown, Steven Calabresi, Lief Carter, Christopher Eisgruber, Lawrence Sager, Marie Failinger, Daniel Farber, James Fleming, Mark Graber, Stephen Griffin, Gary Jacobsohn, Randall Kennedy, Lewis LaRue, Theodore Lowi, Earl Maltz, Michael McConnell, Matthew Michael, Robert Nagel, Daniel Ortiz, Pamela Karlen, Michael Paulsen, Robert Post, Lucas Powe, Dorothy Roberts, Jeffrey Rosen, Frederick Schauer, Michael Seidman, Suzanna Sherry, David Strauss, Laurence Tribe, Mark Tushnet, and John Yoo.

CHAPTER 1
A Constitutional Accident Waiting to Happen

Akhil Reed Amor

In the category “Most Mistaken Part of the Current Constitution,” I nominate the Electoral College. The ingenious scheme of presidential selection set up by Article II and refined by the Twelfth Amendment was a brilliant eighteenth-century invention that makes no sense today. Our system of selecting presidents is a constitutional accident waiting to happen.

I nominate the Electoral College in part because some constitutional scholars might tend to overlook its flaws. Constitutional Law courses typically stress courts, cases, and clauses that get litigated. Despite the vast constitutional significance of the presidency, it is woefully understudied in law schools today. (It gets far more attention in political science departments— a vestige of the early-twentieth-century world in which academic study of the Constitution was generally nestled in political science—while law schools stressed “private law,” like contracts and torts.) Scholars of constitutional law may likewise prefer to focus on clauses that can be “fixed” by creative judicial interpretation. The Electoral College can be fixed only by a formal amendment, and talk of constitutional amendment scares many law professors.

But amendment is exactly what is called for here; the reasons that made the Electoral College sensible in the eighteenth century no longer apply. The Framers emphatically did not want a president dependent on the legislature, so they rejected a parliamentary model in which the legislature would pick its own leader as prime minister and chief executive officer. How, then, to pick the president? The visionary James Wilson proposed direct national popular election, but the scheme was deemed unworkable for three reasons. First, very few candidates would have truly continental reputations among ordinary citizens, so ordinary folk across the vast continent would not have enough good information to choose intelligently among national figures. Second, a populist presidency was seen as dangerous, inviting demagoguery and possibly dictatorship as one man claimed to embody the “Voice of the American People.” Third, national election would upset a careful balance of power among states. Since the South did not let blacks vote, southern voices would count less in a direct national election. Or a state could increase its clout by recklessly extending its franchise. For example, if (heaven forbid!) a state let women vote, it could double its weight in a direct national election. Under the Electoral College system, by contrast, a state could get a fixed number of electoral votes whether its franchise was broad or narrow—indeed, whether or not it let ordinary voters pick electors.

None of these arguments works today. Improvements in communications technology and the rise of political parties make possible direct election and a populist presidency. This is, de facto, our scheme today. Blacks and women are no longer selectively disenfranchised, and states no longer play key roles in defining the electorate or in deciding whether to give the voters a direct voice in choosing electors. Direct national election would encourage states to encourage voters to vote on Election Day, but today this hardly seems a strong reason to oppose direct election.

Ingenious, indirect, sophisticated arguments made on behalf of the Electoral College by clever theorists these days are legion, but almost all are makeweight. If the scheme is so good, why does not any U.S. state or any foreign nation copy it? A low-plurality winner in a three- or four-way race is possible even with the Electoral College. Yet such a circumstance could be avoided in a direct national election by single transferable voting (with voters listing their second and third choices on the ballot, in effect combining the “first heat” and “runoff” elections into a single transaction).

The only two real arguments against abolition of the Electoral College are found in federalism and inertia. Only federalism can explain why we should use an electoral college to pick presidents but not governors. But it is hard to see what the federalism argument is today. The specter of the national government administering a national election, I confess, does not give me the cold sweats. A razor-thin popular vote margin might occasion a national recount, but states now manage recounts all the time, and new technology will make counting and recounting much easier in the future. (And today, a razor-thin Electoral College margin may require recounts in a number of closely contested states even if there is a clear national popular winner.)

Inertial, Burkean arguments take two forms. First, the argument goes, a change in presidential selection rules would radically change the game in ways hard to foresee. Candidates would not care about winning states, only votes, and campaign strategies might change dramatically and for the worse. But it is hard to see why: given that the Electoral College leader has also historically tended to be the popular vote leader, the strategy for winning should not change dramatically if we switch from one measure to the other. This sets up the second inertial point. The dreaded specter of a clear popular loser becoming the Electoral College winner has not happened in this century: Why worry? But that is what someone might say after three trigger pulls in Russian roulette. One day, we will end up with a clear “loser President”—clear beyond any quibbles about uncertain ballots. And the question is, will this loser/winner be seen as legitimate at home and abroad? If our modern national democratic ethos, when focused on the thing, would balk at a byzantine system that defies the people’s choice on election day, true Burkean theory would seem to argue against the Electoral College. If We the People would amend the Constitution after the loser president materializes—and I predict we would—why are we now just waiting for the inevitable accident to happen?

CHAPTER 2
Parlor Games

Philip Bobbitt

The Constitution is not perfect. Indeed, I do not know what “perfection” is in a constitution, which is an instrument for human hands and thus must bear within its possibilities all the potential for misuse that comes with the user. What I am sure of is that “perfect” does not mean “never needing to be amended,” since one important part of the Constitution is its provision for amendment (although I am inclined to believe that few of the amendments to the Constitution were actually necessary).

That said, a competition to find the “stupidest provision of the Constitution” is, to my mind, about the most vapid contest to come along since MTV listeners were asked to suggest names for a litter of puppies owned by a heavy-metal performer. As anyone who has been around dogs knows, their names have to do with their individual natures and the relationships they have with each other and with their masters. Naming them in the abstract is idle, a parlor game.

Designer constitutionalism is a similar pastime. Like political science generally, it is interesting only to the extent that design can be isolated from the many overlapping functions of any political instrument. Political scientists are aware of this, of course. The use of a conceptual strategy, like imagining an alternative constitutional system, for example, is not necessarily marred by the avoidance of the real-world complexity of moral decisions (anymore than is the political philosopher’s use of the Kantian veil of ignorance). Rather, these strategies recognize that moral decisions are so very complicated that only by isolating some feature of the political structure in strict laboratory conditions can we arrive at a general thesis. But to the extent that a constitutional question is isolatable, it is a little absurd.

The Constitution functions as an organic whole. All the forms of argument—historical, textual, structural, ethical, prudential, doctrinal—depend entirely on this principle. One cannot begin to construe correctly the “commander-in-chief power” without bearing in mind the Congress’s power to appropriate money for the armed forces. Nor can one adequately construe, in any concrete case, the Congress’s power to declare war without squaring it with the executive’s power to deploy troops where he, and he alone, thinks best. Remove one part of the Constitution and you change another. In a mature democracy, these relationships are sufficiently complicated and well developed that any particular change is likely to have a number of unanticipated consequences, including, often enough, a result conflicting with the campaign by which the change in the Constitution was secured in the first place.

Suppose one of the contributors to this symposium should propose the provision of a senate as the worst provision. The question “Should we have a senate?” was once put to me as a “constitutional question” by my friend Sandy Levinson, one of the editors of this collection of papers. Behind a veil of ignorance, unknowing as to what person one might become or what position in society he or she might have (and therefore unprejudiced to favor any particular group or station), one might well argue that popular majori-tarianism is so manifestly an equitable principle that any departure from it is a mistake. Or, similarly, behind this veil one might also argue that the protection of minority points of view can justify such a departure, the likelihood of being a part of some political minority being high in a pluralistic society. Then, I suppose, the focus shifts to empirical evidence, if such is really possible in these matters, to establish whether or not the Senate is in fact protective of the particular minorities with whom the questioner has sympathy.

But in the law we do not live behind such a veil, and to pretend otherwise in order to get clarity and consistency in our principles is to ignore the actual responsibilities we do have. “Should we have a senate?” is a question like then-Governor Reagan’s question, “Are you better off now than you were four years ago?”, which was used to such powerful effect against President Carter. Of course, this was an irrelevant rhetorical thrust: the question ought to have been “Are you better off now than you would have been if Gerald Ford had been elected?” since neither President Carter nor anyone else can hold time still. Their achievements must be measured against what would otherwise have been but is not, not against what can never be—the suspension of time. The real question for law therefore, because law—unlike political science—does not live without air and the environment of reality, is, Would we or would the Constitution be better off if, for the last two hundred years, we had had no senate? The short answer has to be that “we”—the constitutional We that came into being in 1789—would not be at all better or worse off, since the price of the adoption of the Constitution was the inclusion of the Senate. Indeed, its enshrinement in the Constitution is the only unamendable part of the document.

There are, of course, artlessly drafted provisions—the Twenty-Fifth Amendment, for example, that enabled a discredited President Nixon to name his successor—and there are provisions that, no matter how carefully drafted, have been so construed as to render them useless, such as the Privileges or Immunities Clause of the Fourteenth Amendment. But that does not make them (nor their hopeful ratifiers) stupid, and it certainly does not show that we would have been better off had they not been adopted.

Rather, the reformer must show, not only that it is possible to imagine a world without the egregious provision in which things are better than they are at present, but also that it is possible to actualize such a world in which the system of constitutional interpretation we use remains legitimate. Because that system has made use of the Constitution as a whole, it is not easy to simply begin removing parts that appear inconsequential or offensive without risking the delegitimation of the system of interpretation itself. Some amendments—women’s suffrage, for example—fit easily within the whole, because they are consistent with its premises as defined in the Declaration of Independence. For such purposes, Article V exists. Does that mean that a particularly stupid provision was replaced? Or does it mean that the provision for change in the Constitution worked precisely as it should?

When I read that new democracies are being advised by Americans on constitutional questions such as the size of their parliaments, bicameral versus unicameral bodies, presidential versus parliamentary rule, the optimum number of political parties, the criteria for admitting particular parties to participation, the threshold showing by a party to achieve parliamentary participation, the relative strength of the branches, and so forth, I wince. The answers to these allegedly “technical” questions will provide the structure that will guarantee the rights of the people so newly freed. Because these questions do not have any “right” answers in the abstract, they do not have stupid answers either. The correctness of the answers that are chosen will depend upon the adherence on which they are able to rely—which is entirely a matter of the cultural history and idiosyncrasies of the particular country—and on the willingness of citizens to use these structural answers for worthy goals.

The stupidest provisions of a successful constitution like ours are those that, thankfully, have not been adopted—whether their supporters portray the Constitution as an unworkable anachronism or the institutions set up by the Constitution as dysfunctional.

The American constitutional enterprise does not require, I think, constant correction, as if it were a Popperian scheme of ever-improvement, nor profit from the supercilious condescension of those of us who rank its provisions according to escalating stupidity, culminating in the “stupidest.” Rather the success of this highly successful enterprise depends upon making only those changes that reinforce its legitimacy in the eyes of our people, which is very seldom a matter, I think, of bringing it in line with the political formulae of theorists. The Constitution needs faith and, if the word is not inappropriate, reverence, as well as modesty before the grave tasks the Constitution sets for us.

CHAPTER 3
An Agenda for Constitutional Reform

Steven G. Calabresi

The U.S. Constitution is, in my judgment, the best constitution human beings have ever devised. Its structural hallmarks of federalism and separated powers work brilliantly to protect liberty from both public and private violence. Government action is hard to obtain (to the dismay of many rent seekers), but where a broad public consensus exists, national law making readily occurs.¹ Individual rights are well secured by the Bill of Rights, the post-Civil War amendments, and an assortment of other clauses, yet most vital public welfare measures usually get upheld. Lastly, the amendment process is tough and hard to navigate, as it should be, but not so much so as to prevent the adoption of such vital alterations of the original design as were accomplished by the Thirteenth, Fourteenth, Fifteenth, Nineteenth, and Twenty-Second Amendments.

In short, the Federalist Constitution has proved to be a brilliant success, which unitary nation states and parliamentary democracies all over the world would do well to copy. I give it most of the credit for the fact that ours is the wealthiest, most technologically advanced, and most socially just society in human history, not to mention the fact that we have with ease become a military superpower that has successfully defended most of the rest of the world from vicious totalitarian despots without in the process being corrupted ourselves. The rest of the world is quite rightly impressed with us, and it is thus no accident that the United States of America has become the biggest single exporter of public law in the history of humankind. Almost wherever one looks, written constitutions, federalism, separation of powers, bills of rights, and judicial review are on the ascendancy all over the world right now—and for a good reason.² They work better than any of the alternatives that have been tried.

All of that being said, however, the amended U.S. Constitution is not a perfect document. While I will cheerfully defend it from all enemies foreign and domestic, and while I would even go so far as to form a latter-day Federalist movement to sing its praises, I am confident that the Constitution could still be improved. The overarching “mistake”³ in the amended document as it has been handed on to us after two hundred years is that the famous Madisonian system of checks and balances does not go far enough. Indeed, I would argue that each of the three branches of the federal government has been left insufficiently checked in its exercise of certain core powers. The reason for this is that the Framers wrongly assumed that each of the three branches would devote a great deal of energy to checking abuses by the other two. While this has largely proved to be true, there are some key situations in which each of the three branches is able to act unilaterally in self-interested ways and neither of the other two branches has much incentive to intervene. The point is best illustrated by discussing it in the context of each branch and by suggesting a quick amendment or two that would fix the problem.

Congress

Congressional self-dealing poses the biggest challenge because, contrary to the opinion of many of my colleagues in academia, Congress is by far the most powerful branch of our national government.⁴ Congress’s power comes from its ability to control the purse strings, pass laws, and conduct oversight hearings and investigations. In the wake of the adoption of the Sixteenth Amendment and of the New Deal revolution in the understanding of the scope of Congress’s enumerated powers, senators and representatives have gained unprecedented control over a vast portion of the wealth and income generated by this incredibly wealthy and productive land. They have used this power extravagantly, spending much too much money and passing too many burdensome laws. All too often, the laws and appropriations seem directly designed to further the reelection bids of the sponsors and cosponsors of the ill-designed measures that are being promoted. The net result is that Americans are burdened with an unnecessarily big and wasteful federal government.

This has happened because, sadly, the growth of congressional power over our gross national product has not been met with any growth in the checks on congressional overreaching. To the contrary, constitutional impediments like enumerated powers have been swept away at the same time as important opposing institutions, like the state governments, have been weakened, both through the adoption of the Seventeenth Amendment and, more importantly, by the increase in the number of states from thirteen to fifty.⁵ (It is obviously harder for fifty states to organize against national usurpations of power than it would be for thirteen to do so.)

The solution to this problem is to create new checks on our overly big national government by limiting Congress’s raw power to overtax, overspend, and overregulate. Various proposals have been introduced or talked about in recent years that would impose precisely these kinds of limits, including proposals for a Balanced Budget Amendment, a Spending Limitation Amendment, an amendment requiring a...