The following essay is a response to pieces by Sanford Levinson, George Van Cleve, David Wilkins, and Citizen US as part of our Symposium on Constitutional Reform.
When the political scientist John Roche described the founders of the 1780s as a “reform caucus” in action, he captured a truth that has proved elusive in the contemporary world. Ever since the constitutional ruminations of Rexford Tugwell in the 1930s, discourses about constitutional reform have always been unrealistic, fanciful, tone-death and, often, just plain silly. Tugwell’s draft of a constitution for the “Newstates of America” bore all the hallmarks of birth from the quiet study of an academic and none of the good sense of an intellect attuned to the rigors of deliberation with public representatives.
What characterized the founders, and what Roche recognized, was that their labors emerged not primarily from their theoretical reflections — though they were gifted in that way — but from their deep involvement in public deliberation from elective and appointed stations. Moreover, their method of proceeding was consistently to defer to civil authorities, rather than to seek to circumvent them. They often found civil authorities the very obstacles to their dreams. Hence the need for tough slogs through ratification campaigns and labors to induce preliminary initiatives towards reform. They never envisioned any pathway to reform that did not advance through established practices, procedures, and institutions.
From the Mt. Vernon conference, to the Annapolis Convention, to the appeals to state assemblies, to the appeal to the Confederation Congress that eventually enabled the Constitutional Convention, the framers plodded through the established institutions and practices to attain the ultimate moment when they could reframe the context of political deliberation by inventing ratification conventions in the states and thus achieving their goal. They removed political obstacles, in other words, only by first co-opting as much as they could reasonably enlist of the established institutions. Then, having matured the opportunity, they side-stepped the interference of interested combinations. Their procedure was entirely one of public deliberation, understood not as general and abstract discourse in the community at large but rather the discourse of public authorities.
A good reason for the very sensible approach can be discerned in the arguments against casual constitutionalism enunciated by James Madison in Federalist No. 49. Madison argued that casual constitutionalism served only to elevate the everyday concerns of politics and partisanship to the level of constitutional crisis and, hence, permanent political instability. He was right. A constitution is not an instrument for enforcing policy choices; it is an instrument for constraining policy choices to pathways the least likely to explode social cohesion. That, at least, is one way to formulate the alternatives that must always confront constitution makers. They confront the same dilemma that confronts the individual choices of rational economic man — namely, short-term versus long term benefits. When the policy choice of today is achieved only at the expense of tomorrow’s capacity for reasonable decision making, it is a fool’s bargain.
Now, only one of the contributions to the present symposium seems fully to recognize these essentially political necessities of constitutional revision. In consequence, that intervention avoids the pitfall of embracing revolution under the guise of constitution making. Revolution is always in order, of course, and subject to no constraint other than force majeure. Thus, the idea of a “constitutional convention” that is nothing more than the assembling of like-minded individuals to assert a degree of political independence sufficient to re-direct the course of society — in other words, revolution — may be embraced.
Legitimate constitution making, by contrast, executes the difficult but beautiful maneuver of transitioning authority by authority and thus leaving no interregnum of illegitimacy. Constitution makers, ideally, are public representatives rather than self-selected theorizers. The example of Benjamin Franklin’s Society for Political Inquiries (1786-1787) is not an exception to this observation. For that forum did not foster proposals for constitutional reform to be submitted to plebiscite determination; rather it proffered advice to public representatives with the goal of informing and fostering public deliberation.
With such principles in mind, let us take up the discussions in turn and measure them against these standards.
The “New Constitution” movement sensibly observes that the original constitutional initiative focused principally upon building a foundation for political unity and avoiding a congeries of detached political interests. It presumably sounds the call for a new constitution — i.e., a new foundation for unity — because it perceives the original foundation as having suffered an erosion of its capacity to foster unity. This gradual loss reflects not so much the incapacity of the original constitution to provide direction for the diverse political units out of which it was formed as a shift from the diversity of political units to a diversity of social formations that do not respond to institutional canalization.
So far, so good. It is certainly comprehensible that the terms of unity may have diverged from those previously existing so strongly as to invalidate prior provisions for unity. That would necessarily imply a need for revision, at minimum, and perhaps replacement, at maximum, of the constitutional arrangement. However, the identification of the need does not specify the fitness of the means. For if we concede that a kind of constitutional sclerosis has afflicted the society, we must ask the still more important question: what is the cure? The answer, “a new constitution,” is an evasion. For what imports most of all is how to effectuate a constitution and not merely the abstract necessity for a constitution.
At this point the “New Constitution” movement has only one response: consensual embrace of the constitutional order, old or new. “We the people” must endorse (approve) the constitutional order as a condition of its legitimacy. Now, while that democratic principle is sound, as far as it goes, it does not extend so far as to prescribe the mode of adopting the constitution. And the confusion of those two concepts leads the “New Constitution” movement into a cul-de-sac of seeking progressive reform through popular endorsement without conceding the obvious reliance upon the principle that anything that is popularly endorsed would thereby be legitimate. In addition, in order to secure this “foundation” commitment, a veil of anonymity (veil of ignorance) must be adopted to enfranchise open public deliberation. Presumably, that would mean that “ordinary people” could adopt or reject constitutional proposals without being subject to the undue influence of notable personalities or institutions.
Now it is necessary to pause and ask a simple question: in what way is a people qualified to evaluate the intricacies of constitutional provisions and their long-term tendencies, when that people is not sufficient to the task of weighing and evaluating the characters and capacities of personalities or institutions?
If that question is answered as it ought to be, one must swiftly proceed to doubting the propriety of this proposal in its entire theoretical bearing. Its implicit claim is that political authority (and hence legitimacy) can be surfaced de novo on the basis of nothing more than a supposed expression of ephemeral public sentiment. Clearly, patterned practices and authorities, however subject to intrinsic deficiencies, constitute a much firmer ground upon which to evaluate the viability of any social consensus. Long-standing, patterned acceptance of ways of deciding collective questions will convey legitimate authority far more surely than a spontaneous convention of self-selected ideologues.
In other words, it makes far greater sense for those who would advocate fundamental political and social change to do so in their own names, to accept responsibility (and therefore accountability to the public) for the positions they take, and, finally, to stake their all on their ability to persuade their fellow citizens. The disposition to hide from view (and responsibility) while seeking to foster change would serve far better as a screen for imposing despotism than as a means for enabling popular power. For popular power is never more important than when it identifies and disciplines those who abuse it.
Some might object that Publius was a pseudonym as well. I considered this issue most carefully and concluded that the pseudonymous writing of the ratification debate—once an official text was before the people—is radically different from what Citizen US is trying to accomplish. The drafters of the Constitution publicly drafted and offered their work. They hid their identities in the Federalist Papers rather as a way of not invoking deference as a standard of decision for the people. Precisely because, in other words, they were known to have done the work, it was appropriate for them to be circumspect when participating in the public deliberation.
We might expect these reflections to bear importantly upon the call for a popular convention (Van Cleve). However, an important distinction must be made — namely, the entire purpose for the popular convention in this context is to supersede calls for a national referendum. If there is a weakness in the proposal, it falls on the side of imagining that a popular convention can be convoked merely by assembling celebrity personalities with no conceded license to speak on behalf of any but themselves. However well-respected these citizens may be, if they are not being appointed through specifically public, collective decision procedures, they cannot be described as legitimately representing anyone but themselves (and their “friends”). This attempt to end-run established public representation is what reveals that the convention proposal is rather sister to than in tension with the national referendum proposal. Where the one hides behind the screen of anonymity, the second (in reality no less anonymous) creates a Potemkin representation in order to claim the mantle of democracy. But it is as clear as the sun in its meridian brightness that the true test of legitimacy is what takes place in the pre-convention decision-making, not what takes place in the convention.
The problem with this convention proposal is not that a convention might run amuck; it is rather that it has no status beyond that of a private association. The proposal is defended in this regard by the observation that its recommendations would be “informal and unauthorized” in the same way as the proposals of the convention of 1787. But that observation obscures the reality that, “informal and unauthorized” as the proposed constitution was, it bore a stamp of publicly appointed delegates actually representing governing institutions in an existing society. In short, it was not merely a private association. If a public body could be limited in its authority to “informal and unauthorized” proposals, how much more limited — if not altogether proscribed — must a private association be?
Notice, in all of this the substantive content of the constitutional proposals is irrelevant. What matters is the title to bring such matter before the public. That title, in turn, can derive only from an established and legitimate presence in public deliberations sufficient to empower those who would make such suggestions to make a claim on the public attention.
Levinson captures this dynamic with pinpoint accuracy when he observes:
What I find so telling about the present moment in our politics — and, therefore, in any discussion of proposed constitutional reforms — is the broadly shared lack of trust and confidence in our national institutions of government.
When, though, he proceeds to derive this marked distrust by pointing to the original constitutional design as aiming to frustrate democratic desires — the famous “deadlock of democracy” argument — he errs through misattribution. It is true that interests experiencing thwarted ambitions experience also frustration. It is not true, though, that the original framers mistrusted democracy per se. They trusted it only too well to ignore the restraints upon government necessary to sustain constitutional fixity.
Constitutional fixity is the missing term in the analyses of all of these papers. They treat the idea of constitutional fixity through silence as though it were an oxymoron. They neglect the obvious reasoning, however, that in the absence of constitutional fixity one must embrace the idea of constitutional mortality. The concept of the living constitution shares with the idea of life itself the defect of mortality. But to apply the idea of mortality to a constitution serves to undermine not the existing arrangement only, but every possible constitutional solution. Indeed, it reduces constitution making itself to the level of a merely slightly more difficult form of policy making. Thus, the real issue at stake in these discussions is the extent to which a constitution is or should be a policy making instrument. More pertinently, if it were not regarded as a policy-making instrument, then exactly what kind of instrument is it?
It is upon such foundations that Levinson, rightly, is skeptical about calls for constitutional reform. He sees the inspiration in these as akin to the reforms that create end-runs around state constitutions in the interest of policy-making (i.e., usually loosening constraints on governments, though sometimes the opposite — Prop. 14 in California, famously). While initiatives and referenda have been used to spawn fundamental constitutional change on occasion, they are more frequently used for purposes of extraordinary legislation.
The implication is that a constitution is not in any ordinary sense legislation. While for purposes of judicial interpretation it is treated as superior “legislation,” it is in fact rather a cabin to legislation to the precise extent that it is a restraint on government. The constitution is always about what a government may not do. That is the reason that it is not fit for purposes of policy-making. It demarcates the policy-making environment (and, thus, like budgets, defines policy possibilities) but does not affirmatively make policy — in the best cases.
But what about the worst cases? Those are the cases that illustrate the problems associated with plebiscite constitution making. They have generally occurred in the states and serve to provide a cautionary tale about what one might expect from the push for constitutional change at this hour.
Focusing on rights only (as Levinson emphasized), all the state constitutions also have bills of rights. In fact, many rights provisions in the US Bill of Rights were borrowed from early state constitutions. Thus, the two sets of bills overlap considerably. However, state bills also contain some novel provisions. For example, the twenty-fifth paragraph of the Georgia State Constitution reads: ‘‘The social status of a citizen shall never be the subject of legislation.’’ One may wonder what that means; does it evoke the kind of questions raised in Minnesota by legislation and its subsequently amended forms that prescribes adoptive placements for children on the basis of racial and ethnic heritage? Is that a question of social status? For Georgia, this is an application of principles inherent in the Bill of Rights, and one finds provisions no less perplexing in other state constitutions.
The Constitution of the State of Illinois says this about ‘‘Individual Dignity’’:
To promote individual dignity, communications that portray criminality, depravity or lack of virtue in, or that incite violence, hatred, abuse or hostility toward, a person or group of persons by reason of or by reference to religious, racial, ethnic, national, or regional affiliation are condemned (Sec. 20).
Do citizens have no right to the expression of such communications in the state of Illinois while having that right in Georgia, Hawaii, or Louisiana? The state of Illinois also, interestingly, provides in the preamble to its constitution and bill of rights the guarantee that the government (or ‘‘We, the people of the State of Illinois,’’ to state it correctly) will ‘‘eliminate poverty and inequality.’’
These are not promises made lightly. Such promises, which are not uncommon in state constitutions, concern what government should provide the people and what the people should provide one another. However, the spare provisions of the first ten amendments to the US Constitution speak far more loudly about what government may not do than of what government and the people promise one another in their continuous efforts to perfect the civil relationship.
Bills of rights in the twentieth century became the most important constitutional provisions. That creates a difficulty: in proportion, as Americans enlarge their expectations of the Bill of Rights, they diminish confidence in the effectiveness of those political arrangements contained in the main body of the Constitution.
That observation returns us to the constitution making dilemma that is our focus. In the Carolene Products case of 1938, the Supreme Court noted that republican institutions were incompetent to the protection of minorities. It was for that reason that the notion of “protected classes” was developed. It has, however, been too infrequently observed that what protected classes are specifically protected from are democratic processes. For, the court avers, democratic processes simply do not work.
How then is a process of democratic constitutional reform expected to overcome the intrinsic incapacities of democracy? In what way does ranked-choice voting, which eliminates the role of the marginal voter in a constituency’s political life, operate to provide the leverage that excluded opinions require to make their presence known without resort to disruption?
When Madison wrote in Federalist No. 63 of “excluding” the people in their “collective capacity” from the operations of the government, he described not the exclusion of their opinions but the exclusion of their operational direction of the government. He argued that this was necessary to capture the “deliberate sense” of the community as opposed to the ephemeral sense of a substantial portion of the community. The argument, in other words, was to establish articulate democratic government rather than merely emotive democratic government.
I find nothing in the nostrums offered in these discussion that rises to the level of defending articulate democratic government. And nothing emphasizes that more strongly than the discussion of “indigenizing” American Indians without taking into account the dilemma of the oscillating choices between citizenship and sovereignty that have stressed native communities ever since the general grant of citizenship in 1924. This discussion also illustrates the difficulty of constitutional reform, inasmuch as the idea of incorporating native nations under the constitution as sovereigns would be incompatible with the fundamental notion of a limited government under the constitution (the author describes them as “distinct” sovereign entities, eliding the usage of the 19th century, “dependent sovereign” entities). For, while such constitutional tinkering might eliminate the false and tendentious claim of plenary authority in Congress over native communities, it does so only at the expense of an equally tendentious imperium in imperio that is incompatible with the design of the limited constitution. For how can a constitution establishing a limited government contain within itself governments that are unlimited?
These ruminations point ineluctably in one direction. The framers of 1787 had to thread a needle the eye of which contemporary constitutional theorizers do not even perceive. They recognized the need to advance the stage of political development in a community in which they acknowledged that they had no title to do so apart from the conceded authority then existing. That is, they conceived of no constitutional change as legitimate that did not arise from existing constitutional and deliberative arrangements. The revolutionary generation operated upon such terms even when resorting to such ad hoc structures as Committees of Correspondence; those committees were “licensed” by state assemblies and correlative institutions.
Perhaps the advocates of constitutional reform will take to heart the degree of sacrifice public service in extraordinary times calls for and will establish themselves clearly and fully in the confidence of the people, sufficient to constitute soon if not now, a genuine reform caucus.
W. B. Allen is Emeritus Dean and Professor of Political Science at Michigan State University. He is author of The Federalist Papers: A Commentary (2nd Ed. 2004) and, more recently, Rethinking Uncle Tom: The Political Thought of Harriet Beecher Stowe (2009).