First things first: Let me commend those who are behind this project to rethink the adequacy of the United States Constitution and to suggest some important reforms. The most important legacy of those who framed the Constitution in 1787 is less their specific handiwork, which they recognized would have inevitable flaws and imperfections—thus the need for future amendment, as set out in Article V—than their true audacity in examining the adequacy of the existing system established by the Articles of Confederation and then deciding that they needed to be replaced. Alexander Hamilton, writing as “Publius” in The Federalist, began the first of what would become eighty-five essays (twenty-nine written by James Madison and five by John Jay) by emphasizing that what was most truly exceptional about the moment was the exercise by Americans of “reflection and choice” as to how they wished to be governed.
We are most faithful to Framers when we engage in our own “reflection and choice” by asking with regard to their own handiwork the kinds of questions they asked regarding the Articles. Many of the delegates in Philadelphia, most notably Benjamin Franklin, were immersed in science; this meant, among other things, that long-believed “truths” could be supplanted by the discovery of new information and creation of new theories to explain (and better) our lives. Hamilton explicitly referred in Federalist 9 to what he described as important new discoveries in the “science of politics” that questioned established verities. The most important of these was the belief, articulated most notably by the French political theorist Montesquieu, that a “republican government” could be established and maintained only in a relatively small and homogeneous polity. What was most audacious, in many ways, about the Federalist argument and the Constitution it was defending was their embrace of the so-called “extended republic,” which required rejection of Montesquieu’s (and other’s) pessimism in favor of the proposition that a large territory with a variegated populace could in fact work to enhance the great goals set out in the Preamble.
The Founders were united in their fundamental belief that “the lessons of experience” should take precedence over what Madison in Federalist 14 called “blind veneration” of past ideas associated with famous “names.” We should, that is, always, be thinking for ourselves. We might take as another guide Abraham Lincoln, who in 1862 told his fellow Americans that “the dogmas of the quiet past, are inadequate to the stormy present.” Our collective task, he said, was to “think anew, and act anew.” This new draft constitution invites us to do exactly that, and I commend its spirit.
Perhaps the most basic question we might ask is what exactly we want constitutions to do. The answers to that question generate not only what we put into constitutions, but also the terms on which we might criticize given constitutions as defective. At least since World War II, most Americans—and perhaps most people around the world as well—have answered the first question by reference to rights. There is a primal image of individuals living outside of government, who decide to form a government in order to protect their rights. Any particular government—and the constitution that is its basis—is then judged on the degree to which it effectively provides such protection.
The ambitious “New Constitution for the United States of America” is very much within this tradition. Following a basically unamended Preamble in which “peace” substitutes for “tranquility” and “descendants” for “posterity,” the reader immediately finds a “Declaration of Rights.” It begins by stating beginning that “All human beings equally possess inherent and inalienable rights to life, liberty, and property.” Securing “the enjoyment of these rights by its citizens” is described as “[t]he most urgent purpose of government.” Indeed, all “human being[s]” within the polity are guaranteed enjoyment of these rights “except as absolutely necessary for securing the equal enjoyment of inherent and inalienable rights by all” (emphasis added). Two things are worth immediate comment. The first is that the initial description of rights reverts to John Locke and away from Thomas Jefferson’s emendation of Locke in the Declaration of Independence. That is, the Declaration memorably speaks of “life, liberty, and the pursuit of happiness.” Jefferson quite deliberately substituted that last of these for the Lockean emphasis on “property” for what might appear to be a relatively simple reason: He accepted the fact that property rights might need to be limited in order to serve the overall interests—or “general welfare”–of the community. That kind of communal orientation is in tension with radical individualism or what has come to be called “libertarianism.”
Any lawyer will immediately be curious as to how one enforces the near absolute protection of these rights, including property. One assumes that it is the judiciary. Although the new draft does not explicitly authorize “judicial review,” it is presumably well-enough entrenched as part of the American constitutional order that judges would believe themselves empowered to invalidate any and all legislation passed by Congress or any other legislative body should they decide that, however efficacious it might be to achieving important public ends, it is in fact not “absolutely necessary.” John Marshall in McCulloch v. Maryland (1819) famously defined the term “necessary and proper” to mean “convenient” or “useful,” which, of course, is quite different from requiring a demonstration of “absolute” necessity. Do the framers of this new draft really wish to overrule Marshall’s latitudinarianism and submission to Congress in favor of creating such a truly remarkably powerful judiciary?
Libertarians are not only devotees of individual rights; they are also suspicious of “democracy” inasmuch as that becomes a process by which majorities feel themselves authorized to limit some of these rights. And, of course, the most bitter disputes, as Madison suggested in Federalist 10 and Hamilton in Federalist 78, come over property and the desire of majorities of have-nots to redistribute some of the resources currently held by haves. There is nothing wrong in being a libertarian or in being suspicious of democracy. But it is important to know what political and theoretical assumptions underlay any given changes in the Constitution. Some of these proposed changes certainly evoke a “democratic” spirit, as in the welcome proposal to replace the ever-more-indefensible electoral college with direct election of the president or, for that matter, empowering Congress to overrule decisions of the Supreme Court. But that would not in itself be enough to assuage the concerns of many people, including myself, that the United States Constitution is far too “undemocratic” to operate as our basic framework of government in the 21st century.
I have already suggested that a primal, and understandable, image of government is as a potential threat to one’s individual rights, with the concomitant concern that mechanisms like a strong judiciary be adopted that might, at least in theory, monitor and constrain and overreaching state. But I believe that to focus on the state only as a threat is to blind us to the reality that we also need an effective government that can respond in a reasonably timely fashion to the various challenges that face us. As Marshall put it in McCulloch, the Constitution is designed to “endure,” and that can happen if and only if the governmental system “ordained” by “We the People” can “adapt” to “the various crises of human affairs,” whether wars, economic depressions, pandemics, or climate change. Others might add to this list potential crises generated by immigration, the federal debt and spending on “entitlement programs,” and so on. 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. The “approval ratings” of Congress have been dismal now for many years, and a hefty majority of the country believe the country is going “in the wrong direction.” These cannot easily be translated into standard “right” v.
“left” or “liberal” v. “conservative” divisions. What seemingly unites most Americans is that they no longer have confidence that the national government will respond effectively to help meet the challenges of whatever happens to be at the top of one’s own concerns.
Let me suggest, though, that this turn toward profound disillusionment and even alienation from national political institutions has almost nothing to do with the degree of formal rights protections that can be found in the Constitution, or even the (un)willingness of the Supreme Court adequately to enforce one’s favorite set of rights. Instead, I believe that it flows from the realization that the 1787 Constitution, written by people who fundamentally mistrusted “democracy,” was designed to make it quite difficult for government actually to work. “Checking and balancing” turns out to be synonymous, much of the time, for “nothing actually changes.” Even events that seem to most people like a genuine “crisis in human affairs,” such as the current pandemic, seem unable to generate a truly adequate response by a bitterly divided, hyper-polarized Congress. And one can’t even be certain that a bill passed by both houses would necessarily be signed by the president, given that the presidential veto means, operationally, that in important respects we have a tricameral legislative system, as if the problems posed by bicameralism, including the indefensibly organized Senate, are not bad enough.
It should not be surprising, therefore, to learn that my admiration for this proposed redesigned constitution is very mixed. It exhibits an admirable skepticism about the electoral college, but otherwise it displays very limited interest in addressing other problems generated by thoughtless adherence to the structures of 1787. I should emphasize that one does not necessarily have to condemn the Framers for the choices they made then. They were doing the best they could, in terms both of responding to the political exigencies of the moment, such as the felt necessity to compromise with slaveowners, and of drawing on the most plausible “lessons of experience” provided by adherents of the new “sciences of politics” invoked by Hamilton. It is we who should be condemned for not asking what may be uncomfortable questions about the consequences of adhering to our “traditional” ways even as most of the country believes we are in effect careening down a winding road without sufficient guardrails to prevent our going over a cliff.
Return to the possibility that the strong, perhaps even exaggerated, emphasis on protecting individual rights will necessitate an even stronger judiciary that we have at present. Should we then address the processes by which judges are appointed and how long they remain in office, for starters? Although more people “approve” of the Supreme Court than they do of Congress or the president, that may well be only because the Court benefits from its competition. One increasingly reads stories, across the political spectrum, of a looming “legitimacy crisis” on the part of the Supreme Court. Should we be concerned about such a possibility, and is it possible that a revised constitution should try to mitigate its occurring?
One can ask similar questions about many other structural details that are left unchanged in this draft. Why, for example, does it retain the full measure of presidential veto power that means, empirically, that presidents “win” roughly 95% of all veto contests because of the difficulty of finding two-thirds votes in both the House and Senate to override a veto. To be sure, one might regard a president elected by a majority vote, instead of by the electoral college, as having more legitimacy, perhaps even more of a “mandate,” to govern. However, any political scientist could easily explain why Congress is more likely, overall, to be an accurate guide to public opinion—and perhaps even sound public policy—than a single president, or even the modern presidency, which inevitably becomes ensconced in a peculiar cocoon of its own (not to mention the fact that the first term is often spent preparing to run for the second term). And we might even take seriously the warning of the great German political sociologist, Max Weber, a century ago, that all presidential systems, in the age of mass parties and mass communications, fed tendencies toward a Caesarist form of politics, where “charisma” and mass rallies would take the place of thoughtful deliberation.
Several foreign countries and, more important, perhaps, many American states allow the populace to engage in “end runs” around a sclerotic legislative process by allowing initiatives and referenda. This has led to significant reforms in many of the states. Nebraska, for example, voted to abolish its state Senate in 1934 through the referendum process. Ranked choice voting has been adopted in Maine and is currently on the ballot in Massachusetts. Arizona voters chose to give a bi-partisan “citizen’s commission” the power to redraw state legislative districts instead of relying on demonstrably hyper-partisan legislators to do so. One may or may not agree with all of these decisions, but there can be no doubt that state electorates are allowed to feel empowered in a way that the national electorate, by design, is not. For James Madison, writing in Federalist 63, this exclusion of “we the people” from any actual role in our own governance beyond picking “representatives” was a defining feature of the new Constitution. I think we should consider whether it may instead be a defining “bug,” subject itself to “reflection and choice” as we consider the possibility of amending the Constitution.
Sanford V. Levinson is Professor of Government and W. St. John Garwood and W. St. John Garwood Jr. Centennial Chair in Law at the University of Texas Law School. He is author of numerous works on constitutional design and reform, including Framed: America’s 51 Constitutions and the Crisis of Governance (Oxford University Press, 2012).
