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Sanford Levinson:
The participants in this symposium all join in desiring significant constitutional reform, focusing on the general rubric of “democratizing” what is now almost universally recognized to be an undemocratic political structure established by the Philadelphia Convention in 1787.
As in 1787, when the mission was to supplant the “imbecilic” government established under the Articles of Confederation, the devil is inevitably in the details. In particular, who will write a new constitution, what (broadly) should it say, and what will the ratification rule be?
Jennifer Piscopo’s illuminating essay on Chile is chastening, particularly with regard to the third of these questions, concerning ratification.
The most important decision made in 1787 was simply to ignore Article XIII of the Articles of Confederation, which required unanimous consent of all of the thirteen state legislatures in order to amend the Articles. Instead, ratification would require state conventions—not legislatures—in nine states. Without this change, there would have been no constitution.
She points out that Chile is operating under the requirement that any new constitution receive support in the convention itself from at least two-thirds of the delegates. Adherence to that rule, she suggests, might doom the kind of substantial reform desired by the presumptive majority, but, tellingly, the convention as a whole refused to change the rule. Who knows if this episode in Chilean constitutional reform will turn out, because of this one procedural rule, basically to be “full of sound and fury, signifying nothing” or, perhaps more accurately, far less than was hoped for by the national coalition of leftists seeking truly fundamental change?
Similarly, any serious discussion of constitutional reform in the United States must contend with Article V and the almost insurmountable barriers it places for any group seeking to change the status quo. Ultimately, Americans have to be convinced not only to stop venerating a clearly outmoded and dysfunctional Constitution, but also simply to disregard one of its most fundamental aspects. But many might view this prospect as the political equivalent of President Biden simply declaring that he would sign his transformational legislation on the basis of its passage by the House of Representatives, inasmuch as the Senate is now clearly an illegitimate, because undemocratic, body.
I personally think that is true of the Senate, but I certainly wouldn’t advise the President to make such an argument, at least at this time. To put it mildly, the public has not been prepared for any such claim, which would obviously leave Donald Trump far behind as a constitutional “disrupter.”
Still, it is important to imagine what we might want a new constitution to look like.
Yet Moyn and Doefler seem ambivalent about the idea of having a written constitution at all.
Perhaps what they really oppose is a constitution cluttered up with ostensible protections of controversial substantive issues. There should be no “fundamental law,” they argue—nor, they suggest, should judicial review place limits on what “we the people” should be able to legislate.
They represent a truly important development among younger American leftists, which is, in effect, to return to a New Deal-era critique of judicial power and concomitant support for what used to be called “judicial restraint,” i.e., a willingness of the judiciary, which would still be called upon to interpret statutes passed by legislatures, to accept the constitutionality of any decisions made by legislatures. (Assuming we stick with a presidential system, it is not clear if such deference should extend to presidential decisions.)
Presumably, they would support returning abortion to state and national legislatures for decisions rather than to continue the pretense that what Justice Robert Jackson labeled the “magnificent generalities” of the Fourteenth Amendment contain a solution to be imposed by the judiciary. They are proponents of what is now being called “thin constitutionalism,” in contrast to the greatly thickened variety that was developed, particularly after World War II (and which, ironically or not, contributed to the undue “veneration” that is the subject of Rana’s book).
Still, even they concede that “[i]t might be worth having a new Constitution focused on fair elections of free and equal citizens as a machine for generating majorities.”
Let me suggest, though, that knowing what we know now about the complexities of various elections systems, we would quickly find ourselves tangled up in vigorous and acrimonious controversies about what would actually achieve this worthwhile goal.
Consider only the argument that the “fairest” election process involves some kind of proportional representation in order to overcome the costs inflicted on us by Congress’s decision in 1842, now hard-wired as a consequence of what political scientists call “path dependence,” to require only single-member districts when electing members of the United States House of Representatives. Proportional representation, widely used by other free and democratic countries around the world, generates a very different party system, including attendant difficulties in figuring out exactly what constitutes “majority” opinion. (See, for example, the extended negotiations that will be occurring over the next several months in Germany, in order to determine who the new Chancellor will be, thanks to the fact that Germany now has at least five significant national political parties.)
Or one might even note their casual reference to “free and equal citizens rather than persons. Why, exactly, should it be necessary to be a citizen in order to participate in elections?
The European Union allows citizens of any of its constituent members to vote in the municipal elections of any country in which they might in fact be living, though not in national elections. Many American states allowed non-citizens to vote in the 19th century. There are, perhaps, good reasons to have a less inclusionary suffrage, but the point is that one can have a genuine debate about this, just as, more obviously, one can wonder if convicted felons should lose their vote at all, let alone for a lifetime, as is currently true in at least some states.
The 1787 Constitution punted such issues to the states. That text says literally nothing about who can actually participate in American politics as a voter.
As it happens, four of the 27 amendments to the Constitution (the 15th, 19th, 24th, and 26th) expand the franchise, though many would say not enough. Surely one would want to get rid of the electoral college (assuming we maintain a presidential system). Of course, merely being able to vote can turn out to generate false hopes if legislative districts are gerrymandered to make sure that one’s vote will in fact be irrelevant, not to mention the presence of an institution like the Senate, which violates any plausible notion of “one-person/one-vote” as a truly national ideal.
And one might also want to address whether challengers to the current set of electoral winners will be entitled to vigorously present their critiques—the central concern of the First Amendment—and therefore whether we will want courts—even if called “electoral commissions”—to strike down state or federal legislation that represents the desire by current insiders to protect their power against challengers.
The point is that even a stripped down “thin constitution,” confined basically to setting out basic institutional structures—one house or two, a presidential or a parliamentary system, with what terms of office for how many officials—and the mechanisms by which their members will be chosen will require lots of vigorous debate. And any decisions would undoubtedly require quite a few words to be set down in a written constitution, inasmuch as no one could really leave such decisions to be decided informally. And it is naïve to believe that the words would be so crystal clear as to not require “interpretation” whether by courts or other bodies.
I think that “de-venerating” the Constitution, so to speak, is a necessary start to even more necessary constitutional reforms. But, as suggested by Portnoy’s psychiatrist at the end of Portnoy’s Complaint, that requires recognizing that we are simply at the beginning of the extraordinarily hard work that must be done if the United States is to emerge from its present nightmare.
—October 5, 2021
Aziz Rana:
The rich essays in this symposium invite reflection on the question of whether a focus on “constitutional law” aids or distracts from the project of democratizing society.
I think a clear lesson of the last five years has been the weakness of law in general, and the federal constitution specifically, as a means for protecting the country from the perils of an authoritarian President like Donald Trump.
Throughout Trump’s presidency, there was a continual tendency among many liberals to image that recourse to the fundamental law could intervene decisively to put an end to abuse and authoritarian entrenchment. This tendency was present in everything from the worshipful invocations of the constitution when contesting the Muslim Ban to hopes that the Russia investigation and impeachment would somehow provide an off-ramp from the conditions that produced Trump in the first place.
Whatever one’s views of those specific strategic efforts, it was no doubt the case that some held out an aspirational hope that law could be a silver bullet. And Doerfler and Moyn are absolutely correct that, at the end of the day, no matter the governing text or constitutional system in the United States, only mass “political work” over the long-run can genuinely transform society.
Moreover, to the extent that many Americans reflexively conceive of the U.S. constitution as a bulwark against authoritarianism, Trump’s presidency also challenges that received wisdom. Trump’s rise and attempt to subvert the 2020 election were in many ways facilitated by the federal constitutional order.
The modern Republican Party, not unlike earlier reactionary entities, is deeply shaped by the incentives of the constitutional system. Given the anti-democratic features of this system, the party has a disproportionate capacity to project power without a popular majority. This reality has created a drive among some party leaders to view their power as dependent on disenfranchisement and minority rule. Indeed, for a portion of party elites, actual multiracial democracy is now an almost existential threat.
And it is not that big a leap from systematically suppressing votes to employing actual violence to overthrow elections. Indeed, from Southern secession to white resistance to Reconstruction and then later to desegregation, this has been precisely the defining and authoritarian move in the United States of entrenched white elites contesting democracy. Their mob actions and racist violence were both lawless as well as facilitated by the incentive structures and anti-democratic features of the constitutional order.
But if law in general will not save Americans—and certainly not this constitutional system—that does not mean that either law or the constitutional system should simply be ignored.
Under our present conditions, the courts remain an extraordinarily powerful site for the application of state power. And the design of legal-political institutions produces deeply distorting effects on our politics, fundamentally constraining the capacity of transformative majorities to pursue liberating change.
All of this suggests that even if one wants to create a social order that dramatically de-centers the importance of any constitutional text and its privileged interpreters in the judiciary (in the process, bringing fundamental and ordinary law much closer together, as I agree is necessary), it is vital that movements and activists have a constitutional politics.
They need an account of when and how to use the courts, even if only to hold those in power to the rules they themselves have accepted or to provide communities most marginalized with a reprieve from every day violence. Movements also need an account of which institutional reforms to the constitutional landscape—and through which legal-political pathways (say amendment or legislation)—can actually have revolutionary implications or help to improvise a new social order out of the old.
As I discuss in my book, this is a key reason why members of the Socialist Party in the first third of the twentieth century placed so much emphasis on constitutional reform and how to go about practically implementing those reforms. Their end goal was nothing less than an overcoming of capitalism itself. They sought a society in which mass publics could intervene continuously to ensure that both the economy and politics were infused with popular needs. They had no desire to fetishize some new fundamental law, but Socialists understood that without clear constitutional politics the institutional and cultural changes they imagined would be nearly impossible.
This reorientation around constitutional politics rather than constitutional law suggests a final note for the present in the United States.
One way that some reformers hold on to the existing and very American culture of veneration, while jettisoning veneration for the specific 1787 text, is to privilege the writing of a new document as the quintessential expression of “we the people.”
In this way, calls for a second constitutional convention can at times reproduce a worshipful register vis-à-vis the founders even as it challenges the substance of what they created. As a practical matter, I personally do not believe that a new constitutional convention would be productive in the near-term in the United States, given the current array of political forces and the likely results of such an effort.
This does not mean that in all contexts and at all times I would oppose writing new constitutions wholesale or holding conventions.
But I view the choice as an open political question shaped by how best to achieve actual emancipatory ends, given the structural constraints that may exist within society.
In the United States, the history of constitutional conventions—whether in 1787 or as part of transforming Indigenous land into settler states in the American union—has imprinted on the national psyche a common sense that the activity of constitution-writing is the way of instantiating popular sovereignty. Indeed, this formal devotion to constitution writing has been part of what the U.S. has traditionally promoted abroad as a distinctive element of its global project.
In my view, there are times when mass publics embrace writing new constitutions as genuinely central to their collective struggles for popular sovereignty (Chile and Jennifer Piscopo’s powerful exploration of the possibilities and pitfalls facing that convention is a recent example).
But there are also times when other levers are far better equipped to shift the collective terrain in a democratic direction.
The challenge in the U.S. is a daunting one: how to build a popular majority committed to such transformative shifts and able effectively to wield a variety of means—to employ a constitutional politics—on behalf of democracy.
—October 8, 2021
Aziz Rana is the Richard and Lois Cole Professor of Law at Cornell Law School. He is the author of The Two Faces of American Freedom and of the forthcoming book Rise of the Constitution.
Sanford Levinson is W. St. John Garwood and W. St. John Garwood Jr. Centennial Chair in Law, University of Texas Law School, and Professor of Government, University of Texas at Austin.
