Time for constitutional change

I’ve been teaching constitutional law and other law-related courses historically for a while now, thanks to Mark Graber, Howard Gillman, and Keith Whittington. In addition to shaking up the usual “we’re doing judicial review today, so we’ll talk about Marbury v. Madison from 1803 and Cooper v. Aaron from 1958,” teaching these courses historically helps students to think about constitutional periods with themes. It also almost requires us to think about constitutional development as something not done only by courts and judges.

Sandy Levinson has argued powerfully that our constitution as it stands now is either broken or close to it. While some Democratic partisans might be more inclined to agree with him by claiming that Trump presidency has broken it, I lean toward the idea that the Trump presidency has revealed some deep cracks in its structure. We have a Congress that looks increasingly incapable of doing the fundamental legislative work of governance. Our courts have become overtly partisan battlegrounds. The last two Justices seated were appointed by a President who lost the popular vote and confirmed by Senators representing less than a majority of American voters. And the presidency itself is held by an erratic individual who cannot stop attacking core American values and institutions because of the reinforcement he receives from his core supporters.

Democrats hope for a blue wave election in 2018, followed by a second wave in 2020, washing their Republican rivals out of office and into the flotsam of history. As tantalizing as this idea may be, my reading of constitutional history suggests that it will not be enough to solve our constitutional problems, and it may not even solve our political ones.

The New Deal/Great Society order ended with Reagan’s presidency or perhaps a bit after, but no clear constitutional order rose to replace it. The next ten years are critical and require a rethinking of constitutional governance. As a nation, we need to enter a period of high constitutional politics – a place we’ve been before.

Most high school students learn about the Bill of Rights and the Reconstruction Amendments, but don’t think about the Progressive Era as an era of constitutional politics. They learn that the next major changes in the constitution were the New Deal shifts engineered by a unified presidency, Congress, and Supreme Court. To the extent that Progressive Era constitutional change is discussed at all, the amendments are discussed piecemeal, more as individual fixes to particular problems rather than the expression of a new vision of the constitution. This is a mistake.

Progressives made changes to the constitution to instantiate their vision of a constitutional order in which the national state would work more cooperatively with individual state governments to manage national agendas. The Article V amendment process, ordinarily so difficult to navigate, opened up and allowed four – nearly five – changes to be made. At the end of the day, while the Progressives did not get everything they wanted, as comprehensive labor legislation would have to wait for the New Deal, they did achieve significant reform of federalism through amendment, legislation, and executive action. These reforms allowed the development of a more robust administrative state. They also legitimated at the national level racial hierarchies and sharp distinctions among desirable and undesirable new American residents and citizens. A more engaged citizenry required better citizens but also required a means of closing out undesirables (blacks in the south and Asians in the west) from engagement in the work of politics and governance.

This agenda crossed party lines, achieving success because it mobilized support from the majority of politically empowered people. Constitutional change constituted an end run around politics as usual, and proved to be quite effective.

The time is ripe again. Retired Supreme Court Justice John Paul Stevens came up with a good list to consider in 2014. Sandy Levinson has a slightly different list. My list includes some of their suggestions and a few of my own. I’d welcome more ideas, particularly those that might help to make Congress a more effective and functional legislative body.

Repeal the Second Amendment

Most Americans are in favor of common-sense gun control, allowing Congress and the states to limit access to weapons of war and to restrict certain classes of individuals (i.e., persons convicted of crimes) from gun ownership without special justification.

Allow campaign finance regulation

The flood of cash that has overwhelmed our political system in the wake of the Supreme Court’s ruling in Citizens United striking down campaign finance reform has warped our political system. Most Americans favor sensible limits on independent expenditures and on campaigning generally.

Abolish the electoral college

The electoral college is an undemocratic relic of an era when political elites did not trust the people to elect the president. Its day has passed.

Pass the Equal Rights Amendment

A bar against discrimination on the basis of sex should be enshrined in our constitutional text. Such an amendment could also incorporate more protection for reproductive rights if the basic ERA were reconfigured.

Presidential recall

Right now, the United States has nothing other than the extraordinary remedy of impeachment and removal to get rid of a president who has lost popular support. Governors across the nation are subject to recall, not just impeachment and removal. Why not presidents?

Supreme Court term limits and panels

A Justice’s term could be a long one, but it should end, making room for changes in regime on a more regular basis. Adding Justices to the Court and creating a system of randomly drawn panels to hear cases would both lower the stakes for any individual nomination and give the Court more capacity to resolve important national issues. (The latter two things could be done through congressional legislation.)

Representation for all citizens

It’s quite simply wrong for a modern democracy to have citizens who have no meaningful representation at the national level. Yet American citizens from Puerto Rico, the Virgin Islands, the District of Columbia, Guam, and any other territories the US may acquire in the future do not have national representation in Congress.


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