March 29, 2012

Private: Why Political Progressives Need to Think About the Entire Constitution

Affordable Care Act, The Constitution In 2020


By Sanford Levinson, W. St. John Garwood and W. St. John Garwood, Jr. Centennial Chair in Law at the University of Texas Law School, and Professor of Government at the University of Texas at Austin.

I am immensely grateful to be invited to discuss my new book, Framed: America’s 51 Constitutions and the Crisis of Governance, to the readers of ACSblog. I have crafted these comments in a way that highlights what may be an important difference between my take on the Constitution and that of many of my friends in the ACS. Although many, perhaps most of us, share the perception that the contemporary United States is increasingly caught in a “crisis of governance,” attention tends to be addressed at the defects of particular leaders, including, of course, the present majority of the United States Supreme Court. There is much with which I agree in the vision of The Constitution in 2020  set out in the book co-edited by my friends and casebook co-editors Jack Balkin and Reva Siegel.

However, I believe that we cannot begin to diagnose the causes of our crisis by focusing only on what I call the Constitution of Conversation. It can also be described as the litigated Constitution, and it is litigated precisely because clever lawyers are highly skilled in demonstrating that the indeterminate language of, say, the Commerce or Equal Protection clauses of the Fourteenth Amendment, can be used to support a constitutional vision congruent with the collective goals of the lawyers’ clients or perhaps the lawyers themselves (if they are “cause lawyers”).  In any event, these conversations are known to all of us, and we see them being spelled out particularly passionately with regard to the Affordable Care Act.

But the most important political realities of the Affordable Care Act are first that it took literally more than a half century to pass after initial proposals by Harry Truman and, secondly, that it is a defective bill in many respects with regard genuinely to getting a handle on the costs of a modern medical system. To explain these realities requires no conversation about the “meaning” of the Constitution. Rather, it requires addressing too-often-ignored “civics class” features of the United States Constitution. How does a bill become a law (or, more practically, why do most legislative proposals have only a snowballs chance in hell of being passed)? The answer lies in the almost insurmountable hurdles set up by the particular American system of bicameralism and the opportunity of presidents to veto any legislation they do not like on policy grounds, with the near impossibility of overrides. I will rejoice when the Supreme Court upholds the Affordable Care Act, as I still think is likely. But it should also be recognized that what the Court will be doing, at best, is saying that a mediocre, albeit necessary, piece of legislation is constitutional if it can run the minefield against progressive legislation established in 1787 and left remarkably unchanged since then. That is the importance of looking at the basic “framing” of the Constitution and the assumptions underlying it. It was designed by people who were basically mistrustful of popular democracy and, more particularly, redistributive legislation. They succeeded quite well in creating a political system that stifles both.

Moreover, the book looks at the constitutions of the 50 states, almost all of which differ in extremely interesting ways from the national constitution. All but Delaware’s, for example, include at least some element of direct democracy, whereas the national Constitution is committed exclusively to representative democracy.  All of the state constitutions include some elements of “positive rights,” the most important example being education. Each and every state constitution is easier to amend than the national constitution. Fourteen state constitutions allow the electorate at regular intervals to vote whether to have a new state constitutional convention.  Each and every state follows the rule of “one-person/one vote” established by the Supreme Court in 1964 instead of tolerating the sheer absurdity of an institution like the national Senate and its grant of equal representation to Wyoming and California, Vermont and Texas.  Most state judges in the United States are elected—and have limited tenure in office—as distinguished from the national practice of appointed judges (with Senate confirmation) and tenure until death. 

A century ago, political progressives were well aware of the deficiencies of the national Constitution and put great effort into such amendments as the 16th, 17th, and 19th amendments. Today, that kind of “constitutional imagination,” which requires that one attend to the seemingly dull and boring “structural Constitution”— what I call the Constitution of Settlement — is almost completely absent as we devote almost literally all of our time and attention to the Constitution of Conversation. 

My deepest hope is that members of the ACS will realized that serious discussion of The Constitution in 2020 should include how it might be necessary to transform basic constitutional structures if we are ever going to achieve the progressive changes in national policy that most of us support.