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Should We Have a New Constitutional Convention?

David Hume Kennerly/Getty Images
Chief Justice Warren Burger and newly appointed Justice Sandra Day O’Connor on the steps of the Supreme Court building, Washington, D.C., September 1981

In his letter to President Reagan written on June 17, 1986, Warren Burger explained his unique reason for resigning as chief justice of the United States. He had accepted the position of chairman of the Commission on the Bicentennial of the Constitution, making him responsible for telling the story of our great constitutional system to the American people, a task that he could not adequately perform while continuing in his judicial office.1 I remember that Justice Thurgood Marshall did not completely share Warren Burger’s veneration for all parts of the Constitution. The title—Framed—that Sanford Levinson, a respected professor of constitutional law at the University of Texas, has chosen for his recent 437-page book about the United States Constitution suggests that he, too, has misgivings about our country’s founding document.

In Framed, Levinson does not try to provide answers to debatable questions of constitutional interpretation. Instead, he primarily assesses the wisdom of provisions whose meaning is perfectly clear. We can readily understand the language of the Twentieth Amendment that ends the terms of service of the president and the vice- president at noon on the twentieth day of January, but this does not mean that we understand why that date was selected, or whether events have occurred since that might make it appropriate to shorten the period between an election and a new president’s assumption of executive power.

The book’s title, Framed, is a word that has more than one meaning. We often describe the men who drafted and ratified our Constitution as its “Framers” because they took action to design and create a new governmental structure. We seldom, however, acknowledge that their legal authority for engaging in that important enterprise extended only to the right to propose amendments to the Articles of Confederation, not to replace it. Even though Levinson disavows the idea that the title of his book was intended to suggest that the American people were somehow “framed,” in the more accusatory sense, by the unlawful work of the usually venerated “Framers,” that thought will occur to some readers.

Readers may consider that possibility not only when they are evaluating Levinson’s perceptive description of mismatches between the document’s response to eighteenth-century problems and to problems confronting the much different modern-day world, but especially when they reach Levinson’s conclusion:

We need a new constitutional convention, one that could engage in a comprehensive overview of the US Constitution and the utility of many of its provisions to twenty-first century Americans.

Who would be the framers of this new Constitution? Levinson “would advocate that delegates from each state, proportionate to overall population, be selected by lottery, with very limited restrictions on selection (the most obvious one being age).” He would pay the delegates

the salary for two years of a Supreme Court justice or senator, given the public importance of their job, and also to make possible service by the less well off. They would also collectively operate with a budget sufficient to allow hearings all over the United States and the world that would allow them to make the most informed choices possible regarding the kinds of issues examined throughout this book.

In that final chapter of his book, as well as in the first chapter, Levinson quotes respected commentators and the results of opinion polls that support the conclusion that our present government is “dysfunctional.” According to those polls, over 80 percent of Americans disapprove of Congress. Moreover, recent events involving state governments as well as the national one lend support to such public skepticism:

As the manuscript moved toward publication, the Minnesota state government was shut down for three weeks because of the inability of its divided state government to reach agreement on a budget…. In some ways even more dramatic, because it goes to the heart of what one ordinarily thinks of as a basic attribute of government, is the possibility that the civil justice system in San Francisco will be functionally shut down because of drastic cuts in the judiciary’s budget.

And, after the recent crisis concerning the federal debt ceiling, Standard & Poor’s downgraded American debt from AAA to AA status, explaining that

the downgrade reflects our view that the effectiveness, stability, and predictability of American policymaking and political institutions have weakened at a time of ongoing fiscal and economic challenges.

I am not persuaded that a new constitutional convention is the appropriate remedy for the recent state and federal budgetary crises—and I would certainly not endorse Levinson’s proposed lottery for selecting a new generation of framers. Still, his reasons for concluding that our country needs a new Constitution include not only these perceptions by commentators and the results of public polls, but also his own identification of what he regards as flaws in the Constitution, and its potential failure to authorize adequate responses to possible calamities that are foreseeable even if highly unlikely. Interestingly, he does not argue that any recent decision of the Supreme Court was erroneous, or should be reexamined upon a reframing.

Indeed, Levinson instead treats the Constitution as comprised of a “Constitution of Settlement”—those provisions whose meaning is settled by unambiguous text, such as the requirement that the president must be thirty-five years old—and a “Constitution of Conversation”—those provisions, such as the Equal Protection Clause, whose meaning is sometimes unclear and must be explicated through debates among judges and scholars. Most of the book deals with the former rather than the latter, assessing the wisdom of the Constitution’s structural provisions, rather than divining their meaning.

Levinson focuses upon “the two central issues that generated the most famous and enduring ‘great compromises’ that made the Constitution a political possibility: political representation and slavery.” With respect to each of those major issues, differences between the larger and smaller states and between free states and slave states were resolved in two separate agreements.

The term “great compromise” is used to describe the first of the agreements affecting political representation: the agreement to vest legislative power in a Congress that includes two houses—the Senate and the House of Representatives—with every state having equal voting power in the Senate. The organization of the Senate meant that Delaware, with a population of only about 59,000 in 1790, would have the same representation as Virginia, with a population of 691,000. (Such disparities are similar to those that persuaded Earl Warren and his colleagues to adopt the “one person, one vote” rule for legislative districting in Reynolds v. Sims.) As Levinson notes, Madison was originally appalled by the idea that Delaware and Virginia would have the same representation in the Senate, but eventually accepted as credible the threat of the small states to walk out of the Constitutional Convention if the compromise was not accepted.

The second of the agreements relating to political representation primarily affected the House, where states are represented on the basis of their population; the disputed issue was whether slaves should be counted as part of the population base. The Three-Fifths Compromise treated the population as including all free persons, but only three-fifths of the slaves. As Levinson correctly notes: “Whatever one thinks of the three-fifths rule, it had nothing to do with slaveholders believing that their slaves were only three-fifths human.” As long as slaves had no right to vote, the slave states would obviously have benefited from including all slaves in the population base that determined the numerical strength of slave-state representation in the House of Representatives. “It was the anti-slave states that insisted on slaves counting as only three-fifths of free persons, and that was indeed a compromise from their preferred outcome that slaves not count at all in computing the basis for representation.”

The second “great compromise” included both the Fugitive Slave Clause, by which states were bound to return slaves who had “unlawfully” escaped from a slave state, and the clause that protected the international slave trade until 1808. The importance of those protections, as well as the importance of the first “great compromise,” to the states’ willingness to enter the Union is confirmed by the fact that Article V, which explains how the Constitution can be amended, provides that any amendment that would allow Congress to regulate the slave trade could not be adopted before 1808, and that any amendment that would deprive a state of its equal representation in the Senate could never be adopted.

In Levinson’s opinion, both of these “great compromises” produced serious flaws in the Constitution. He notes that there are some who find the Senate as created by the Constitution “loathsome.” And he appears to accept the characterization of the Constitution’s treatment of slavery as a “rotten compromise” that was morally indefensible and should have been rejected even if the consequences had been dissolution of the Union and bloody warfare among separate countries carved out along the Atlantic coast.

But Levinson’s evaluation of the great compromises essentially ignores the fact that the failure to reach an agreement would have preserved the Articles of Confederation, which required unanimous agreement to implement any change that might impair the sovereignty of any state. An effective veto power for every state would surely have resulted in an indefinite continuation of the southern states’ participation in the slave trade.

Nor does Levinson acknowledge the even more important fact that a failure to replace the Articles of Confederation would have exacerbated the problem of state restraints on free commerce that provided the primary motivation for framing a new government. The central importance of the Commerce Clause (which Levinson does not mention) is well described by Justice Wiley Rutledge in his book, A Declaration of Legal Faith, published in 1947:

If any liberties may be held more basic than others, they are the great and indispensable democratic freedoms secured by the First Amendment. But it was not to assure them that the Constitution was framed and adopted. Only later were they added, by popular demand. It was rather to secure freedom of trade, to break down the barriers to its free flow, that the Annapolis Convention was called, only to adjourn with a view to Philadelphia. Thus the generating source of the Constitution lay in the rising volume of restraints upon commerce which the Confederation could not check. These were the proximate cause of our national existence down to today.
As evils are wont to do, they dictated the character and scope of their own remedy. This lay specifically in the commerce clause. No prohibition of trade barriers as among the states could have been effective of its own force or by trade agreements. It had become apparent that such treaties were too difficult to negotiate and the process of securing them was too complex for this method to give the needed relief. Power adequate to make and enforce the prohibition was required. Hence, the necessity for creating an entirely new scheme of government.
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    President Reagan, Remarks on the Resignation of Supreme Court Chief Justice Warren E. Burger, June 17, 1986. 

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