Should We Have a New Constitutional Convention?

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.

…So by a stroke as bold as it proved successful, they founded a nation, although they had set out only to find a way to reduce trade restrictions. So also they solved the particular problem causative of their historic action, by introducing the commerce clause in the new structure of power.

Therefore, although Levinson’s book contains a lucid and accurate description of the costs incurred by the Framers’ “great compromises,” his discussion omits an adequate consideration of the nature of the quid pro quo—specifically, of what benefits were obtained in return. Those benefits included the development of a flourishing national market where free competition replaced multiple restraints of trade in thirteen balkanized local markets. The contrast between the Framers’ prompt creation of a flourishing common market and the years that went by before such a market arrived in Europe should not be ignored.

Nor should we ignore the importance of the replacement of each state’s absolute veto over certain federal actions with a bicameral legislature that has the power to take action in the national interest, if majorities in both houses agree. Proper deference to the importance of that compromise casts doubt upon state challenges to federal legislation based on the concept of state sovereign dignity, because the Senate provides the proper forum for approving such federal action. Such deference is also an answer to the concerns expressed by President Jackson in his famous message explaining his veto of the legislation authorizing the Second Bank of the United States, which Levinson discusses in the book.

Rather than “loathsome,” in my judgment the compromise that created the Senate was constructive. It enabled the Framers to accomplish their mission, and provides a principled basis for rejecting many states’ rights challenges to legislation that has been approved by a majority of the states in a Senate vote. When states, through their representation in the Senate, have participated in creating federal legislation, they should not be treated as above the law that they participated in enacting. This is so even though, as Levinson notes, the Seventeenth Amendment altered the selection mechanism for senators to establish direct election by the citizens of the state, because equal representation for each state persists and cannot be amended away. And neither the Tenth Amendment, which merely confirms that federal legislation must be authorized by an enumerated power, nor the Eleventh Amendment, which by its text concerns only suits by one state’s citizens against another state, should be understood to affect this point.

In a handful of recent cases, however, the Supreme Court has made the fundamental mistake of failing to properly account for the constitutional compromise that created the Senate. Majority approval of the states, as reflected in the outcome of a Senate vote, should be sufficient to justify the exercise of federal power. Yet in Alden v. Maine (1999), the Court held that the states could not be required to obey laws applying to the national labor market. In Printz v. United States (1997), it ruled that state agents need not assist the federal government’s efforts to secure the safety of its citizens. These are examples of Supreme Court cases that will be seen as unfaithful to that compromise.

Referring to the two great compromises, Levinson asks, “The Central Question: Was the Constitution Worth It?” By omitting a detailed analysis of what was gained by the compromises, Levinson fails to provide readers with a direct answer to that question. That failure persuades me that, rather than trying to generate support for a new constitutional convention, Levinson’s primary purpose in writing the book is actually what he describes as merely one of his aims: “to encourage long overdue conversation about ignored features of our constitutions.” The remaining eminently readable chapters of the book admirably accomplish this purpose.

In particular, Levinson devotes significant attention to the Constitution’s preamble, noting that it relates more to an understanding of the purposes motivating ambiguous constitutional provisions (what he calls the “Constitution of Conversation”) than to an assessment of the wisdom of the clear provisions (the “Constitution of Settlement”). It is interesting that the two Supreme Court opinions that quote the preamble to the US Constitution—Justice James Wilson’s opinion in Chisholm v. Georgia (1793) and Chief Justice John Marshall’s opinion in McCulloch v. Maryland (1819)—were both opinions of great historical significance. Federal judges would do well to pay more attention to the preamble’s explanation of why the Framers made their great compromises:

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

As Levinson notes after reviewing a host of state and foreign preambles, that text “is clearly among the most secular of national preambles…[offering] nothing to support the notion, for example, that we are a ‘Christian nation’ in anything more than a sociological sense.”

While they may have merely been intended to encourage long-overdue conversation, the chapters discussing the electoral college and the need for more complete consideration of responses to potential disasters not only contain thoughtful insights, but also identify constitutional provisions that should be amended.

Levinson correctly argues that the electoral college, now governed by the Twelfth Amendment, is an anomaly. As the early history of the electoral college demonstrates, even from the beginning it was beset with problems. The 1800 election was a fiasco, Levinson explains, because despite Jefferson’s being the clear popular vote winner over Adams, with Jefferson winning 41,330 votes and Adams only 25,962, the electoral vote difference was much narrower and resulted in deadlocks that needed to be broken in the House of Representatives. The Twelfth Amendment addressed one facet of the problem presented by that election by splitting electors’ votes into separate tracks for the presidency and vice-presidency, but electors retain the freedom under the Constitution to vote as they wish; they are not bound to vote for their party’s candidate.

Levinson notes that “faithless electors” have voted based on their idiosyncratic choices, rather than party, 156 times over the course of the nation’s history. Although those individual votes have never changed an election’s outcome, a legal regime that permits electors to disregard the majority’s choices in the states that they represent should not be preserved. Because of my respect for the compromise that produced the Senate, however, I do not share what I understand to be Levinson’s view that the outcome of presidential elections should necessarily be governed by the nationwide popular vote, rather than by a majority of the states’ electoral votes.

Levinson does, however, make three powerful arguments about the electoral college that merit more attention than they have received. First, reviewing the early history of the college, he explains that its adoption rested on an assumption that “faction”—or party politics—would not interfere with the chosen electors’ ability to select a great leader like George Washington on the basis of his individual merit. Ironically, it is now party loyalty, rather than any express legal requirement, that dictates the votes of the virtually anonymous electors.

Second, the Three-Fifths Compromise that gave citizens in slave states extra influence in the House of Representatives became translated into a bonus for the slave states in the process of electing the president before the Civil War. After the Thirteenth and Fifteenth Amendments barring slavery and protecting the right of all citizens to vote were adopted, that bonus for slave states should have been terminated. In fact, however, it was effectively replaced, in local practice, by a “Jim Crow” bonus, denying virtually all African-Americans in the South any opportunity to vote, while enlarging the population base of all of the southern states to include 100 percent of the former slaves instead of just three-fifths. That change may be a factor in explaining why the southern states had such disproportionate power, including in the Democratic Party, for decades. Abolishing the electoral college would have symbolic significance by hammering an additional nail into Jim Crow’s coffin.

Third, the evidence acquired by polling during the last sixty-five years provides persuasive—indeed, rather dramatic—evidence that the American public would prefer the direct popular election of the president to the preservation of the electoral college. That preference is reported by percentages of poll respondents ranging from a low of 58 percent in January 1967 to 81 percent in November 1968. The most recent poll cited by Levinson indicates that 61 percent of Americans in 2004 said they’d prefer a direct vote.

Levinson highlights a true weakness of the Constitution by noting its failure to provide an adequate response to potential disasters. He focuses upon the possibilities of a disabled president who resists being temporarily excused from duties, a disabled vice-president, or any of a number of emergencies that might test the stringency of constitutional rules, such as the attacks on September 11, 2001, or the possibility of a global pandemic or nuclear catastrophe.

Levinson’s discussion illustrates errors that have been committed by the Supreme Court in reading limitations on federal power into the Constitution that are unsupported by its text. In Printz v. United States, the Court held that the federal government could not direct county officials to conduct background checks on prospective handgun purchasers during an interim period in which federal officials could not. That holding makes no sense. Just as the federal government can draft citizens into the army, so, too, should it be able to call upon state agents to assist with federal functions.

Similarly, in New York v. United States, the Court invalidated an act of Congress that attempted to provide a solution to the national concern about the disposal of radioactive waste; the Court held that the federal government could not command states to “take title” to such waste. In neither Printz nor New York was the holding even arguably mandated by constitutional text; nor was there historical or structural support for the Court’s conclusions, as my dissents in those cases explained.² In the face of pressing national problems, such as those at issue in Printz and New York, or far more serious and time-sensitive emergency situations, such as the September 11 attacks, it is exceedingly unwise to restrict the ability of the federal government to meet the crisis on the basis of a constitutional reading that lacks historical justification or textual support.

Levinson’s book is interesting not simply for its substantive insights, but also for the sources it chooses to examine. Levinson does not focus solely on the United States Constitution. Instead, the texts that he considers worthy of study include the constitutions adopted in each of the fifty states, as well as constitutional provisions adopted in other parts of the world; he also notes that some countries, such as Israel and Great Britain, have no written constitution at all. A salient point that Levinson reiterates is that state constitutions are amended far more easily and frequently than our own. He considers it “quite appalling” that over half the respondents to a 1988 poll did not know that their state had its own constitution; for him that widespread ignorance is even more disturbing than the fact that far more Americans can name the Three Stooges than any member of the US Supreme Court.

The two principal differences between most, if not all, state constitutions and the federal Constitution concern the method of selection of attorneys general and judges, and the tenure of judges. The fact that state attorneys general are typically elected by the voters, whereas the US attorney general is an appointed member of the president’s cabinet, illuminates the scope of the federal executive’s power.

In my judgment, however, while that is an interesting comparison, it does not rise to the level of a criticism that merits changing our federal Constitution. As for the difference between state election of judges and the federal guarantee of life tenure, I firmly believe that the federal rule is by far the wiser one. The point is illustrated by the recent decision of the Iowa electorate to remove state supreme court justices who had concluded that a state statute prohibiting same-sex marriage violated the state constitution.³ Disciplining judges for making an unpopular decision can only undermine their duty to apply the law impartially. Indeed, as Sir Matthew Hale, a respected English judge, explained centuries ago, the duty to be impartial and to be indifferent to popularity is an essential attribute of the judicial office.⁴

While the guarantee of life tenure protects the interest in the impartiality of federal judges, Levinson correctly argues that one consequence of vesting the judicial appointment power in the president is to create a Supreme Court that is less “professional” and less diverse than comparable courts elsewhere. Most foreign systems limit the discretion of the appointing authorities. For example, in Belgium, half of the constitutional court must be former legislators; and in Canada, three of the nine justices must come from Quebec. It has been customary in France and Ireland that at least one of the judges should be a non-Catholic—as for much of the last century it was customary for at least one Supreme Court justice to be Jewish.

Today all members of the United States Supreme Court are either Catholics or Jews, and Anthony Kennedy is the only justice who lived west of the Mississippi at the time of his appointment; but all received their legal training at Harvard, Yale, or Columbia, and he is no exception, having attended Harvard Law School. More diversity in the background of the justices would unquestionably be desirable, but will likely occur in time without any amendment to the Constitution.

Levinson identifies three different possible justifications for giving judges the authority to provide the final answers to questions about the meaning of the “Constitution of Conversation”: first, that they are experts in the law in the same way that rocket scientists have a field of expertise; second, that they are gifted with exceptional wisdom; or third, that the terms of their office liberate them from “political” constraints. He correctly rejects the first answer because the number of dissenting opinions belies the suggestion that there is only one permissible answer to the kind of question that courts consider. He correctly rejects the second answer because he agrees with Justice Holmes that “the life of the law is not logic, but experience.” While he concludes that the third answer depends on one’s views about the empirical consequences of election of judges, in my judgment, he accurately identifies the controlling criterion in this sentence: “Life tenure and the liberation from political accountability would remove certain incentives that lead ordinary leaders to betray the public good.”

Instead of reading like a brief in support of Levinson’s conclusions, Framed is a series of thoughtful and interesting essays discussing strengths and weaknesses of various structures established by our Constitution. The book offers an enlightening comparison of those structures with those adopted by states and foreign governments in dealing with similar issues. Many may disagree with Levinson’s arguments, but they will have to think hard about why they disagree. His book is well worth reading.