Professor Levinson and the “Imbecilic” Constitution: Speaking Liberty to Power

In a recent piece in the New York Times, Professor Sanford Levinson bewailed our Imbecilic Constitution.  In his article Professor Levinson claimed that “critics across the spectrum call the American political system dysfunctional, even pathological. What they don’t mention, though, is the role of the Constitution itself in generating the pathology. … Our vaunted system of “separation of powers” and “checks and balances” … means that we rarely have anything that can truly be described as a “government.” Save for those rare instances when one party has hefty control over four branches — the House of Representatives, the Senate, the White House and the Supreme Court — gridlock threatens.”  Professor Levinson then goes on to propose many radical changes to our constitutional government to get around this gridlock.

It is quite arrogant of Professor Levinson to describe a document which has served and endured for 225 years as imbecilic.  But he is not alone.  In this criticism he renews the complaints of progressives since Woodrow Wilson frustrated by their inability to get the Founders’ convoluted tri-partite federal government structure to act decisively and vigorously to address the many problems they are sure the federal government can solve.  Fortunately, Professor Richard Epstein has written an excellent rebuttal to Professor Levinson, pointing out how many of our modern problems began precisely because in the early 20th century the Supreme Court allowed the federal government to breach its constitutional bounds and expand far beyond its original constitutional functions.  Professor Epstein goes on to show how many of Professor Levinson’s proposed constitutional innovations would just make matters worse.

What leftists like Professor Levinson can not, or will not, recognize is that any expansion of a government’s power must necessarily detract from the liberty of its people.  That is the very definition of government.  It is the institution which people in society permit to curtail their liberty in order to benefit from living in society.  As Professor Epstein notes, we “should not defend a state of anarchy to ward off the excesses of state power. But unless we once again find the middle ground between too much and too little government power, we will continue to suffer as a nation.”  The Founders’ brilliant insight was to create an institutional framework for reaching that middle ground.  They could not see into the future to know exactly what the appropriate level of government power should be.  But they could create a balanced government system which would make it difficult to expand government power without the consent of many different political actors.  This would protect the interests of liberty against the forces always pushing to expand government power.  Professor Epstein concludes that the “original Constitution was not imbecilic.  On many questions, it reflects a level of wisdom that has unfortunately been lost today.”

However, there is one critical point where both professors shoot wide of the mark.   The main point of Professor Levinson’s piece is that the Article V amendment process is now moribund.  He writes that the “last truly significant constitutional change was the 22nd Amendment, added in 1951, to limit presidents to two terms.”  I would disagree – the last truly significant constitutional change was actually the 19th Amendment, added in 1920 to extend the franchise to women in all the states!  He continues that the “near impossibility of amending the national Constitution not only prevents needed reforms; it also makes discussion seem futile and generates a complacent denial that there is anything to be concerned about.”

Professor Epstein’s response shows that there is in fact much to be concerned about.  In the absence of a workable amendment process, the Supreme Court has usurped that function and, as well summarized by Professor Epstein, in decisions beginning even before the Roosevelt New Deal Court created a situation where “today’s working Constitution is quite different from the sparer government regime put in place by the original Constitution” and this “increased role of the government in the economy has had a negative effect on American society.”

The issue is, what do we do about it?  Professor Epstein and I had a brief exchange on this during a recent Federalist Society teleforum on his new book, Design for Liberty: Private Property, Public Administration, and the Rule of Law,  Professor Epstein first noted that none of the current Supreme Court justices, including the “conservative” ones, had shown any inclination to reverse the last 80 plus years of Supreme Court precedents which have effectively amended the Constitution to allow this vast expansion of federal power.  When I asked if he could craft a constitutional amendment to annul these decisions he assumed I was suggesting an amendment which would be initiated by a second constitutional convention under the current Article V as advocated by Professor Levinson.  Professor Epstein expressed his opposition to such a convention because “Sandy Levinson would run it.”  (I agree with Professor Epstein here, having written in an earlier post that one reason to oppose the convention method of constitutional amendment is because law professors and politicians would control it.)       

Professor Epstein stated that his approach was to build the normative case for returning to limited government.  This is a worthy pursuit and I pray for his success in persuading many others.  But even if he is successful, by what method would the return to a more limited government be implemented?  To restore something approaching the pre-New Deal limited federal government would require overturning dozens, maybe hundreds, of Supreme Court precedents.  If even conservative stalwarts like Clarence Thomas and Antonin Scalia will not do this, how will it be achieved?  Will we rely on politicians to simply vote to restore limited government?  To think that this could be accomplished simply by the normal political processes belies all experience.  And even if one President or Congress rolls back the federal leviathan to some extent, that work can easily be reversed by the next set of politicians to promise that Nanny Sam will fix everything.

The only way to restore some form of limited federal government is to turn to the ultimate power the Founders gave us – amendment.  Only amendment can effectively overcome the decades of hoary Supreme Court precedents which underlie the federal leviathan.  These would not be radical amendments of the type Professor Levinson advocates.  Instead, these would be amendments simply restating and re-affirming the original constitutional limits on the federal government.  Of course, the federal Congress will not initiate amendments limiting its own powers.  Therefore we must reform the amendment process to enable the states to initiate amendments without having to go through either Congress or the unworkable and outmoded mechanism of a convention.  This will open the path for grassroots constitutionalists to restore the constitutional balance Professor Epstein advocates.  Such an “amendment amendment” proposal can be found here.

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