Writing A Better Constitution

Posting about Con Law Prof. Sanford Levinson's ruminations on writing a better Constitution, which entail some very serious thinking on the democratic processes enshrined in our Founding document, Ezra Klein, an always interesting and almost always smart writer, misses the point imo. Ezra writes:

I could totally write a better constitution. Know why? I have 250 more years of historical knowledge and contemporary context with which to ensure it's applicable to modern times. For instance: I could write a way clearer 2nd amendment, and I'd limit judicial terms to 12 years, and I'd make the electoral college go bye-bye.

But these "improvements" miss the point of Levinson's work and, frankly miss the point of the Constitution. I'll explain why I think so on the other side.

Levinson engages in serious thnking on the builtin and deliberate balances the Founding Fathers enshrined and argues eloquently and sometimes convincingly that the political MECHANISMS and seriously flawed to the point of being undemocratic. I can not do his thinking justice here but he wrote series of fascinating posts at, for my money, the best law blog on the planet, Balkinization (an aside, what I REALLY like about that site is the fact that they do not mince words with some of the absurdities that will be argued by the Right. And when you have Balkin, Levinson, Lederman and all the other top notch thinkers addressing the wide gamut of issues we face, if the law is of interest to you, then that site must be read daily. OF course I disagree with a lot of their posts, but that's have the fun - disagreement with honest, brilliant thinkers is as good as it gets.)

Ezra reduces Levinson systematic analysis to a checklist of "improvements." This is simply the wrong way to think about the Constitution. I have written on this subject often. Here is an example:

My view is that a Living Constitution seeks to understand the original purpose of the Constitution, and its specific provisions, and discern how best to serve that purpose in the case then presented. I believe that the proper function of Constitutional interpretation does not entail reading the Constitution as one reads a statute - it requires more than a formalized reading of the text and search for specific findings of the original understanding of the specific text in question and the applicability to the case at hand. It requires a unifying approach, one that seeks to read the Constitution as a whole, harmonizing the component parts of the Constitution, the empowering provisions, the limiting provisions, the individual rights created and preserved. It requires understanding the purpose of the creation of a third coequal branch, the judicial branch, with the attendant common law judicial powers and restraints.

The first great Chief Justice, John Marshall, did yeoman work in establishing this role and approach for the Supreme Court. I argue that Marshall's jurisprudence established that Constitutional interpretation requires both respect for the original purpose and application of Common Law principles to discern the proper application of original purpose to the specific case presented.

The phrase "Living Constitution" is often used to disparage this approach. But I think, properly understood, the phrase is very appropriate - the purpose of the Constitution lives and grows - and the original PURPOSES are essential to that growth - by understanding the WHY the Framers wrote what they wrote and serving the original PURPOSE by transposing that purpose upon the specific case.

Ezra sees the organic component of the Living Constitution as a weakness that requires "editing." This is simply a fundamental misunderstanding of our Constitution and how it is designed to operate and adapt. As I have written before, Jack Balkin explains it better than I do:

This article argues that the debate between originalism and living constitutionalism offers a false dichotomy. Many originalists and their critics improperly conflate fidelity to the original meaning of the constitutional text with fidelity to how people living at the time of adoption expected that it would be applied. That is, they confuse "original meaning" with "original expected application." Constitutional interpretation requires fidelity to the original meaning of the Constitution and to the principles that underlie the text, but not to original expected application. This general approach to constitutional interpretation is the method of "text and principle." This approach is faithful to the original meaning of the constitutional text, and to its underlying purposes. It is also consistent with the idea of a basic law that leaves to each generation the task of how to make sense of the Constitution's words and principles in their own time. Although the constitutional text and principles do not change without subsequent amendment, their application and implementation can. That is the best way to understand the interpretive practices characteristic of our constitutional tradition and the work of the many political and social movements that have transformed our understandings of the Constitution's guarantees. It explains, as other versions of originalism cannot, why these transformations are not simply mistakes that we must grudgingly accept out of respect for settled precedent, but are significant achievements of our constitutional tradition.

As did Justice Story:

A]s a frame or fundamental law of government, [t]he constitution of the United States is to receive a reasonable interpretation of its language, and its powers, keeping in view the objects and purposes, for which those powers were conferred. By a reasonable interpretation, we mean, that in case the words are susceptible of two different senses, the one strict, the other more enlarged, that should be adopted, which is most consonant with the apparent objects and intent of the constitution; that, which will give it efficacy and force, as a government, rather than that, which will impair its operations, and reduce it to a state of imbecility.

This consideration is of great importance in construing a frame of government; and a fortiori a frame of government, the free and voluntary institution of the people for their common benefit, security, and happiness.

. . . [A] constitution of government, founded by the people for themselves and their posterity, and for objects of the most momentous nature, for perpetual union, for the establishment of justice, for the general welfare, and for a perpetuation of the blessings of liberty, necessarily requires, that every interpretation of its powers should have a constant reference to these objects. No interpretation of the words, in which those powers are granted, can be a sound one, which narrows down their ordinary import, so as to defeat those objects. That would be to destroy the spirit, and to cramp the letter. It has been justly observed, that "the constitution unavoidably deals in general language. It did not suit the purposes of the people, in framing this great charter of our liberties, to provide for minute specification of its powers, or to declare the means, by which those powers should be carried into execution. It was foreseen, that it would be a perilous, and difficult, if not an impracticable task. The instrument was not intended to provide merely for the exigencies of a few years; but was to endure through a long lapse of ages, the events of which were locked up in the inscrutable purposes of Providence. It could not be foreseen, what new changes and modifications of power might be indispensable to effectuate the general objects of the charter; and restrictions and specifications, which at the present might seem salutary, might in the end prove the overthrow of the system itself. Hence its powers are expressed in general terms, leaving the legislature, from time to time, to adopt its own means to effectuate legitimate objects, and to mould and model the exercise of its powers, as its own wisdom and the public interests should require."21 Language to the same effect will be found in other judgments of the same tribunal.22

If, then, we are to give a reasonable construction to this instrument, as a constitution of government established for the common good, we must throw aside all notions of subjecting it to a strict interpretation, as if it were subversive of the great interests of society, or derogated from the inherent sovereignty of the people. And this will naturally lead us to some other rules properly belonging to the subject.

Where the power is granted in general terms, the power is to be construed, as coextensive with the terms, unless some clear restriction upon it is deducible from the context. We do not mean to assert, that it is necessary, that such restriction should be expressly found in the context. It will be sufficient, if it arise by necessary implication. But it is not sufficient to show, that there was, or might have been, a sound or probable motive to restrict it. A restriction founded on conjecture is wholly inadmissible. The reason is obvious: the text was adopted by the people in its obvious, and general sense. We have no means of knowing, that any particular gloss, short of this sense, was either contemplated, or approved by the people; and such a gloss might, though satisfactory in one state, have been the very ground of objection in another. It might have formed a motive to reject it in one, and to adopt it in another. The sense of a part of the people has no title to be deemed the sense of the whole. Motives of state policy, or state interest, may properly have influence in the question of ratifying it; but the constitution itself must be expounded, as it stands; and not as that policy, or that interest may seem now to dictate. We are to construe, and not to frame the instrument.23

. . . It has been observed with great correctness, that although the spirit of an instrument, especially of a constitution, is to be respected not less than its letter; yet the spirit is to be collected chiefly from the letter. It would be dangerous in the extreme, to infer from extrinsic circumstances, that a case, for which the words of an instrument expressly provide, shall be exempted from its operation. Where words conflict with each other, where the different clauses of an instrument bear upon each other, and would be inconsistent, unless the natural and common import of words be varied, construction becomes necessary, and a departure from the obvious meaning of words is justifiable. But if, in any case, the plain meaning of a provision, not contradicted by any other provision in the same instrument, is to be disregarded, because we believe the framers of that instrument could not intend what they say, it must be one, where the absurdity and injustice of applying the provision to the case would be so monstrous, that all mankind would, without hesitation, unite in rejecting the application.26 This language has reference to a case where the words of a constitutional provision are sought to be restricted. But it appears with equal force where they are sought to be enlarged.

. . . No construction of a given power is to be allowed, which plainly defeats, or impairs its avowed objects. If, therefore, the words are fairly susceptible of two interpretations, according to their common sense and use, the one of which would defeat one, or all of the objects, for which it was obviously given, and the other of which would preserve and promote all, the former interpretation ought to be rejected, and the latter be held the true interpretation. This rule results from the dictates of mere common sense; for every instrument ought to be so construed, ut magis valeat, quam pereat.27 For instance, the constitution confers on congress the power to declare war. Now the word declare has several senses. It may mean to proclaim, or publish. But no person would imagine, that this was the whole sense, in which the word is used in this connexion. It should be interpreted in the sense, in which the phrase is used among nations, when applied to such a subject matter. A power to declare war is a power to make, and carry on war. It is not a mere power to make known an existing thing, but to give life and effect to the thing itself.28 The true doctrine has been expressed by the Supreme Court: "If from the imperfection of human language there should be any serious doubts respecting the extent of any given power, the objects, for which it was given, especially when those objects are expressed in the instrument itself, should have great influence in the construction."29

. . . Where a power is remedial in its nature, there is much reason to contend, that it ought to be construed liberally. That was the doctrine of Mr. Chief Justice Jay, in Chisholm v. Georgia;30 and it is generally adopted in the interpretation of laws.31 But this liberality of exposition is clearly inadmissible, if it extends beyond the just and ordinary sense of the terms.

. . . In the interpretation of a power, all the ordinary and appropriate means to execute it are to be deemed a part of the power itself. This results from the very nature and design of a constitution. In giving the power, it does not intend to limit it to any one mode of exercising it, exclusive of all others. It must be obvious, (as has been already suggested,) that the means of carrying into effect the objects of a power may, nay, must be varied, in order to adapt themselves to the exigencies of the nation at different times.32 A mode efficacious and useful in one age, or under one posture of circumstances, may be wholly vain, or even mischievous at another time. Government presupposes the existence of a perpetual mutability in its own operations on those, who are its subjects; and a perpetual flexibility in adapting itself to their wants, their interests, their habits, their occupations, and their infirmities.33

. . . And this leads us to remark, in the next place, that in the interpretation of the constitution there is no solid objection to implied powers.37 Had the faculties of man been competent to the framing of a system of government, which would leave nothing to implication, it cannot be doubted, that the effort would have been made by the framers of our constitution. The fact, however, is otherwise. There is not in the whole of that admirable instrument a grant of powers, which does not draw after it others, not expressed, but vital to their exercise; not substantive and independent, indeed, but auxiliary and subordinate.38 There is no phrase in it, which, like the articles of confederation,39 excludes incidental and implied powers, and which requires, that every thing granted shall be expressly and minutely described. Even the tenth amendment, which was framed for the purpose of quieting the excessive jealousies, which had been excited, omits the word "expressly," (which was contained in the articles of confederation,) and declares only, that "the powers, not delegated to the United States, nor prohibited by it to the states, are reserved to the states respectively, or to the people;" thus leaving the question, whether the particular power, which may become the subject of contest, has been delegated to the one government, or prohibited to the other, to depend upon a fair construction of the whole instrument. The men, who drew and adopted this amendment, had experienced the embarrassments, resulting from the insertion of this word in the articles of confederation, and probably omitted it to avoid those embarrassments. A constitution, to contain an accurate detail of all the subdivisions, of which its great powers will admit, and of all the means, by which these may be carried into execution, would partake of the prolixity of a legal code, and could scarcely be embraced by the human mind. It would probably never be understood by the public. Its nature, therefore, requires, that only its great outlines should be marked, its important objects designated, and the minor ingredient which compose those objects, be deduced from the nature of those objects themselves. That this idea was entertained by the framers of the American constitution, is not only to be inferred from the nature of the instrument, but from the language. Why, else, were some of the limitations, found in the ninth section of the first article, introduced? It is also, in some degree, warranted, by their having omitted to use any restrictive term, which might prevent its receiving a fair and just interpretation. In considering this point, we should never forget, that it is a constitution we are expounding.

Ezra's sloppy thinking on this subject does not credit to Professor Levinson or to himself. Truly, though many seem not to grasp this, Constitutional theory requires at least the amount of rigor that thinking on health care policy does. I think more personally.

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    Rock, paper, scissors. (5.00 / 2) (#1)
    by Compound F on Fri Mar 16, 2007 at 11:09:28 PM EST
    I view the construction of the Constitution as enabling a game of "rock, paper, scissors," wherein no single strategy is capable if remaining stably dominant.  That is the brilliance (pre-Darwin, pre-evolutionary stable strategies: ESS).  Hat tip to the Founders for seeing that a collection of competing unstable stategies insures stability.

    I think that underestimates the design (5.00 / 2) (#2)
    by Big Tent Democrat on Fri Mar 16, 2007 at 11:18:29 PM EST
    It is not so much competing philosophies but dynamic circumstances that create meaning.

    The Living Constitution.


    achieving this: (none / 0) (#4)
    by Compound F on Fri Mar 16, 2007 at 11:30:28 PM EST
    . . . [A] constitution of government, founded by the people for themselves and their posterity, and for objects of the most momentous nature, for perpetual union, for the establishment of justice, for the general welfare, and for a perpetuation of the blessings of liberty, necessarily requires, that every interpretation of its powers should have a constant reference to these objects. No interpretation of the words, in which those powers are granted, can be a sound one, which narrows down their ordinary import, so as to defeat those objects. That would be to destroy the spirit, and to cramp the letter.

    is non-trivial.  the Founders decided to create 3 co-equal branches of government, with democratic input into (mainly) two of those branches.  The dominance of any strategy largely depends on the will of the people.  Each strategy, in an of itself, insufficient to dominate the landscape, e.g., as when elections happen and have consequences.  The analogy may be imperfect, but that imperfection needs greater, not less exploration.


    I agree (5.00 / 1) (#7)
    by Big Tent Democrat on Fri Mar 16, 2007 at 11:34:47 PM EST
    In what way is this an example of competing philosophies?

    Are you referencing the separation of powers? THe object of the spearation of powers is entirely different.

    IT is to check the power of any branch or person.


    yes. (none / 0) (#10)
    by Compound F on Fri Mar 16, 2007 at 11:44:53 PM EST
    I was referring to the separation of powers as a game of R,P,S.  Brilliant meta-strategy.  No one wins permanently, unless powers are abrogated and arrogated.  Assuming each branch exercises "free will," it works.

    I will add, (none / 0) (#5)
    by Compound F on Fri Mar 16, 2007 at 11:32:17 PM EST
    that your "competing philosophies" of governance, I presume, are directly at the heart of the 2006 elections.

    That's democracy (none / 0) (#8)
    by Big Tent Democrat on Fri Mar 16, 2007 at 11:35:34 PM EST
    That is not where, imo, the life of the Constitution is reflected.

    The SCOTUS is where that comes from.


    are you arguing that only Scotus (none / 0) (#9)
    by Compound F on Fri Mar 16, 2007 at 11:40:25 PM EST
    embodies the ideas of the Founders?  Surely not.  No legislors, no executive?  Surely not.  I have probably missed something here.

    No (none / 0) (#11)
    by Big Tent Democrat on Fri Mar 16, 2007 at 11:59:33 PM EST
    I'm argung that the Living Constitution is articulated by the SCOTUS, who says what the law is, in the words CJ Marshall.

    Scouts, (none / 0) (#12)
    by Compound F on Sat Mar 17, 2007 at 12:11:36 AM EST
    who are preferred (by the exec) and assented to (by a peoples' body).  Scotus is not supreme.  Unless...the past six years.

    scotus. (none / 0) (#13)
    by Compound F on Sat Mar 17, 2007 at 12:12:17 AM EST
    Scotus is prone to error, (none / 0) (#14)
    by Compound F on Sat Mar 17, 2007 at 12:23:06 AM EST
    hence elective elements control to elevation their body.  No ivory tower for scotus.  On this, I'm sure there is no disagreement.

    No disagreement at all (none / 0) (#18)
    by Big Tent Democrat on Sat Mar 17, 2007 at 01:06:57 AM EST
    Not sure what your point is.

    BTD (none / 0) (#26)
    by jimakaPPJ on Sun Mar 18, 2007 at 08:58:46 AM EST
    I thought Congress said what the law is.

    The SC said if it was legal under the Constitution.

    A subtle but important difference.


    It requires more intellectual (5.00 / 1) (#19)
    by vcmvo2 on Sat Mar 17, 2007 at 01:19:05 AM EST
    rigor to discern intent in the Constitution than it does to set health-care policy, imo.

    And rewriting it is just so unnecessary. It reminds me of what happened to the King James version of the Bible when it was translated into plain english  - Ugh!

    A few points (5.00 / 1) (#23)
    by Sailor on Sat Mar 17, 2007 at 11:56:41 AM EST
    1. The Constitution was deliberately vague in order to get all the signatories to agree. This could be one of its strengths.

    2. The Constitution has been deliberately twisted by Fed judges to limit what the Constitution actually says. (See 4th Amendment- civil forfeiture, civil confinement, no knock warrants, anonymous CIs, SWAT assaults, stop and frisk, DUI check points ... etc.)

    3. I think the original Constitution is brilliant, the implementation however has gradually been to limit the freedoms espoused in it. We don't need to start over with a different constitution, we need to start over with the interpretations (precedents.)

    4. It's sheer hubris to think that one could write a better document. OTOH, the whole world and country would be better served if they'd just make me king;-)

    The benevolent despot (none / 0) (#24)
    by Big Tent Democrat on Sat Mar 17, 2007 at 12:18:41 PM EST
    Caesar thought so.

    Lucky for you the Ides of March has passed.


    As long as we're afraid to evolve it (none / 0) (#3)
    by Dadler on Fri Mar 16, 2007 at 11:27:43 PM EST
    It will remain unevolved, and we'll have idiotic debates like, say, those over the 2nd amendment, in which no one deals with the existence of the 3rd amendment (which puts the 2nd in COMPLETE context).

    The reality is, like everything else, some of the constitution could stand a lot of rewriting, some of it needs none, and some of it needs somewhere in the middle.  Claiming it needs nothing, or everything, is an extremist position if considered in the context of actual living human life.  There is no living constitution, only living people who do with it what the do.

    I utterly disagree (5.00 / 1) (#6)
    by Big Tent Democrat on Fri Mar 16, 2007 at 11:33:21 PM EST
    with this comment and believe it does not even address the argument I present.

    Rewriting the (none / 0) (#22)
    by Wile ECoyote on Sat Mar 17, 2007 at 11:14:55 AM EST
    constitution would be laborious at best.  Who (or what group) would determine what parts need rewritten?  How about if the NRA backed the group chosen to rewrite the second amendment?    I see the king of all lawsuits.  Leave well enough alone.

    What crawled up your ace? (none / 0) (#15)
    by Dadler on Sat Mar 17, 2007 at 12:30:38 AM EST
    You wrote:
    "My view is that a Living Constitution seeks to understand the original purpose of the Constitution, and its specific provisions, and discern how best to serve that purpose in the case then presented."

    So...understanding how the original purpose of the constitution best serves the original (as in unique) purposes of each case presented does not, by definition, evolve interpretations of the document?   And therefore, since the actual "living" the document does IS in its interpretation, evolve the document itself?

    And, forgive me for reducing it, but the only argument you're making (with much supporting documentation and opinion) is be overly smart and careful and thoughtful before you go changing things.  

    Now, if you want to hold up the history of the 2nd amendment right as an example of your premise, then you're leaking water and fast.
    Because faulty, f*cked up human beings make laws and interpret them.  And if they want guns in every pot for everything OTHER than state militia activities, then the actual meaning and purpose of the 2nd amendment goes out the door and the trigger-happy "interpretations" win out. You can point me to all the astute constitutional commentary and opinion on the matter you want, but as you essentially said to a blogger who dissed you on defunding, I can read the actual constitution and make up my own mind, thank you.

    That should really say (none / 0) (#16)
    by Dadler on Sat Mar 17, 2007 at 12:59:56 AM EST
    "...understanding how the original purpose of the constitution IS BEST SERVED in the original (as in unique) purposes of each case presented."

    As if that'll make it all better.  Curse on.


    I wrote (none / 0) (#17)
    by Big Tent Democrat on Sat Mar 17, 2007 at 01:05:47 AM EST
    ""My view is that a Living Constitution seeks to understand the original purpose of the Constitution, and its specific provisions, and discern how best to serve that purpose in the case then presented."

    You wrote something not related to my statement.

    Try again dude. Curse on? When did I curse?


    you didn't (none / 0) (#20)
    by cpinva on Sat Mar 17, 2007 at 02:18:09 AM EST
    i haven't a clue what dadler's going on about.

    i have always felt that the concept of "original intent" was a fraud. if the author's never intended any changes, there'd be no mechanism for amending it. they were smart enough to recognize that times and circumstances change, they wrote it with that in mind.

    the trick, as you note, is determing what overarching principle was being asserted, and applying it to the present case. the "living constitution", evolving, through case law, with the changes in society and technology.

    without disparaging the idea, per se... (none / 0) (#21)
    by Deconstructionist on Sat Mar 17, 2007 at 08:43:44 AM EST
     ...a guy who writes:

    "I could totally write..."

    "I could wtite a way clearer..."

    and this gem of a sentence:

    "I have 250 more years of historical knowledge and contemporary context with which to ensure it's applicable to modern times."

      You know, he's like totally not a dude I'd say was way qualified to be on the drafting committee.

    justice forgotten (none / 0) (#25)
    by zaitztheunconvicted on Sat Mar 17, 2007 at 08:35:34 PM EST
    How about the following constitutional amendment:
    "That in any case or controversy before the courts, and in any question of the constitutionality of any law, statute or regulation, that at times it shall be sufficient
    for the justice to say the law does or permits manifest injustice and is not constitutional for that reason."

    To me, it seems that it should not be an offense to good constitutioal interpretation to say,

    "This provision, this law, this statute or this regulation permits or does a manifest injustice
    and we must therefore strike it down.  That men of old tolerated it and that the legislature or Congress in question has approved it--once or many times--does not change the facts: that this does or permits a grave and manifest injustice.  The bill of rights was put in to express what experience had proven and what the common sense of the people knew to be those aspects of justice upon which the Congress might be tempted to intrude, and to prevent any future such offenses.  And the 14th amendment was made necessary by injustices being done or being permitted against African Americans or others, by aggressive or complicit state legislatures and local justice systems.  However, the bill of rights was not meant to be seen as the exclusive listing of the rights of the people, for the 10th amendment implicitly protects all other unenumerated rights.  The 10th amendment protects or should protect every man in every state from every form of state-sanctioned injustice, for no such state-sanctioned injustice can promote the general welfare and the common good.  Nor can any law be considered constitutional which does injustice.

    The fact that some men may argue with us in our declarations that certain laws are unjust or the fact that we ourselves as judges may not be unanimous in our sense of justice does not change the fact: No unjust provision can be constitutional.  Nor will we permit them, simply because the the 14th, 4th, 1st, 5th or 6th amendments do not expressly forbid them."