Wisconsin Law Review Online, 2015 Symposium

Symposium Articles

Is the Constitution failing? In what ways and how should we respond? Is it time to rewrite the Constitution?

On November 7, 2014, scholars from across the country met at the University of Wisconsin Law School to consider these crucial questions during a Symposium hosted by the Wisconsin Center for the Study of Liberal Democracy. Participants were invited to submit pieces on the topic, and Wisconsin Law Review is publishing the essays in its first-ever WLR Online Symposium. WLR Online is publishing the articles throughout the Spring 2015 semester, so please continue to check back for new additions.

PDF link No. 7: The Great Refusal: Liberals and Grand Constitutional Narrative

By Ken Kersch

Is it time to rewrite the Constitution? Unlike the more delimited question of whether amendments are in order, this one suggests systemic failure, foundational mal/misadjustment to core purposes or objectives, or perhaps, less desperately, a simple conviction that, under a different framework of fundamental law, we could do better. It also suggests that the Constitution as currently written is the chief barrier to achieving our most important objectives—what Larry Solum calls “constitutional fatalism.” I question this fatalism. [. . .] In a recent article in the BU Law Review, without taking the position against either the desirability or potential effectiveness of Article V amendments to remedy current constitutional deficiencies, I argued that the Constitution, as currently written, provides much greater opportunities for liberals to achieve their political objectives than many of them seem to realize—that, using Solum’s terminology, the “actual” (i.e., currently existing) and “possible” constitutions are not identical. I argued, moreover, that many of the successes of the conservatives in contemporary politics have stemmed from their enthusiasm for and talents in mobilizing constitutional arguments in the service contemporary political agendas and causes—in a concerted bid for instituting a “gestalt shift” or “constitutional reinscription.” While liberals certainly are forced to make constitutional arguments in courts, and make them on an ad hoc basis in politics, they seem uncomfortable with constitutional argument in the public sphere. Before fatalistically hoisting the banner for rewriting the Constitution, they might reflect on their singular debilities/ineptitude in this area. In this short Essay, I’d like to go beyond my BU Law Review article, which detailed the mechanisms of conservative successes in marshaling constitutional arguments in the public sphere, to reflect upon the wellsprings of liberal failures. I emphasized in the BU Law Review that conservatives have been energetic and creative not simply in advancing theories of constitutional interpretation—most famously, originalism—but in embedding those theories within compelling narrative or stories about the nature and trajectory of U.S. constitutional development, and, indeed, of the history of the country itself. Liberals have, in recent years, failed miserably in this regard, and it is worth asking why.

Ken Kersch is a Professor in the Department of Political Science at Boston College.

PDF link No. 6: Democratic Dysfunction and Missing Constitutional Essentials

By Howard Schweber

Does the U.S. Constitution need to be rewritten? That question has been asked quite a lot of late. Sanford Levinson has argued for years that the American Constitution is undemocratic and profoundly flawed in its design; of late he has declared the position that the document is a positive impediment to governance. Bruce Ackerman, Peter Shane, and others propose that the design of the Constitution has failed to protect us against concentrations of executive power, permitting the emergence of a form of American government inimical to our founding ideals. Sotirios Barber places the blame less on the formal structural provisions of the constitutional text and more on American political culture, which he finds insufficient to support a robust constitutional order. In general, what unites these critiques is that they are written in response to a state of current dysfunction in our political system, which is ascribed to inadequacies in constitutional design. But there are two distinct and different conceptions of “failure” at work in these critiques. As Mark Brandon puts it, a constitution may fail because of the breakdown of the “failure to employ basic principles . . . within a regime.” On the other hand, a constitution may be deemed a failure because it lacks constitutional essentials, fundamental features without which the claim to constitutional status is incomplete. In Giovanni Sartori’s formulation, a constitution of this kind is a “fake.” This distinction points to an important counterargument raised by Richard Hasen. Professor Hasen argues that while the diagnoses of political dysfunction may be entirely warranted, it is a mistake to attribute those problems to a failure of the constitutional system itself. [. . .] In this Essay, however, I will take up Hasen’s (and others’) challenge directly. I will argue that if we focus on the question of what constitutes constitutional “failure” solely in terms of the formally adopted text, the U.S. Constitution lacks essential elements and is therefore defective on its own terms.

Howard Schweber is a Professor of Political Science and Legal Studies, an affiliate faculty member of the Law School and Integarted Liberal Studies, and Leon Epstein Faculty Research Fellow at University of Wisconsin-Madison.

PDF link No. 5: Is it Time to Rewrite the Constitution? Fidelity to Our Imperfect Constitution

By James E. Fleming

Is it time to rewrite the Constitution? We should break this question down into two parts: (1) is it time to rewrite the Constitution by adopting particular amendments?, and (2) is it time to throw out the Constitution and write a new one by holding a constitutional convention, as Sandy Levinson has urged? A further question is to what extent does the Constitution, and our constitutional practice under it, already permit or require “rewriting” as we build out our framework of constitutional self-government over time? Despite claims by some originalists that the formal amending procedures of Article V are the exclusive legitimate means for changing the Constitution, living constitutionalists like David Strauss and Bruce Ackerman have gone so far as to argue that formal constitutional amendments are largely irrelevant to such change. Strauss argues that common law constitutional interpretation, not amendment through the formal procedures of Article V, has been our primary means for constitutional change. Ackerman argues that the six-phase higher lawmaking procedures outside Article V that he elaborates have been the primary means whereby We the People have “hammered out” such changes. To the extent that living constitutionalists like Strauss and Ackerman are right, perhaps we do not need formally to rewrite the Constitution to realize constitutional change. Perhaps we already do well enough through
“rewriting” it informally.

James E. Fleming is Professor of Law, The Honorable Frank R. Kenison Distinguished Scholar in Law, and Associate Dean for Research and Intellectual Life at Boston University School of Law.

PDF link No. 4: Two Ways to Rewrite the Constitution

By Richard S. Kay

The proposition that the Constitution needs to be rewritten begs a critical question—namely what the Constitution is. If we posit that by Constitution we mean the rules drafted by the Philadelphia Convention of 1787 as amended in accordance with Article V of those rules, the argument that many of those rules are out of date and need to be replaced is a powerful one. This inadequacy appears in the powers they grant, the powers they do not grant, some of the limitations they impose on public decisions, and some limitations they ought to impose but do not. No matter how sensible they were for the eighteenth century, changes with respect, at least, to geography, demographics, technology, and prevailing values make current problems of governance substantially different from those confronting the original enactors. And, notwithstanding the regular invocation of the Constitution as expressing the authentic will of “We the People,” every passing decade makes the existence of such a popular endorsement increasingly rhetorical. I also assume, for the sake of this Essay, that the original Constitution’s own procedures for rewriting in Article V are practically unavailable to make the changes necessary to correct these deficiencies. If we accept that the Constitution (as defined) needs to be rewritten, we must then ask how it should be rewritten. I discuss two methods in the balance of this Essay. The first is to write and adopt a new text from scratch. The second is to maintain the existing text but to reinterpret its rules so as to make it better fit with modern realities. Each of these methods, however, suffers from serious problems.

Richard S. Kay is Wallace Stevens Professor of Law at the University of Connecticut School of Law.

PDF link No. 3: Affirming (Not Rewriting) the Constitution: Higher Lawmaking as a Kind of Civic Education

By Sonu Bedi

It is clear that we live in deeply partisan and dysfunctional times. Pew Research Center shows that in the last 20 years political parties are more divided than ever. Congressional approval is at a seemingly all-time low. According to a September 2014 Gallup Poll, only 14 percent of the American public expressed approval of what Congress is doing. A recent symposium at Boston University discussed the current crisis as “America’s Political Dysfunction.” The usual scholarly response is that it is time to change, rewrite, or even replace the Constitution. For instance, Sanford Levinson argues that we must amend what he calls the “Constitution of Settlement,” those structural provisions that govern voting, representation, and separation of powers. This Essay begins from the opposite perspective. Rather than focusing on changing or rewriting the Constitution, perhaps it is time to focus on affirming it. In doing so, I suggest one way we can use Article V to do just that, proposing a possible 28th Amendment to the United States Constitution.

Sonu Bedi is an Associate Professor in the Department of Government at Dartmouth College.

PDF link No. 2: Against Very Entrenched Constitutions

By Keith E. Whittington

In this Essay, I simply want to offer some considerations on the process of constitutional change, with particular consideration of the problem of constitutional entrenchment. Most constitutions are understood to be supreme law within their particular legal systems, but they vary as to how entrenched they are against revision and change. Although constitutions should be resistant to very easy change, we might hesitate to endorse an approach to constitutionalism that seeks to deeply entrench constitutional provisions against future reconsideration.

Keith E. Whittington is William Nelson Cromwell Professor of Politics at Princeton University and director of graduate studies in the Department of Politics.

PDF link No. 1: A Case for the Electoral College and for its Faithless Elector

By Stephen M. Sheppard

Every four years, the cry goes up to destroy the Electoral College. That cry is especially loud in years when a candidate is elected president who receives a minority of the votes. The election of a “minority president” happened with the election of 2000, but it had happened before. The Electoral College has elected three presidents whom a majority of the voters voted against: Rutherford B. Hayes in 1876, Benjamin Harrison in 1888, and George W. Bush in 2000. (A fourth president was also elected with a minority of the popular vote—John Quincy Adams in 1824—though that election was by the House of Representatives, the Electoral College not having produced a majority of electors.) Against these recurrent cries are occasional voices of dissent, arguing for one reason or another that majority rule is not the highest value of a republic. So does this Essay, arguing to keep the Electoral College, even were the rest of the Constitution subject to wholesale revision.

Stephen M. Sheppard is Dean and Charles E. Cantú Distinguished Professor of Law at St. Mary’s University School of Law.