222 years later, scholars find little to celebrate in constitution


Prof. Michael Klarman
Professors Mark Tushnet, Sanford Levinson, Michael Klarman, Alexander Keyssar, and Charles Fried

On the 222nd anniversary of the adoption of the United States Constitution at the Constitutional Convention in Philadelphia, Harvard University fulfilled its federally mandated celebration of the Constitution by convening a panel of experts to examine what aspects of the document deserve to be celebrated and what parts are deserving of our criticism. Moderated by Nancy Rosenblum, the Senator Joseph S. Clark Professor of Ethics and Chair of the Department of Government at the Harvard Faculty of Arts and Sciences, the panel featured Harvard Law School Professors Charles Fried, Michael Klarman, and Mark Tushnet, along with Kennedy School Professor Alexander Keyssar and visiting professor Sanford Levinson of the University of Texas School of Law. Professor Rosenblum recognized that the statutory requirement of recognizing the value of the Constitution may seem a bit heavy-handed, but she affirmed that it is a cause worth taking up, given the depressing statistic that more Americans can name the Three Stooges than the three branches of the federal government. But while the average American may seem to be growing more ignorant of the constitution with each passing day, the diversity and intensity of the panelists’ opinions revealed a document which has only grown more controversial with the passage of time.

Professor Fried began by pointing out the reverence the Constitution enjoys in popular culture, a mythical sort of status occupied only by importand documents that few people have read and even fewer understand, like the Bible. This reverence, he noted, is a cause for suspicion for academic experts who believe that such sentimentalism interferes with analytical rigor. Nonetheless, Fried affirmed the basis for this reverence, citing the fact that there are reasons to believe that our Constitution has “made” us in a cultural and legal sense, and that it is, as a document, written in a terse and admirable style which reflects its statesman writers. It is also unusual, said Fried, that we would have such reverence for the Constitution, when Americans generally have quite a low opinion of government. “Congress,” said Fried, “stands lower in the public esteem than even journalists.”

Professors Klarman, Keyssar, and Levinson were openly skeptical of the need to celebrate the Constitution, pointing out its ossification of absurd and discriminatory policies, its anachronistic conceptualization of government and democracy, and the chaotic and anti-democratic elements of the national government it sets forth. Professor Klarman stated that much of what the Framers enshrined in the document represents values that we should today abhor or reject. For example, the constitutional protection of slave holding and the slave trade, as well as the Framers’ aspiration of creating a distant, inaccessible national government reflect values that many today would consider un-American. Many of the document’s provisions also create binding problems that distort the shape of our government, such as the equal number of senators representing each state, the structure of the electoral college, and the “natural born” requirement of presidential qualification.

Luckily, he said, our present political reality makes the actual text of the Constitution largely irrelevant. Given the present role of the Supreme Court as the source of Constitutional law, the nation has managed to move beyond the constraints of the original text and create the modern administrative state, a federal government of vast powers, and a powerful executive with broad authority to wage war, bypass treaties, and set the national agenda. Unfortunately, the Courts have failed to protect rights except where supported by public opinion. According to Klarman, landmark cases such as Brown v. Board of Education, Griswold v. Connecticut, and decisions extending gender equality came only after the national consensus had moved well beyond the Supreme Court’s, thus making the Court more reflective than constitutive of our values.

Professor Keyssar of the Kennedy School lamented the state of voting rights under the Constitution, pointing to the explicit delegation of national voting policy to the state legislatures as an abdication which inevitably created chaos throughout our history. For instance, the winner-take-all aspect of our present electoral system is a byproduct of the pressure put on state political parties to give their favored candidates as great an advantage as possible, a fact which led even Thomas Jefferson, who originally been a strong supporter of district-level electoral voting, to abandon his principles for political gain. But while decentralized control of voting can be indicted for incentivizing irrational competition among states and provincial discrimination against the minority of choice, Professor Keyssar highlighted the overriding positive result of our multiplicitous system: the expansion of voting rights. No matter how invidious the discrimination in some districts, whether against blacks, asians, or all foreigners, there were others where expansive rights prevailed, lighting the way for broad national suffrage.

Professor Levinson joined the chorus, calling for us to cease venerating our 18th Century constitution and confront the need for reform. He qualified his criticism by praising the Preamble as a serious and relentlessly secular invitation to a serious discussion of policy. Compared to other, modern constitutions, Levinson said that our constitution has almost nothing to be admired, even if only considering the explanation of individual rights. He expressed concern that the veto, as an unqualified power to override a popular vote of Congress, creates an indefensibly anti-democratic tri-cameral system with one branch occupied by a single, unfettered individual. He also said that the process established by Article V for amendment of the Constitution has made it, as a practical matter, impossible to achieve any meaningful reform. “To say that decisions made in 1787 should bind us today because those decisions were made by great men,” he observed, “is like saying that we should be bound to the structure of the U.N. Security Counsel because the political needs of Stalin and Churchill were part of the logic of its formation.”

Despite the virulent criticism, the defense of the Constitution was not entirely abandoned. Professor Tushnet took on the role, though with some admitted awkwardness, by pointing out that most of the Constitution’s structural and textual deficiencies have either become irrelevant, overruled, or could potentially be worked around if they really presented a challenge to our social values. He pointed to the functional mechanism of changing the composition of the Supreme Court by controlling the presidency as the central means of actualizing societal values in the face of an ossified constitution. Although this mechanism appears to be impotent to alter structural elements like the shape of the electoral college or the composition of the Senate, Tushnet expressed support for bypassing these difficulties with plans such as the national popular vote initiative to change the Electoral College through state action and the use of the House of Representatives’ rules to require any law it votes upon to first receive support from Senators representing a majority of the national population. In reply to the criticisms of the Senate, Professor Fried pointed out that the notion of the Senate being “self-evidently absurd” rests on a democratic myth which is not substantiated by the text of the Constitution itself, which vests in states the power to act as decentralized governmental entities outside the national political sphere.