Our Broken Constitution

Our Broken Constitution

Everyone agrees that government isn’t working. Are the founders to blame?
By Jeffrey Toobin
The New Yorker / December 9, 2013

Toobin is a smart guy. This is an interesting article. Below are several selections that stood out as I read it.

However, there are several glaring omission in his analysis. Nothing is mentioned of the role artificial legal entities (i.e corporations) and money being defined as free speech — both the result of U.S. Supreme Court decisions — have contributed to government “brokenness,” nor the national Move to Amend movement.


Sanford Levinson, professor of law, University of Texas and visiting professor, Harvard Law School: “The Constitution [places] almost insurmountable barriers in the way of any acceptable notion of democracy.”
“[T]he constitution is both insufficiently democratic, in a country that professes to believe in democracy, and significantly dysfunctional, in terms of the quality of government that we receive.”


In creating the national legislature, the delegates to the Constitutional Convention had to address the issue of slavery. “The Southern states wanted them to be included in the calculation of the over-all population, in order to boost the region’s representation in the House. The North thought that the slaves should not count at all. In a way, the negotiated solution reflected the shameful reality, that slaves in the United States were judged less than fully human. The standoff led to a notorious compromise: for purposes of apportioning seats in the House, each slave would count as three-fifths of a person.”


“The process that produced the Senate in understandable,” Sanford Levinson said, “but the end result is indefensible.” The distortion created by small states having and equal number of senators has dramatically worsened over the centuries.


Mark Levin of the Landmark Legal Foundation has proposed a series of “Liberty Amendments.” Among them is a Constitutional Amendment that would allow three-fifths of the states to overrule any federal legislation.

Steven Calabresi, a professor of law at Northwestern University and a co-founder of the Federalist Society: “I would also allow Congress, by a two-thirds vote of both houses, to override Supreme Court decisions in the same way in which it can override Presidential vetoes.”

Randy Barnett, a professor at Georgetown University Law Center, created a “Bill of Federalism.” Among them is a Constitutional Amendment that would allow “half of the states (provided that they represent half of the national population) to rescind any federal law.”


Stanley Levinson: “…I do think the republican form of government imagined by Madison and his friends was extraordinarily fearful of any kind of rule by the people. They really didn’t have any confidence in citizens. But what Randy [Barnett] finds himself defending is a veto by small, basically rural states, who ought not be subjected to the majority rule by people who live in cities. This is one of the great American fault lines.”


The Constitution may be amended, but the process is arduous. According to Article V, any amendment must receive the endorsement of two-thirds of the House and Senate and three-quarters of the state legislatures. Article V also limits any change in the makeup of the Senate.

To Levinson, the difficulty of the amendment process is one of the document’s critical defects. ‘You have a situation where legislators representing less than one-tenth of the population of the country can stop any amendment,’ he said. ‘That’s completely undemocratic.’”


For partisans on the left and the right, it’s tempting to see constitutional amendments as shortcuts to political gain. But the difficulty of the process makes that impossible. Political change leads to constitutional amendments; amendments do not lead to political change.


The Constitution can and often does change without being formally amended. This is the real lesson of the past decade or so. Levin and his Tea Party followers have shown that agitation about the Constitution can serve a conservative political agenda. In everything from television advertisements to law-review articles, they made the case that the Second Amendment protects an individual’s right to bear arms-a concept that the Supreme Court emphatically rejected in the past.


There is nothing inherently conservative about the honorable and long-held idea that citizens can understand, and even change the meaning of the Constitution. Liberals, despite themselves, have proved the same point. Plessy v. Ferguson (1896), which condoned racial segregation, gave way to Brown v. Board of Education (1954), which ended it. As recently as 1986, the Court dismissed the idea that the Constitution protected gay people from discrimination as, “at best, facetious.” Today, that principle is enshrined in the bedrock of constitutional law. And the Court’s decisions have accomplished most, if not all, of what the Equal Rights Amendment was supposed to do for women’s rights. Judicial appointments played a role, but more important was the demand from an engaged populace.


The compromises, misjudgments and failures of the men in Philadelphia haunt us still today…On some occasions, as with race and gender discrimination, the Constitution is renewed and improved in courtrooms; on others, as with the Senate’s recent act of self-improvement, the government finds ways to repair itself. In all events, the roots of these changes are the same. The Preamble of the Constitution says nothing about judges or politicians. It invokes what should be the true and ultimate authority in American government. We the People.


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