The Contradictions of James Madison and, Therefore, of American Constitutionalism
First, I deeply appreciate being invited by the University of California, Berkeley, School of Law and the Brennan Center for Justice to comment on Professor Jill Lepore’s important paper “The Philosophy of Amendment.”[1] Second, I want to convey my special admiration for her body of work. Japan designates certain scholars—or perhaps only artisans—as “national treasures” because of the unique quality of their work. Were it in my power, I would grant Prof. Lepore that title, for I have learned so much about such a wide variety of subjects.
I don’t know whether Prof. Lepore would be pleased by my comparing her to Paul Revere, but she is issuing a timely and necessary warning about the need to think deeply about reforming our Constitution. The enemy, in this case, is not the British. Rather, it is ourselves, in our complacent unwillingness to engage with clear deficiencies of the present Constitution. She begins her essay with the extraordinary reminder that everything in the world is subject to decay, including the parchment on which the Constitution was originally written (for starters). That is true, of course, of the more abstract Constitution itself. Why should we not be concerned about its own decay and ultimate death? The structural complement to a “living Constitution” is a dying one. Perhaps we should be asking ourselves a version of the question that Justice Robert Jackson so memorably posed some seventy-five years ago: Can the Constitution, whatever may be our hopes for it at the outset, become over time a “suicide pact,”[2] at least in the absence of significant reform? Too often, if we look at other countries, significant reform has required defeat in catastrophic wars, as with Germany and Japan after World War II. We might wonder if the United States is capable of acting before a catastrophe. One cannot be confident that the answer is yes, alas.
The task, therefore, is to overcome all incentives to engage in abject denial and instead to diagnose the illness and suggest possible treatment plans. Regarding the overt topic of Prof. Lepore’s lecture, we must ask if discrete amendment, even if possible, is sufficient. Or is something considerably more drastic both necessary and proper? We need to address the desirability of a new national constitutional convention rather than rely on a flawed amendment process that relies on a far-too-distracted, campaign-finance besotted Congress to rectify our many constitutional problems. Additionally, any amendment would have to gain the approval of at least seventy-five legislative houses in thirty-eight states (assuming Nebraska, with its unique Unicameral, is one of the states), unless Congress requires ratification by state conventions rather than legislatures.[3]
We continue to be governed by institutions largely established in 1787 that were questionable at the outset and have become more so as time has gone by. This past year, Prof. Lepore’s Harvard colleagues Steven Levitsky and Daniel Ziblatt—the authors of a previous book, How Democracies Die—published Tyranny of the Minority: Why American Democracy Reached the Breaking Point. One might read these books as saying that the death of American democracy is imminent. These are not happy days for those considering the future of what Tocqueville boldly (and perhaps inaccurately) called “democracy in America.”[4]
To be sure, we have seen a few important structural changes since 1787 through the amendment process. The Twelfth Amendment eliminated the failure to separate the election of president and vice president, which brought us close to civil war in 1800. And, even before that, it gave us the anomaly, to be polite, of Thomas Jefferson serving as John Adams’s vice president. The Senate is now elected instead of appointed by state legislatures, thanks to the Seventeenth Amendment. One should certainly applaud these changes.
But most of us, I dare say, lament that the Twelfth Amendment did nothing to eliminate the Electoral College, which continues to afflict our polity, in spite of the fact that every poll since 1944 has demonstrated majority disapproval of the mechanism.[5] It survives largely because two White supremacist senators in 1969 were successful in organizing a filibuster against a proposed amendment that had received the necessary two-thirds support from the House.[6]
However, when James Madison in Federalist 62 described the Senate as an evil,[7] he was not alluding to state appointment of senators. Instead, he was referring to the fact that those who wanted to achieve the success of replacing the Articles of Confederation with a new, and presumably more workable, constitution had to submit to the extortionate demand of Delaware and other small states for equal representation in the Senate. Too often we refer to this decision as the “Great Compromise.” [8] Madison correctly concluded that it was a defeat, but he believed that the fledgling United States simply had to get a new constitution.[9] It might have been a compromise, but there was nothing “great” about it, unless we are also willing to describe as “great” the various compromises with enslavers that were also necessary to gain a document that would be ratified in the enslaving states. I assume that no one is willing to describe them as “great”; the same should be true of the compromise that gave us the United States Senate.
The fact that the electorate now chooses their senators is hardly sufficient to save the Senate’s legitimacy in a country that professes to believe in the equality of all citizens and the principle of “one person/one vote.”[10] As Chief Justice Warren recognized in his opinion striking down “little federalisms” in American state government, the only rationale for not applying the same logic to the Senate is the fact that equal voting power is written into the Constitution and impervious to change.[11] But the former Governor of California could scarcely have believed that giving equal voting power to Wyoming and California—or Vermont and Texas—is truly defensible. It is not.
There is also the fact that Article V entrenches this parody of equal voting power by making it nearly impossible to amend the Constitution at all, as a general matter and with regard to the Senate itself.[12] It would take the almost inconceivable unanimous consent of all the states for an amendment to achieve a more proportional distribution of voting power in the Senate. I am fond of quoting what I call “Roche’s dictum,” which I heard Prof. John P. Roche utter at an American Political Science Association Convention sometime in the 1960s. “Power corrupts,” he said, “and the prospect of losing power corrupts absolutely.”[13] It is all too easy to demonstrate the accuracy of Roche’s quote. One need only think of a variety of given individuals faced with loss of power who will do whatever they can to hang on to it. This includes, alas, Supreme Court justices who take advantage of the life tenure that the Constitution is presumed to award them and, as we are learning in the summer of 2024, incumbent presidents.[14] But one must also be attentive to institutional dysfunction that generates among its members an inability to envision even the possibility of reforming institutions that no longer serve a useful purpose.
One state (Nebraska) and one country (New Zealand) eliminated their senates through popular vote. Many states, including California and Texas, and the United States as a whole are far too big to be governed by a single legislative chamber. So, it is not bicameralism—i.e., the notion that polities are better served by two separate legislative bodies rather than one—that I object to. Rather, I object to the form of bicameralism we suffer at the national level in the United States. I have described the U.S. Senate as a bizarre “affirmative action” program for the residents of small states.[15] Those who benefit tend to be disproportionately White and Christian. They also tend to reside in rural areas and fear losing the power they traditionally hold within the United States. They certainly do not feel any great affinity for the increasing racial, religious, and ethnic diversity in urban areas and states most Americans live. There are many factors contributing to the contemporary polarization of politics in the United States and the widespread loss of confidence they might ever have had in Congress. But surely one of them lies in the ominous decision made in 1787 to allocate voting power equally.
When Jesse Ventura was Governor of Minnesota, he very sensibly advocated that Minnesota emulate the example set by Nebraska and establish what that state proudly calls its Unicameral: a single body that constitutes the legislative branch of that state. But Ventura was unsuccessful in gaining a serious hearing for his proposal. The reason was simple: unlike Nebraska, the Minnesota Constitution offers no opportunity for “direct democracy” by which the voters of Minnesota can take the decision away from the state senate (whose approval is required for any proposed constitutional amendment). Nor is Minnesota one of those fourteen states that requires its electorate to vote at stated intervals on whether to call a new state constitutional convention. I very much wish that the Framers in 1787 had been as enlightened as those who framed the 1784 New Hampshire Constitution, which did take pains to allow the demos to play an active role in constitutional reform by voting for new constitutional conventions. To call only for amendment as set out in Article V, as a practical matter, is just to accept the institutional biases hardwired into the Constitution. If the nation were like California, then one could instead call for a popular initiative and referendum that would allow “We the People” to address deficiencies and correct them. But, of course, we lack that option.
Perhaps the most important aspect of Prof. Lepore’s lecture is her emphasis on the frequency of state constitutional conventions (more than 230) throughout history, at least some of which were triggered by popular vote.[16] There is much to learn by looking at American state constitutions. Wrestling with some of their specific features, including direct democracy or the possibility (and reality) of new constitutional conventions, forces us to wrestle with what we mean by democracy more generally.
Winston Churchill famously commented that “democracy is the worst form of Government except for all those other forms that have been tried from time to time.”[17] It is usually quoted as a conversation stopper. But Churchill’s aphorism patently ignores the fact that many forms of government are labeled “democratic” and that we are often arguing about which of those forms might be best for a particular country at a particular time. One should compare their various strengths and weaknesses and register preferences for one over the other. After all, British democracy is associated with parliamentary sovereignty, the placement of almost all practical political power in the House of Commons.[18] The American system, in contrast, is built on an almost Byzantine theory of separated powers, what Americans like to call “checks and balances.”[19] In both theory and practice, it is remarkably different from that of Great Britain.
A singular definition of democracy does not emerge if one looks more broadly at the array of possibilities, even within “the West”—with which most readers of this Essay are likely to identify. Three of the four Scandinavian countries, for example, continue to have monarchs and established churches. Yet no one, presumably, would denounce Norway, Denmark, or Sweden as “undemocratic.” The awful truth is that Americans spend all too little time analyzing what “democracy” can and should mean in the twenty-first century.
I devoted a book to describing our Constitution as “undemocratic.”[20] I assume this is basically a self-evident truth for anyone who associates the concept with vibrant majority rule, or even, as suggested by Chief Justice Warren, the “fair and effective representation” of the various groups that constitute the modern United States.[21] There are many explanations for the peculiar character of our foundational document. Some of them, as already indicated, have to do with responses to what the Framers called the political “exigencies”[22] of the moment, particularly enslavement and small states’ desires for equality in the Senate. Another is the consequence not of the Constitution itself, but of what political scientists call “path dependence.”[23] Path dependence describes how decisions made at time T—which might then have made perfectly good sense—become locked into a collective consciousness and ways of doing things, even at T+1 or 10, when they are no longer helpful. An especially important example is the American fixation on electing members of the House of Representatives through single-member districts rather than adopting some form of proportional representation, as used by most countries throughout the world. The reason has nothing to do with the Constitution. Rather, Congress commanded in 1842, as it had every right to, that representatives no longer be elected in state-wide elections but, instead, in single-member districts. This was in effect reaffirmed by Congress in 1969.[24] Both decisions arguably made sense at the time, given certain political realities. But the overall consequence in the twenty-first century is little less than disastrous if one is truly interested in “democracy.” Among other things, it makes possible the pernicious practice of partisan gerrymandering, which the Supreme Court has pronounced itself helpless to respond to. This could be changed through ordinary legislation; an amendment is unnecessary. But, given Roche’s dictum, it is inconceivable that current members of the House would vote to destabilize the political system that put them and their party into power. Only a new constitutional convention, outside of the control of existing political elites, could provide this salutary change.
But especially relevant to our present debate is the general suspicion, if not disdain, that those in Philadelphia had for the very idea of democracy, however defined. Elbridge Gerry, at the Philadelphia Convention, described the people as “dupes” and the danger facing the United States in 1787 as too much democracy.[25] I suspect there are many Americans today who agree with Gerry. Furthermore, I think that the extent to which we agree or disagree will affect our response to Prof. Lepore’s own entreaties and, even more so, my own plea to take the idea of a new constitutional convention seriously.
It is not enough to note the abstract desirability of change. One must also persuade people that change is possible. But one might regard the Constitution as emulating Dante’s introduction to The Inferno, whose visitors are told to “Abandon All Hope Ye Who Enter Here.” As an alternative, many people may rely on the Supreme Court to serve as a de facto “continuing constitutional convention” that will update the Constitution as necessary.[26] But this is a false hope, for a variety of reasons. In the end, most people change the subject when earnest reformers—or cranks of the kind that I sometimes consider myself to be—call for a national discussion about a new convention.
What explains this de facto complacence beyond the formal complexities of the Constitution itself as drafted in 1787? I turn to the perhaps self-consciously provocative title of my remarks: The Contradictions of James Madison and, Therefore, of American Constitutionalism. Prof. Lepore opens her paper with a quote from Representative James Madison when he introduced the set of amendments that we would later label “the Bill of Rights” in 1789. His own proposed “first amendment” would have added to the preamble the following declaration: “The people have an indubitable, unalienable, and indefeasible right to reform or change their government, whenever it be found adverse or inadequate to the purposes of the institution.”[27] I regret that Madison was unsuccessful, because it would, by definition, have placed at the very beginning of the Constitution the reminder that “reform or change” is a possibility should the status quo “be found adverse or inadequate to the purposes of the institution.”[28] These purposes were presumably set out in the preamble that announces the aspiration to create a “more perfect Union,” defined in part by its success in “establish[ing] Justice.”[29]
One might compare Madison’s words with those of Publius in Federalist 1, published in 1787. Readers of The Federalist were told that they were engaged in a world-historical experiment as to whether ordinary Americans—or at least those minority of Americans who were viewed as entitled to participate in political decision-making—could engage in “reflection and choice” as to how they wished to be governed.[30] One might, of course, note that the Americans referred to by Publius as participating in such vital decision-making comprised a small minority of those actually living in the new country. But at the same time, one can recognize the validity of Akhil Reed Amar’s insistence that, whatever its obvious defects, the process of ratification, through elected delegates, constituted the most democratic election in the history of the world up to that time.[31]
In any event, consider in this context my favorite single paragraph in The Federalist, penned by Madison at the conclusion of No. 14:
Is it not the glory of the people of America, that, whilst they have paid a decent regard to the opinions of former times and other nations, they have not suffered a blind veneration for antiquity, for custom, or for names, to overrule the suggestions of their own good sense, the knowledge of their own situation, and the lessons of their own experience?[32]
One might summarize this as saying that to be American is to manifest a capacity to think for oneself and then act audaciously. After all, Madison exclaims, “They accomplished a revolution which has no parallel in the annals of human society [and] reared the fabrics of governments which have no model on the face of the globe.”[33] But all importantly, “it is incumbent on their successors to improve and perpetuate” what had only begun.[34] The Constitution is a work in progress; the task of “improve[ment]” is never-ending. The passage of time will inevitably teach new “lessons of experience,” which will require updating. One might think that Madison would be an adherent of a living Constitution that included, say, frequent amendment (as is the case in all American states and almost all foreign countries). Alas, that is not the case.
Madison also penned Federalists 49 and 63, whose baleful influence affect us still. Whether they betray a deep conflict within his own political persona, or simply a politician’s calculation of what needed to be said at a particular moment to gain necessary popular support, may be irrelevant. For under any theory there is a radical tension between the audacious Madison of No. 14—or for that matter, the defender in Federalist 40 of the illegal proceedings in Philadelphia, which responded to the political crisis generated by the inadequacies of the Articles of Confederation—and the far more institutionally conservative Madison of these later essays.
In No. 49, Madison offers a powerful critique of his erstwhile friend Thomas Jefferson. It contradicts the magnificence of Federalist 14 by introducing the notion of constitutional veneration into the lexicon and practice of American national constitutionalism.[35] (Note carefully the adjective in front of “constitutionalism.” “Veneration” is not a notion—or a practice—illustrated in the history of American state constitutionalism. It is unique to the national Constitution.) In Federalist 49, Madison emphasizes how exceptional 1787 was. His argument that the occurrences in Philadelphia were “strange and even miraculous” seems similar to that of a devoted astrologer who emphasizes a once-in-a-millennium conjunction of the planets. Interestingly enough, Madison veers away from inspirational parts of the preamble, including establishing justice, to focus instead on “the public tranquility.” That latter aspiration would be “disturb[ed] by interesting too strongly the public passions” that would inevitably be stirred up by “a frequent reference of constitutional questions to the decision of the whole society.”[36] Americans should congratulate themselves on replacing what Publius/Hamilton called in No. 15 the “imbecil[ic]” system of government established by the Articles of Confederation.[37] But we should always remember that such “experiments [in constitutional revision] are of too ticklish a nature to be unnecessarily multiplied.”[38] We were, apparently, almost incredibly lucky in 1787–1788 to achieve a new Constitution, and we should be under no illusion that such a happy experience could ever be repeated.
But wait, as one might say in a TV ad, there’s more. For in Federalist 63 Madison expressed great pleasure in the fact that “we the people” have no role in the ultimate process of decision-making within the national polity.[39] We are a representative democracy; all rule, without exception, is mediated through those deemed to be our “representatives.”[40] He rejoices in the fact that the Constitution, though ostensibly “ordained” by “We the People,” nonetheless provides for “THE TOTAL EXCLUSION OF THE PEOPLE, IN THEIR COLLECTIVE CAPACITY” from any share in making decisions.[41] Madison capitalizes these words to emphasize their importance.[42] Apparently, we should venerate a political system that excludes us from the process of self-governance and instead embrace exclusive reliance on “representatives.”
What we are talking about is the degree to which we today have faith in a democratic enterprise that relies on what is sometimes called the “wisdom of crowds.” My first book was titled Constitutional Faith.[43] It has become ever clearer to me that there is a basic tension between “veneration of” the Constitution and a “democratic faith” that we as collective people are capable of choosing how we are governed. As I have discovered in frequent conversation with friends, family, and colleagues, almost everyone is terrified by the prospect of what is usually called a “runaway” convention that would reveal the presumed worst possibilities among our fellow citizens. Everyone seems to assume that their ideological adversaries would inevitably control a convention and use their power to establish a chamber of constitutional horrors.
Whether or not we treat our political adversaries as Schmittian enemies,[44] they are certainly not “friends” for whom we have much genuine respect. But I would argue that we cannot cabin our distrust of popular government only to a new convention. The common negative response to advocates of a new convention tells us important things about the overall health of our ostensibly democratic system, going well beyond the particular issue of support or opposition to a new convention.
It is not the case that no good objections exist. In the book Fault Lines in the Constitution, written with my wife, Cynthia Levinson, the penultimate chapter is a debate between the two of us on the desirability of a new convention to amend what we both agree are deep flaws within the existing Constitution.[45] Cynthia’s altogether reasonable objections focus on the almost complete indeterminacy of the process by which a new convention would be conducted. Lawrence Lessig and I gave a seminar at Harvard Law School some years ago, where I developed an only half-kidding hypothesis that Madison and his colleagues purposely set up Article V’s convention clause as a Pandora’s box by providing no guidance at all as to how a convention would be organized.[46] For example, how would the delegates be selected? I equally oppose election and designation by state legislatures, which are the two most commonly suggested methods. The first runs an unacceptable risk of single-issue voters responding to well-financed, manipulative campaigns by their ostensible champions. The latter assures that delegates would almost be too committed to maintaining the institutional status quo or, if “reformers,” devotees of crippling the national government in favor of outmoded notions of constitutionally protected federalism and states’ rights. Thus, I favor a nationwide “citizen jury,” in which several hundred delegates would be picked at random.
Any social scientist would readily agree that a well-selected random sample is likely to be far more “representative” than those selected by our present money-saturated electoral system or by highly partisan state legislators. But selection of delegates is only one problem. How would they vote? I find it impossible to imagine any popular acceptance of the rule adopted in 1787 by which each state got one vote. Why in the world would one expect (or support) California’s acquiescence to a system whereby Wyoming or Alaska would have the same degree of influence as the forty million Americans who now live in the Golden State? Robert Natelson, the chief academic advisor to conservative advocates of a new convention, gamely insists that of course a new convention would look like the original model in all respects, being completely state-centered.[47] I respectfully suggest that only an academic completely removed from political reality could believe that any such process could be viewed as legitimate.
The Constitution slipped through the New York ratifying convention by a vote of 30-27, and the key anti-Federalist supporters were won over only by what turned out to be the false promise that there would be a second convention after ratification that would address some of the flaws they discerned.[48] Incidentally, for many of these critical delegates, their objections had far less to do with the lack of a Bill of Rights than with the organization and powers of the new national government and its “consolidationist” tendencies.[49]
Finally, even if we can imagine resolving the first two problems of delegate selection and voting rules within the convention, how would the reform proposals ultimately be ratified? Would they be subjected to the almost insurmountable hurdles of Article V and its requirement of acceptance by three-fourths of the states? Or could the convention emulate their predecessors from long ago by scrapping the existing ratification rule in favor of one more conducive to general acceptance—say, a nationwide referendum requiring three-fifths approval of all voters for ratification? From one perspective, the most important article of the 1787 Constitution is Article VII, which ruthlessly scrapped Article XIII of the Articles of Confederation that required the unanimous consent of the state legislatures of all the then-existing thirteen states in order to amend the articles.[50]
As Edmund Randolph, the Governor of Virginia who would later become the first Attorney General of the United States, told the Convention: “There are great seasons when persons with limited powers are justified in exceeding them, and a person would be contemptible not to risk it.” Alexander Hamilton agreed: “To rely on & propose any plan not adequate to these exigencies, merely because it was not clearly within our powers, would be to sacrifice the means to the end.”[51] Whatever one might think of the Framers, they were scarcely committed to a naïve version of what we might think of as “the rule of law.” To the Framers, adequately responding to “exigencies” was more important than legal formalism.[52]
In the extraordinarily important and too often ignored Federalist 40,[53] Madison denounced those with “ill-timed scruples” or “zeal for adhering to ordinary forms,” instead of responding adequately to the challenges faced by “the Framers.” But as Madison argued, we should accept the “irregularities”—which some would describe as “illegal” actions—of the delegates to the Convention for two principal reasons.[54] First, we could trust those who drafted the new Constitution; they were all “patriotic and respectable citizens” led by the most noble American, George Washington. A second reason was the submission of the constitutional text to public “approbation.”[55] Had two votes switched in New York, it is highly likely that the entire process would have failed, given the geographic and economic importance of the Empire State.[56] Neither Rhode Island nor North Carolina had ratified the Constitution by the time Washington was inaugurated on April 30, 1789.[57] But one could disregard that rejection, given the relative unimportance of those two states (which did ratify the Constitution in the coming year, even if the vote in Rhode Island was only 34-32).[58] That was not the case with New York. Popular ratification was crucial, and the process, whatever its flaws, required the assertion, sincere or not, of Hamilton in Federalist 1, that a relatively wide swath of “the people” did give it their collective approval.[59]
The reality today is that there are no people who are remotely similar in stature to George Washington, even if we take full account of the fact that the enslaver Washington was scarcely perfect himself. One can describe the most widely shared consensual belief among most Americans today as “contempt for Congress.” The most recent polls at this time (early May 2024) indicated that only an average of twenty percent “approved” of Congress, while seventy-four percent “disapproved.”[60] This is obviously far different from simply a proxy vote for political affiliation, which one might ascribe, say, to some of the votes for presidential approval. An overwhelming majority of Americans have lost faith in Congress. Unsurprisingly, a similar supermajority believes the country is headed in the wrong direction.[61] The faith in representative democracy evoked by Madison in Federalist 10, among other places, is clearly diminishing.
This accounts for the overwhelming fear across ideological lines of the “runaway convention” captured by “deplorable enemies” rather than fellow Americans who simply have different views about important issues of the day. And the explanation for those with benighted views often includes such factors as sheer ignorance[62] or being, in effect, brainwashed by the clever manipulators of social media or Fox News (though some would no doubt cite MSNBC as the cable news villain). It is, to be honest, difficult to disagree with some of these critiques. There is reason to be fearful of a convention.
But then, why do we not apply the same critique of a convention to our purportedly “democratic” elections? Why do we accord any legitimacy to elections and the winners of an obviously flawed process that requires genuine respect by electoral losers of the adverse judgments made by the majority? I assume that all readers of this essay are likely to disagree with those who believe that the 2020 election was “stolen.” But agreeing that Joe Biden won does not, alas, provide a definitive answer to the question as to why we necessarily should accord the Biden Administration the legitimacy it professes to make decisions of literally life and death importance. We may look forward to the next election and “throwing the rascals out,” but, in the meantime, we are called upon to be “good sports” and accept the legitimacy of what “the rascals” are doing in our name. But why?
What sense does it make if one fears that people in general lack the capacity for self-government that “democracy” requires, including, most obviously, intelligent selection of those who will rule in our name? I have often asked why we fear a “runaway convention” more than, say, a “runaway Congress” that unequivocally has the power to declare war, tomorrow if it so wishes, against Canada or any country in the world. Even if the President were to veto a congressional declaration of war against our neighbor to the north, it would simply require a two-third vote in each house of Congress to override it.[63] Congress could repeal social security and the Civil Rights Act of 1964 tomorrow. Given that Puerto Ricans and American Indians have birthright citizenship by congressional statutes and not through the direct application of the Fourteenth Amendment,[64] it is thinkable, at least around a seminar table, that Congress could strip Puerto Ricans and members of Indigenous Nations of their citizenship. And so on with regard to the theoretical possibilities in a “runaway Congress” operating within the powers clearly granted by the Constitution. The reason we do not worry about such possibilities is that even the most alienated among us are likely to believe that there are enough “adults” in Congress to prevent such possibilities from coming to fruition.
That is my view regarding those chosen as a citizen jury to be members of the convention I support. Perhaps I am wrong, but the point is that if we do reject any remaining semblance of what used to be called the Jeffersonian faith in the capacities of ordinary Americans to engage in “reflection and choice,” then we should recognize as well the death of the American experiment in what the Constitution calls a “Republican Form of Government.”[65] Perhaps Churchill might have some purchase after all. We really might be called upon to have a genuine conversation we have evaded for decades, about what “democracy” means and whether it is possible in a country so large and diverse as the United States. When Madison in Federalist 14 spoke of the “extended republic,” he was referring to a country of approximately four million people, most of whom were excluded from participation in governance.[66] Moreover, he almost certainly agreed with his friend Thomas Jefferson that governance would naturally fall into the hands of a “natural aristocracy” that would be deferred to by ordinary folk who in effect accepted their subordination and would be deferential to the decisions made by their betters.[67]
The United States then stretched from what is now Maine down to the southern border of Georgia and westward to the east bank of the Mississippi River. No one at the time truly comprehended a polity of 336 million people[68] stretching from Maine to Hawaii and, depending on one’s theory of Puerto Rico, into the Caribbean Sea. Moreover, John Jay, in Federalist 2, assured his readers that Providence had settled the new country with “one united people––a people descended from the same ancestors, speaking the same language, professing the same religion, attached to the same principles of government, [and] very similar in their manners and customs.”[69] Jay, who would become our first Chief Justice, was a very smart man, and one doubts that he actually believed what he was writing. For starters, he had to be aware that the Constitution was quickly translated into German and Dutch, not for export abroad, but, rather, so that the roughly one-third of Pennsylvanians who spoke German could read and assess the proposed document. Similarly, the Dutch speakers about forty miles north of Manhattan (descendants of the settlers of what, after all, had been called New Amsterdam before being renamed after the Duke of York) could participate in the process of ratification.[70] But it was obviously important to selling the Constitution that people be persuaded that they really were, regardless of any appearances to the contrary, a single united people (and not peoples). Were we? And are we today? That, I believe, is the central challenge facing anyone concerned about the future of the American experiment.
Benjamin Franklin famously said that he and his colleagues had created a “republic,” but wondered if we could keep it.[71] The question remains. A famous anecdote, apocryphal or not, has Henry Kissinger asking Zhou Enlai whether he thought the French Revolution had been a success or failure. Zhou is said to have responded, “It’s too early to tell.”[72] So, has the American constitutional experiment succeeded or failed? Is it indeed too early to tell, especially as we await the results of the 2024 election and the possible return of a sociopathic demagogue to the Oval Office?
“The Philosophy of Amendment” is inextricably linked to “the philosophy of democracy.” Are we capable of taking seriously what we profess to believe constitutes us? After all, what does it mean to believe in government “by” the people as well as a possibly far more distant government “for the people” or even “of” the people? Is it not far past time for us to talk—and to act—about this?
Copyright © 2024 Sanford Levinson, W. St. John Garwood and W. St. John Garwood Centennial Chair in Law, University of Texas Law School; Professor of Government, University of Texas at Austin.
[1]. Jill Lepore, The Philosophy of Amendment, 112 Calif. L. Rev. 2249 (2024).
[2]. Terminiello v. Chicago, 337 U.S. 1, 37 (Jackson, J., dissenting) (1949).
[3]. For the process by which amendments are ratified, see U.S. Const. art. V.
[4]. This is the title of his observations based on his trip to America in 1835. Among the many available editions is the one translated by Harvey Mansfield Jr. and Delba Winthrop, Alexis de Tocqueville, Democracy in America (2002).
[5]. For the relevant polling data, see Sanford Levinson, Framed: America’s 51 Constitutions and the Crisis of Governance 188 (2012).
[6]. See Alexander Keyssar, Why do We Still Have the Electoral College? 227–42 (2022). Enough senators who supported electoral college reform ultimately gave priority to maintaining the right to filibuster.
[7]. The Federalist No. 62 (James Madison); see also Sanford Levinson, An Argument Open to All: Reading the Federalist in the 21st Century 236–37 (2015).
[8]. Richard Beeman’s index for the “Great Compromise” advises the reader to look up the “Connecticut Compromise,” given that it was put forth and ultimately won by Roger Sherman from Connecticut. See Richard Beeman, Plain, Honest Men: The Making of the American Constitution 181–87 (2009). The United States Senate, in its online presentation of its history, refers to The Great Compromise. See U.S. Senate, A Great Compromise, July 16, 1787, https://www.senate.gov/artandhistory/history/minute/Great_Compromise.htm [https://perma.cc/AG7L-KDY4].
[9]. This is the brunt of his argument in Federalist 62. The “exigencies” of our situation in 1787 required creating a new form of government, and compromises had to be made. See Levinson, supra note 7, at 236–37.
[10]. See, e.g., Reynolds v. Sims, 377 U.S. 533 (1964).
[11]. See id. at 572–77.
[12]. “The Congress, whenever two thirds of both houses shall deem it necessary, shall propose amendments to this Constitution, or, on the application of the legislatures of two thirds of the several states, shall call a convention for proposing amendments, . . . , provided . . . that no state, without its consent, shall be deprived of its equal suffrage in the Senate.” U.S. Const. art. V.
[13]. Alas, I have never found “Roche’s dictum” in print, save for my own use of it, but I would swear under oath that I heard him state it!
[14]. I am in what is quite likely the minority of academic constitutional lawyers who believe that the Constitution does not necessarily require lifetime appointment to the Supreme Court. So, Congress could in fact impose age or term limits should it wish to do so. See Sanford Levinson, Life Tenure and the Supreme Court: What is to Be Done? in Paul Carrington and Roger C. Cramton, Reforming the Court: Term Limits for Supreme Court Justices 375 (2005).
[15]. “Affirmative action” in this context is a weighted advantage given to a select group of individuals, in this case residents of small states. As with other forms of affirmative action, it represents a deviation from “strict equality,” in which we ignore specific attributes and instead rely only on the fact that, say, one is a U.S. citizen. From my perspective, legacy preferences or athletic preferences are distinct forms of affirmative action, similar to what we more often think of as “affirmative action,” some of which I strongly support.
[16]. See the indispensable study by John Dinan, America’s State Constitutional Tradition (2009).
[17]. See Churchill By Himself: The Definitive Collection of Quotations 574 (Richard Langworth ed. 2009). See also Int’l Churchill Soc., https://winstonchurchill.org/resources/quotes/the-worst-form-of-government/ [https://perma.cc/R2BP-VFC4].
[18]. Such a notion of sovereignty has been challenged more recently by the use of seemingly authoritative popular referenda, as with Brexit. Though full treatment of this issue is beyond the scope of this Essay.
[19]. See Levinson, supra note 7, at 191–97 (discussing Federalist 51).
[20]. See Sanford Levinson, Our Undemocratic Constitution (2006).
[21]. Reynolds v. Sims, 377 U.S. 533, 565 (1964).
[22]. See, e.g., The Federalist No. 62 (James Madison). (Madison defending the “evil” of equal representation in the Senate because of the necessity of responding to the “exigencies” facing the United). See also his argument in The Federalist No. 40, Levinson, supra note 7, at 149–54, defending the extraordinary actions of the delegates at the Constitutional Convention with regard both to their mandate from Congress and the procedures for amendment set out in Article XIII of the Articles of Ratification.
[23]. See Paul Pierson, Power and Path Dependence, in Advances in Comparative-Historical Analysis 123 (James Mahoney & Kathleen Thelen, eds., 2015).
[24]. See Jay K. Dow, Electing the House: The Adoption and Performance of the U.S. Single-Member District Electoral System 8–9 (2017).
[25]. See Richard Beeman, Plain, Honest Men: The Making of the American Constitution 114 (2009) (“[T]he people . . . are the dupes of pretended patriots.”).
[26]. See, e.g., Woodrow Wilson, quoted in Edward S. Corwin, The Constitution and What it Means Today 5 (1974). See also Leonard Levy, Original Intent and the Framers’ Constitution 351 (1988).
[27]. 1 Annals of Cong. 451 (1789) (Joseph Gales ed., 1834); see also Lepore, supra note 1.
[28]. 1 Annals of Cong. 451 (1789) (Joseph Gales ed., 1834); see also Lepore, supra note 1.
[29]. U.S. Const. pmbl.
[30]. See The Federalist No. 1 (Alexander Hamilton); Levinson, supra note 7, at 9–12.
[31]. See Akhil Reed Amar, America's Constitution: A Biography 5–10 (2005); Akhil Reed Amar, The Words That Made Us: America's Constitutional Conversation, 1760–1840 225–27 (2021).
[32]. See The Federalist No. 14 (James Madison); Levinson, supra note 7, at 52–54. All further citations in this paragraph can be found here as well.
[33]. See The Federalist No. 14 (James Madison).
[34]. Id.
[35]. Sanford Levinson, ‘Veneration’ and Constitutional Change: James Madison Confronts the Possibility of Constitutional Amendment 21 Tex. Tech. L. Rev. 2443, 2451 (1990).
[36]. See The Federalist No. 49 (James Madison).
[37]. See The Federalist No. 15 (Alexander Hamilton).
[38]. See The Federalist No. 49 (James Madison).
[39]. See The Federalist No. 63 (James Madison).
[40]. Id.
[41]. Id.
[42]. Id.
[43]. See Sanford Levinson, Constitutional Faith (1988).
[44]. See generally Carl Schmitt, The Concept of the Political (1929) for the canonical argument that politics ultimately reduces to a conflict between “friends” and “enemies.” Schmitt was, for a time, an important apologist for the Nazi takeover in Germany in 1933 and was barred, after the War, from returning to any position in the German academy because of his refusal to formally recant his previous views and actions. That has not prevented his work from continuing to be read and argued about, for the unfortunate fact is that he was an incisive legal theorist whose arguments cannot easily be dismissed. See generally Sanford Levinson, The brooding omnipresence of Carl Schmitt in contemporary jurisprudence: Reflections on William Scheuerman’s The End of Law: Carl Schmitt in the 21st century 47 Phil & Soc. Criticism 178 (2021).
[45]. See Cynthia Levinson & Sanford Levinson, Fault Lines in the Constitution: The Framers, Their Fights, and the Flaws that Affect Us Today 236–40 (2017).
[46]. See U.S. Const. art. V.
[47]. See generally Robert G. Natelson, Founding-Era Conventions and the Meaning of the Constitution’s “Convention for Proposing Amendments”, 65 Fla. L. Rev. 615 (2013).
[48]. See Pauline Maier, Ratification: The People Debate the Constitution, 1787-1788, 345–400 (2011).
[49]. Id.
[50]. U.S. Const. art. VII.
[51]. Both of these quotations, as well as a similar statement by Virginia’s George Mason, can be found in Sanford Levinson, Framed: America's 51 Constitutions and the Crisis of Governance 25 (2012).
[52]. See The Federalist No. 40 (James Madison).
[53]. See id.; Levinson, supra note 7, at 149–51.
[54]. Id.
[55]. Id.
[56]. See Maier, supra note 47 at 345–400.
[57]. 4.5 Info Brief: Ratification Timeline, Nat’l Const. Cntr., https://constitutioncenter.org/education/classroom-resource-library/classroom/4.5-info-brief-ratification-timeline [https://perma.cc/NV93-8SGU].
[58]. Jessie Kratz, “Rogue Island”: The last state to ratify the Constitution, Pieces of History (May 18, 2015), https://prologue.blogs.archives.gov/2015/05/18/rogue-island-the-last-state-to-ratify-the-constitution/#:~:text=In%20the%20House%2C%20Rhode%20Island's,vote%20of%2034%20to%2032 [https://perma.cc/S4BA-2NTM].
[59]. See The Federalist No. 1 (Alexander Hamilton).
[60]. Congressional Approval, Real Clear Pol., https://www.realclearpolling.com/polls/approval/congressional-approval [https://perma.cc/JUN2-MQ4R].
[61]. Id.
[62]. See, e.g., Ilya Somin, Democracy and Political Ignorance: Why Smaller Government Is Smarter (2d ed. 2013). Somin’s is only one of a number of recent books challenging some basic presuppositions of democracy inasmuch as the concept seemingly requires informed voters genuinely committed to some conception of the public interest. See also Jason Brennan, Against Democracy (2016). An independent question is whether the actual nature of the political system, including the role played by big money and well-organized interest groups, precludes, as a practical matter, the triumph even of committed and informed voters. These important questions are beyond the scope of this comment, but they surely must be considered in any overall consideration of constitutional reform. Were we to have a new convention, for example, exactly what should the process of ratification look like, assuming one wants to escape the iron fist of the present Article V process. Popular ratification is highly appealing to most modern designers. See generally, however, Jeffrey Lenowitz, Constitutional Ratification without Reason (2022) for a persuasive critique of reliance on ratification referenda.
[63]. U.S. Const. art. I, § 7, cl. 2.
[64]. The Jones–Shafroth Act, Pub. L. 64–368, 39 Stat. 951 (1917); The Indian Citizenship Act, 43 Stat. 253 (1924).
[65]. U.S. Const. art. 4, § 4.
[66]. See The Federalist No. 14 (James Madison); How things have changed in Philadelphia since the 1787 convention, Nat'l Const. Cntr., https://constitutioncenter.org/blog/how-things-have-changed-since-1787 [https://perma.cc/Q9UG-DE84].
[67]. See Letter from Thomas Jefferson to John Adams, (Oct. 28, 1813), https://press-pubs.uchicago.edu/founders/documents/v1ch15s61.html [https://perma.cc/2QWB-97HK].
[68]. U.S. and World Population Clock, U.S. Census, https://www.census.gov/popclock/ [https://perma.cc/766C-PCVU] (U.S. population as of June 2024).
[69]. See The Federalist No. 2 (John Jay); Levinson, supra note 7, at 13–17.
[70]. Sanford Levinson, What One Can Learn from Foreign-language Translations of the U.S. Constitution, in 31 Constitutional Commentary 55–70 (2016) (discussing the German and Dutch texts of 1787 Constitution).
[71]. September 17, 1787: A Republic, If You Can Keep It, Nat'l Park Serv., https://www.nps.gov/articles/000/constitutionalconvention-september17.htm#:~:text=%2D%2DBenjamin%20Franklin's%20response%20to,a%20republic%20or%20a%20monarchy%3F%22 [https://perma.cc/6A4N-TWKT].
[72]. It has been plausibly suggested that Zhou was actually thinking of the “revolutionary” events in Paris in 1968, only four years before the encounter with Kissinger, rather than the Revolution of 1789. But, as suggested memorably by the classic ending to Who Shot Liberty Valance, when the legend conflicts with the facts, print the legend. See The infamous Zhou Enlai quote on the French Revolution that made him sound like a Zen Master or Yoda is BS derived from mistranslation, Historium, (Nov. 6, 2023), https://historum.com/t/the-infamous-zhou-enlai-quote-on-the-french-revolution-that-made-him-sound-like-a-zen-master-or-yoda-is-bs-derived-from-mistranslation.197160/ [https://perma.cc/6XTM-JT4V].
