Friday, April 29, 2022

An Imaginative Adventure in Constitution-Making


Back in the 1970s, there was some talk (in the end, only talk) about invoking Article V to convoke a new constitutional convention. I was mildly supportive of the idea, mainly because I envisioned it as a rare opportunity to revive the participatory citizenship that had been eclipsed by the late 20th-century model of Americans as consumers rather than citizens. in fact, a new constitutional convention had no realistic chance of happening then. Nor does it now, although now (unlike then) there is increasing awareness of "how the document has helped foster a hopelessly broken government."

The author of that diagnosis, Political Scientist Beau Breslin, has recently responded to this discouraging reality with an imaginative exercise, A Constitution for the Living: Imagining How Five Generations of Americans Would Rewrite the Nation's Fundamental Law (Stanford U. Pr., 2021). The basis for Breslin's exercise is Thomas Jefferson's idiosyncratic (to my mind, completely crazy) that each generation should be free to start the constitutional process over again. One doesn't have to be a full-bore Burkean to sense the absurdity of Jefferson's position. Even so, one can also appreciate its appeal. In any case, Breslin takes Jefferson's idea and imagines what would have happened had the U.S. constitution been renegotiated and rewritten by each "generation." For Jefferson, that would have been every 19 years. Recognizing the increasing length of modern lifespans, Breslin opts for imagining new constitutional conventions in 1825, 1863, 1903, 1953, and 2022.

Obviously this is an exercise in counter-factual history. However, Breslin works hard to imagine how each constitutional rewrite might have worked out, based on what was actually happening in American society at the time - including, for example, what was being written in new or revised state constitutions in each period. so, while obviously an exercise in imaginative fantasy, Breslin's imagined constitutional renegotiations do open a window into the complexities of our constitution's adaptiveness to the dramatic changes in society.

Personally, while I have no use for Jefferson's anti-historic theory of generational independence, I do believe that times and circumstances do change and that with those changed times and circumstances comes a need for social and political change, including institutional adaptation. Breslin's book both recognizes this and show us how it might have happened (and could yet happen through our more cumbersome amendment process).

In Breslin's account, the first such imagined "convention" occurred in 1825, one year after the contested 1824 election, in which the House of Representatives elected John Quincy Adams over Andrew Jackson (who had gotten the most votes in the original election). Unsurprisingly, the convention reexamined the Electoral College. And, in a major victory for the Jacksonian Democrats, the 1825 Constitution provided for the popular election of presidential electors. In a similar vein the new document guaranteed universal white male suffrage. (Both were in fact the actual direction in which most states were tending at the time.) Bringing the federal constitution into greater harmony with most state constitutions, the imagined 1825 document relocated the Bill of Rights as the first article of the federal constitution, thus highlighting its priority. But an attempt to include a right to education was voted down. Even staunch Jacksonians "could not see their way to supporting the interests of the free common man if that meant states had to relinquish control over their own educational systems." Breslin's imagined convention's most significant change to its 1787 predecessor was one which was not reflected in American historical reality, a change in the manner of staffing the federal judiciary.

The 1863 convention occurred, of course, during the Civil War. As part of the dramatic fiction, Breslin has it relocated from Philadelphia to Boston to avoid danger from Lee's Confederate army. Not surprisingly, given the absence of representatives from the southern states and the  dominance of the radical wing of the Republican party, what this convention produced closely resembles the actual federal constitution as radically amended after the Civil War by the 13th, 14th, and 15th amendments. In fact, the three Reconstruction Amendments did actually give the U.S. a radically revised constitution, but (we all know the sad story) the federal government failed to enforce that new constitution - with calamitous consequences we are still dealign with today.

The next 50 years were defined by the rise of commercial capitalism and urban immigration, thus definitely putting behind the Jeffersonian-Jacksonian vision. As Breslin notes, "the framers of the 1863 Constitution likely would not even have recognized their own country in 1903." In actual history, of course, Theodore Roosevelt was president, and it was the Progressive Era. So unsurprisingly, women's suffrage passed at Breslin's 1903 convention, but proposals to recover for Native-Americans a degree of self-rule over Indian lands was defeated. finally, reflecting the then reigning imperial turn in American foreign policy, the convention enhanced presidential power in that are, allowing the president to "pursue strategic national interests abroad" and  to "execute all necessary and proper policies  to protect the country;'s vital global interests."

So again the imaginary 1903 convention largely condenses what actually happened. (In fact, the constitution has never really been amended to reflect either American Empire or the imperial presidency that necessarily accompanies it, but Breslin's device does reflect the de facto acceptance of almost unlimited presidential power in this area.) 

Imagined constitutional changes cannot stray too far from what actually has happened for obvious reasons. "Efforts to raze the prior Constitution altogether and take a fresh look at what a twentieth-century generation might might desire failed" at Breslin's imagined 1903 convention, "because of expediency and because of a belief that the basic architecture of the American political system still functioned reasonably well."

The 1953 iteration of this fantasy project produced a longer constitution, "and the evidence of interest group activity was obvious." Another background difference was that state constitution framing had diminished in the interim, although state constitutional amendments had "increased dramatically" in those 50 years.

Obviously, the 1953 convention reflected the enormous changes in federal and presidential power during the New Deal and two world wars. America "had been molded in FDR's image" and all "were now living in FDR's world." The 1953 convention limited presidents to two terms (in the exact language of the actual 22nd Amendment). Reflecting the increasing primacy of national identity, the convention called for unanimity among all 48 states as a requirement for ratification.

The convention's preoccupation with recent Supreme Court decisions highlights one practical problem with this thought experiment. The 1825 convention had altered the way the federal judiciary was filled. But, since that never actually happened, the court decisions that impacted American society between then and now are the same. 

All of which brings us at last to our problematic present - in the form of the constitutional convention of 2022. Breslin adapts his model to current technology and employs a cumbersome "crowdsourcing" preparation. (And, of course, C-Span covers the convention live.) But the most decisive factor was (i.e., is) "the deep divide - political and otherwise - facing the country."

Unsurprisingly, the 2022 convention is the first  since 1787 to reconsider "the basic architecture of American government." The imagined debate begins with the perennially popular, if controversial, question of term limits. The arguments on both sides are familiar and need not be repeated here. In the end, Breslin's convention limits House members to four terms and Senators to two, but (to my mind much more importantly) prohibits former lawmakers from becoming lobbyists for four years after leaving congress.

Climate change is perhaps the major issue facing the world today. Already, several state constitutions include some reference to the environment. Breslin's 2022 constitution includes a constitutional right (albeit perhaps primarily hortatory) to a clean and healthy environment.  As we all know, the problem with protecting the environment and fighting climate change is not acknowledging its desirability but taking actions that actually require a change in our current, wasteful way of life.

At this point Breslin become effectively an advocate for Sanford Levinson's constitutional reform agenda, addressing "the illegitimacy of the Senate, the inability of the people to vote that they had 'no confidence' in their President, and the absurdly difficult method for amending or reforming the constitutional document." Of course, Breslin's jeffersonian fantasy of regular constitutional conventions were a reality, Levinson's legitimate concern about the inordinate difficulty of amending the constitution would be mulch less salient!

Levinson's proposal for a parliamentary-style congressional vote of "no confidence" reflects the abysmal history of presidential impeachment and its effective irrelevance as a constitutional tool. Breslin's convention adopts "no confidence," but not Levinson's more radical suggestion of  a national recall. (Hasn't California sufficiently taught us the harm recalls can do?) Most importantly, however, at the 2022 convention, the Electoral College is finally abolished, which alone might make such an exercise a valuable one!

Thanks to the crowdsourcing technique (and reflecting our presently polarized politics) controversial cultural questions are also debated at this final convention. Neither side being willing to concede any ground on abortion and a constitutional right to privacy, the convention reflects contemporary reality by tabling the topic and never returning to it. On the other hand, obviously reflecting the apparent trajectory of public opinion (at least until recently), "marriage equality" is more successful in getting enshrined in the constitution. (This book was obviously written before the contemporary Republican party's renewed anti-gay panic.)

Gun rights, like abortion, are an area where the division between Americans is too wide and too deep, and even at a fictional convention no change is possible.

Finally, in an effort to come to terms with America's problematic past, the venerable Preamble (which my generation faithfully memorized in school) is lengthened to list all sorts of now lamented past evils.

Breslin does a very good job getting the reader to play along and imagine these various conventions. It is a salutary reminder that a more participatory process and altered institutions should not be beyond the pale of our imagination. At the same time, it illustrates how, while constitutional arrangements may complicate our political problems and make them worse) they do largely reflect our problems and divisions, thereby limiting the realistic extent of what alternatives may realistically be imagined.

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