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Fall 2021 Reading Group

Reforming the American Constitution

Prerequisites: None

Exam Type: No Exam

The main impetus for the Constitution of 1787 was the perception, spelled out in the very first paragraph of Federalist 1, that the current system established under the Articles of Confederation was not serving the nation well; by Federalist 15, it would be described as an “imbecil[ic]” system demanding (and justifying) radical transformation. The Framers of the 1787 Constitution scarcely believed they had achieved perfection, however; that is one reason for the existence of Article V, allowing amendment to the Constitution.

The radical flaws of the 1787 Constitution both led to civil war in 1861 and then served as the basis for what were viewed as the corrective changes we sometimes refer to as “the Reconstruction Amendments.” The term itself is completely ambiguous: Were they designed to “restore” a Union that had gone amiss by straying from the original plan, or, instead, to create a fundamentally different (and better) Union that was fatally compromised from the outset and thus needed transformation?

Last year’s version of the course met by Zoom, because the U.S., like the rest of world, was confronting a pandemic. But that year also saw the most important mass movements in the United States in at least a half-century, sparked by the murder of George Floyd in Minneapolis and building on the anger and organization of what has come to be called the Black Lives Matter movement, not to mention an impeachment of the President and the holding of an election that is widely viewed as a potential inflection point for the American constituitonal order.  

All of these crises and events raise a variety of important legal issues. Some of them can be viewed as “internal” to the existing constitutional order in the United States, i.e., turning on how one defines existing statutes or passages of the Constitution. What is a “High Crime and Misdemeanor” anyway? But there are also those who ask whether the system created by the 1787 Constitution, even as amended and “reconstructed,” does not have sufficiently “imbecilic” features to justify significant reform and transformation today. Would we, for example, be better off by having a process for a vote of “no confidence” in a president or even allowing, as in Wisconsin and California, the possibility of a “recall election” that could displace a president from office? Might it even be time to consider replacing “presidentialism” with a parliamentary form of government?  (One of the assignments will be a 1980 essay by Lloyd Cutler, President Carter’s counsel in the White House, titled “To Form a Government,” which adopts at least a quasi-parliamentary focus.)

As I write this description, the filibuster in the Senate is the focus of much national attention.  Some would argue, though, that the filibuster is simply the tip of the iceberg as to what is wrong, even indefensible, about the Senate and its apportionment of voting power.  And, of course, the 2020 census is the trigger for the inevitable reapportionment wars coming up, and those raise obvious issues of law, politics, and political theory.

I am not a neutral party with regard to such discussions. I published a book in 2006, Our Undemocratic Constitution, that focused on a number of structural features that could not plausibly be defended under any 21st century theory of democracy. In 2012, I published Framed: America’s 51 Constitutions and the Crisis of Governance, in which the focus was less on the undemocratic features of the Constitution and more on the sheer fact that more and more of the American public was significantly dissatisfied with the actual operation of the national government, posing the possibility of a genuine “legitimacy crisis.” My wife and I published a book in 2017, with a 2nd edition rapidly following in 2019, Fault Lines in the Constitution, ostensibly directed at teenagers, that set out the threats that, if activated, like geologic fault lines and techtonic plates, could destroy our polity and not only a great city. I have advocated a new constitutional convention as one way of addressing these problems.  (The book has been published also as a “graphic novel.”)

What is more telling, perhaps, is that for the first time in many years, there seems to be some genuine interest in the possibility of constitutional reform. One of the assignments will be a report by a bi-partisan blue-ribbon commission put together by the American Academy of Arts and Sciences to address Our Common Purpose: Reinventing American Democracy for the 21st Century. The National Constitution Center in Philadelphia has organized three groups, one “liberal,” one “conservative,” and the last “libertarian,” to offer proposed suggestions for constitutional reform, all of which will be topics for discussion.  I also chaired a group organized under the aegis of Michael Tomasky, the editor of Democracy, exploring what a constitution suitable to the 21st century might look like, and that text, too, will be assigned.  

So our project this semester will be to look at some of the suggested constitutional reforms and to debate their attractiveness. As always, I hope that at least some of Harvard remarkable cohort of LLMs might be interested in the course as well, inasmuch as they would bring a desirable comparativist sensibiliy to our discussions.  One overarching question is how important constitutional forms and structures are anyway, when compared, say, with underlying political cultures or the challenges posed, say, by economic inequality, globalization, or global warming.  

Accompanying the question of the desirability of constitutional reform, though, is the quite separate question of whether it is in fact possible, especially if one operates under the constraints of Article V of the Constitution, which requires ratification of any proposed amendments by three-quarters of the 50 states, i.e., 38 states. Theoretically, the thirteen states able to veto any proposed changes could comprise less than 5% of the total American population of approximately 340,000,000 people. Thus the last of our six sessions will be devoted entirely to this very practical problem (and the comparative question, of course, is how easy or hard it is in some other countries or any given American state to effectuate significant constitutional change).

Reading courses, of course, have no exams or extensive writing requirements. I do, however, ask that all of you submit, over the course of our time together, a single “response paper” of approximately 600-750 words to the readings assigned for the particular week of your choice. A major purpose of these papers is to provide an agenda for our discussions. That is, you should focus on whatever you regard as the most interesting aspects of the particular reading, about which you would be particularly benefit from some collective conversation.

Note: This reading group will meet on the following dates: Sept. 9, 23; Oct. 7, 21; Nov. 4, 18.