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Fall 2022 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 a near breakdown of government in the aftermath of the election of 1800 and then, of course, to civil war in 1861.  Both led to constitutional amendments; the latter, so-called “Reconstruction Amendments” have sometimes been referred to as a “second founding” of the American republic.   Yet the term “reconstruction” is itself ambiguous: Were it 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?  In any event, it is plausible to believe that the existing amendments to the Constitution have created a political system truly congruent with the pressing needs of the 21st century, some of them scarcely conceivable to anyone living in the mid-19th century?

Events of the past several years, including but not limited to a world-wide pandemic, the rise of ever-more-militant protest movements within the United States (and elsewhere), the (double) impeachment of a president, and what is widely viewed as an “insurrectionary” attempt to overthrow the results of the 2020 election have certainly led many to suggest that we are a n an impeachment of the President and the holding of an election that is 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.)

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.”)

Perhaps more significant than writing lone- or even co-authored books was my serving as chair in 2020-21 of an group brought together under the auspices of the journal Democracy, tasked with drafting a new constitution for the United States.  At the same time, 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.  

So the reading course will be devoted to looking 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: 9/6, 9/20, 9/27, 10/18, 11/1, 11/15.