Unsettling the Settled: Challenging the Great and Not-So-Great Compromises in the Constitution

Article excerpt

Unsettling the Settled: Challenging the Great and Not-So-Great Compromises in the Constitution FRAMED: AMERICA'S 51 CONSTITUTIONS AND THE CRISIS OF GOVERNANCE. By Sanford Levinson. New York, New York: Oxford University Press, 2012. 448 pages. $29.95.

Sandy Levinson has, once again, written an extremely interesting and provocative book. It follows rather directly from his 2006 Our Undemocratic Constitution: Where the Constitution Goes Wrong (And How We the People Can Correct It),1 continuing his "loving criticism"2 of the American federal Constitution. Levinson's overall thesis is that the United States Constitution was framed in an atmosphere of national crisis, resulting in a number of compromises as to governmental structures that were understandable at the time but which may have become dysfunctional and in need of change after several centuries of operation.3 He points to the tremendous growth of the American territory and population, together with the unanticipated rise of political parties, as providing a partial explanation for the current "crisis in governance" that he describes in the book.4 He contends that we are trapped, or "framed," by the view that federal governmental structures that are entrenched in the Constitution cannot (and should not) be changed.5 He asks "whether fears that made sense in 1787 need control us today."6

Levinson reviews the "crisis in governance" at both the national and state levels. He describes the "gridlock" in Washington, D.C., in areas such as major policy initiatives, approval of judicial nominations, ratification of treaties, etc.7 Further, he reminds us of the dysfunction and possible "ungovernability" of states like California.8 He acknowledges that not all problems arise from the provisions of the formal federal and state constitutions themselves, but contends that the "settled" provisions of these constitutions may, in fact, be the root of a number of these problems.9

This book, as Professor Levinson proudly notes, is unusual for several reasons. First, its focus is on the provisions of the federal Constitution that are "settled" and therefore not subject to academic debate or analysis, or to judicial interpretation and litigation.10 Almost the entire focus of American constitutional law, in both political science and law, is on the great questions of interpretation of the Constitution, with very little attention to its clear provisions, such as the date on which the President will be inaugurated. Levinson refers to these "settled" (and, for the most part, unquestioned and accepted) provisions as the "Constitution of Settlement."11 By contrast, he refers to the open-textured provisions of the Constitution, subject to scholarly debate and judicial interpretation, as the "Constitution of Conversation."12 He breaks with almost all American constitutional law scholarship by only considering the former:

This book is far more concerned with analogues to the Inauguration Day Clause than to the Equal Protection Clause. Though their meaning is indisputable, there is nothing trivial about such clauses. In fact, they may better explain the failures of our political system and fears about governability than the "magnificent generalities" explain its successes. . . .

. . . .

. . . Indeed, this book is predicated on the proposition that almost all of the Constitution of Settlement is very much worth talking about by anyone interested in the practicalities of American government[.] However, the nature of the discourse about the Constitution of Settlement is quite different from that generated by the Constitution of Conversation. The latter involves constitutional meaning; the former involves the wisdom of clear constitutional commands.13

Secondly, Professor Levinson includes in his analysis recurring references to the constitutions of the fifty American states. Today, most "constitutional law" study and scholarship retains an exclusive focus on the federal Constitution. …