Our (Almost) Perfect Constitution

By Farber, Daniel A. | Constitutional Commentary, Summer 1995 | Go to article overview
Save to active project

Our (Almost) Perfect Constitution


Farber, Daniel A., Constitutional Commentary


I doubt that we would write the Constitution in quite the same way if we were to undertake the task afresh. Would anyone today actually propose giving the Providence metro area the same representation in one branch of the legislature as half the West Coast? Nor do I doubt that there are details of the Constitution in need of improvement. (Like the sponsors of the symposium, I regard slavery as too obvious a failing to require discussion here). The interesting question is not whether the Constitution might not have been improved here or there. As with any human document, the answer is undoubtedly "yes."(1) But the more significant question is whether changes in the text would produce large practical benefits--or to put it another way, whether any parts of the Constitution (again putting aside slavery) have produced major social harms. On this score, I am quite skeptical.

The individual rights side of the Constitution is probably the easiest to deal with. No doubt each of us can think of individual rights that should ideally be protected in the Constitution but are not mentioned there. Still, it is hard to identify any individual rights that are truly precluded from recognition by the constitutional text. What prevents the judicial recognition of additional individual rights is usually not the text. Instead, it is the same thing that prevents their explicit incorporation into the Constitution: the lack of any strong national consensus in their favor. Liberals must be aware, for example, that the chances of getting the Supreme Court to recognize a constitutional right to welfare are just as small as getting Congress to pass such an amendment, and for roughly the same reason: most people in this country think the idea is nuts. On the other hand, if our society were really prepared to recognize such a right, Professors Michelman and Tribe pointed out some years ago how room could be found in the existing text. Thus, if there is an objection regarding the treatment of individual rights, it is not really to anything written in the Constitution, but rather to our constitutional culture.

Much the same can be said about federalism. The extensive transformation of federal-state relations over our history shows just how much leeway the current Constitution allows in this regard. The fundamental decision to encourage some forms of local autonomy seems sound, and so is the equally fundamental decision to establish a unified nation. In the past two centuries, the balance between the two has shifted as our constitutional culture has changed, but most of the important changes have been extra-textual.(2)

This brings us to the separation of powers, the area where the text is in many ways the most explicit. The fundamental decision here was to eschew a parliamentary form of government. At least since Woodrow Wilson, this decision has been roundly criticized in some quarters.

The rest of this article is only available to active members of Questia

Sign up now for a free, 1-day trial and receive full access to:

  • Questia's entire collection
  • Automatic bibliography creation
  • More helpful research tools like notes, citations, and highlights
  • Ad-free environment

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
Loading One moment ...
Project items
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

Cited article

Our (Almost) Perfect Constitution
Settings

Settings

Typeface
Text size Smaller Larger
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

While we understand printed pages are helpful to our users, this limitation is necessary to help protect our publishers' copyrighted material and prevent its unlawful distribution. We are sorry for any inconvenience.
Full screen

matching results for page

Cited passage

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

Cited passage

Welcome to the new Questia Reader

The Questia Reader has been updated to provide you with an even better online reading experience.  It is now 100% Responsive, which means you can read our books and articles on any sized device you wish.  All of your favorite tools like notes, highlights, and citations are still here, but the way you select text has been updated to be easier to use, especially on touchscreen devices.  Here's how:

1. Click or tap the first word you want to select.
2. Click or tap the last word you want to select.

OK, got it!

Thanks for trying Questia!

Please continue trying out our research tools, but please note, full functionality is available only to our active members.

Your work will be lost once you leave this Web page.

For full access in an ad-free environment, sign up now for a FREE, 1-day trial.

Already a member? Log in now.

Are you sure you want to delete this highlight?