The Whole Thing

By Tushnet, Mark V. | Constitutional Commentary, Summer 1995 | Go to article overview

The Whole Thing


Tushnet, Mark V., Constitutional Commentary


The question seems to me badly posed, for two reasons. It assumes that constitutional provisions "are" something-or-other, which can be laid against the metric by which we measure stupidity. But, as that allusion to United States v. Butler suggests, it is no longer clear to many of us that constitutional provisions have such a quality.

Consider for example someone who believes that the metric for stupidity is defined by the degree to which a policy advances the interests of some particular favored group. Perhaps at one time the First Amendment as then interpreted advanced those interests, because the major threats to the political program favored by that group came from government agents. The First Amendment was at that time not a stupid provision.

As time passed, two things happened. (a) The group's political program changed, so that now the main threats come from non-governmental actors. Even if nothign else occurs, the First Amendment, now less important to the group than before, is "more stupid" than it used to be. Perhaps, though, it does not cross some threshold of stupidity if it is merely less important.

(b) The prevailing interpretation of the First Amendment changed, so that now it provides greater protection for the group's political adversaries than it did earlier. Now the First Amendment really might be the Constitution's most stupid provision, depending on how dramatic the changes in interpretation are.

Is that the most helpful way to describe what has happened, though? I can certainly imagine someone taking the position that the First Amendment, properly interpreted, is not stupid at all. For such a person, "the First Amendment" is just fine; the problems arise solely because it has been badly interpreted.

In short, to identify any provision as stupid requires that one have a fairly strong theory of interpretation and interpretive error. It is not clear that such a theory is available.

Second, and for me more important, trying to locate a single provision as the most stupid may be misguided. At least I would like the opportunity to answer along these lines: "Most of Article I, much of Article II, a fair chunk of Article III, nearly all of Article VI, and many of the Amendments." It has occurred to me, though, that that answer is equivalent to: "Article V."

My concern is that the basic structure of our national government may be unsuitable for contemporary society. This is only a concern, not a firm conclusion, and in what follows I simply want to indicate lines of thinking that might be productive.

Consider the following propositions drawn from observations by political scientists interested in constitutional structures. Political systems with single member districts in which the candidate who receives a plurality of the vote wins, tend to have two-party systems, while those with multimember districts and proportional representation tend to have multi-party systems.(1) "Electoral laws that turn plurality preferences into legislative majorities are likely to be especially disastrous in highly divided societies."(2) "[P]arliamentary democracies tend to increase the degrees of freedom that facilitate the momentous tasks of economic and social restructuring facing new democracies as they simultaneously attempt to consolidate their democratic institutions."(3)

These observations suggest that the arguments for proportional representation and a parliamentary system are stronger than many United States constitutionalists, brought up in a presidential, plurality-winner system, think they are. Of course the particular historical circumstances of the United States may make those arguments unpersuasive. The United States is not a new democracy, for example, for which parliamentarism might be especially suitable. …

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