Levinson, Sanford, Eskridge, William N., Jr., Constitutional Commentary
What follows is the aftermath of a conference on "Constitutions and Constitutionalism," sponsored by the Murphy Institute of Political Economy at Tulane University in March of 1994, focusing on problems of constitutional design. Walking back to our hotel, we began a joking conversation about the "stupides feature" of the current United States Constitution.(1) As the conversation proceeded, we decided, as is often the case with jokes, that there was indeed a serious point involved. We ourselves adhere to a wonderful distinction once offered by Russell Baker between "seriousness" and "seriosity," as he defended the proposition that even the most serious of subjects do not require a ponderous tone in discussing them.
We decided that it would be interesting to find out what a number of thoughtful and provocative constitutional scholars would say in response to an inquiry about constitutional stupidities. We were interested, for example, in whether there would be any convergence of views as to the primary imperfections of our current constitutional scheme. We therefore decided that each person would be asked to answer the question in relative isolation, free, for example, of the information of what our own choices might be.
The editors of Constitutional Commentary were kind enough to offer us a home for this symposium, for which we express our warm gratitude. Once that offer was made, what we did was to call a number of people we knew, tell them of the project, and invite them to participate. There is no canonical letter specifying the precise question. We simply invited participants to identify the stupidest, most mistaken, most deleterious, or their least favorite clause of the current Constitution. There are, of course, subtle differences in these ways of phrasing the assignment, as there are in regard to yet another way that Levinson especially ultimately formulated the question: What clause of the current Constitution would you least recommend to someone currently engaged in the project of constitution-drafting, as in Eastern Europe?
Invitees were asked to respond to the question(s) in roughly 1000 words, which necessarily means an invitation to write somewhat polemically. And, needless to say, participants were allowed to challenge the project itself, though, interestingly, even Philip Bobbitt, who eloquently offers just such a challenge, does not assert that the Constitution is truly perfect as it stands. …