The Constitution as a Box of Chocolates
Balkin, J. M., Constitutional Commentary
What makes a constitutional provision stupid?
To answer this question, we might turn to an acknowledged expert on stupidity: Forrest Gump. Mr. Gump is an expert on stupidity because he is the most famous stupid person ever to be the subject of a top grossing Hollywood movie. (The relationship of top grossing Hollywood movies to stupidity I leave to another essay.) To be sure, Mr. Gump's claim to expertise tends to undermine his claim to stupidity--and vice versa--but I shall let this difficulty pass for the moment. Mr. Gump informs us that "stupid is as stupid does."(1) Perhaps what makes a constitutional provision stupid is the stupid effects that it has in the real world.
Now there are several ways that a constitutional provision can have stupid effects. To borrow a line from First Amendment doctrine, something can be stupid on its face or stupid as applied. It might be unfair to focus on as applied examples of constitutional stupidity. After all, if you get the right justices ("right" here being a term with multiple meanings), almost any constitutional provision can become stupid as applied. And historically, we have often had the right justices. As a result, one could talk about constitutional provisions that are stupid as applied endlessly. In fact law professors have even developed special educational institutions for this purpose. They are called courses on constitutional law.
This leaves us with constitutional provisions that are stupid on their face. A notable example of a facially stupid provision is the Second Amendment. Professor Levinson finds the Second Amendment to be embarrassing rather than stupid,(2) but I don't think that the two categories are mutually exclusive. Spilling soup at a formal dinner party is embarrassing, drinking milk that has been left at room temperature for three months is stupid, and the contemporary Republican Party is both embarrassing and stupid. Now I've got nothing against guns (or so I would say if one were held against my temple). On the other hand, the Second Amendment does seem on its face to prevent some kinds of gun control legislation that might be socially desirable. Indeed, if Professor Levinson is right that the original purpose of the Second Amendment was to preserve the right of citizens to overthrow an oppressive government, it would seem to me that the types of weapons most protected for individual use would not be hunting rifles or even Saturday Night Specials but AK-47 assault rifles and tactical nuclear weapons.
Stupidity may rest on factors other than stupid consequences. Consider, for example, the slogan, "Keep it simple, stupid." It suggests that needlessly complicated passages of a constitution are signs of constitutional stupidity. Perhaps the best example would be the Twelfth Amendment, dealing with the complicated method by which the electroal college (or Congress, should a majority of the college not agree on a candidate) chooses a president and vice president.(3) This elaborate reworking of an already elaborate system was occasioned by the election of 1800, in which the presidential and vice-presidential candidates received the same number of votes in the electoral college, and the election was thrown into the House of Representatives. Incidentally, this unpleasantness occurred because the electors voted on straight party lines, something which the Founders never imagined would happen. Now that was stupid.(4)
But I digress. The prolixity of the prose surrounding the institution of the electoral college (both in the Twelfth Amendment and elsewhere)(5) suggests that there is something indeed very stupid about it. And this is confirmed by its effects. For example, the electoral college makes it possible for a person to win a majority of the popular vote and still lose the election. This actually happened in 1888, the result being that Grover Cleveland is the only person in American history to win a majority of the presidential vote three times in succession but get to serve as President only twice. …