So Much to Rewrite, So Little Time
Levinson, Sanford, Constitutional Commentary
Like other participants in this symposium, I've been charged with answering the following question: "If you were rewriting the U.S. Constitution, what would it say?" I am faced with a dilemma: I have written a book, Our Undemocratic Constitution: Where the Constitution Goes Wrong (And How We the People Can Correct It), (1) outlining my many criticisms of the Constitution, and nothing in the now-almost-five years since original publication has diminished my belief that the Constitution imposes on us a dangerously dysfunctional political order that presents a clear and present danger to our collective future. If anything, as my language may suggest to some readers, my loss of "faith" in the Constitution has become ever stronger, and I, therefore, have become something of a crank on the point.
I have also become somewhat crankish regarding what our students learn from us about constitutions in the United States. I think we in the legal academy (and I use the personal pronoun advisedly) generally do a dreadful job of teaching American constitutionalism to our students because we have reduced that subject almost exclusively to a set of issues that are (or have been) litigated before the United States Supreme Court. Moreover, we systematically ignore the fact that all Americans, other than those living in the District of Columbia, live under two constitutions, not only the national constitution. (2) State constitutions, to put it mildly, have their own interest for anyone interested in comparative constitutionalism, ranging from interestingly different ways of organizing basic institutions--e.g., the predominance of decidedly non-unitary executives in the states or elected judiciaries--to the presence of guarantees of "positive rights." (3) Most important, in many ways, is the rejection in almost all the states of the Founders' antipathy to even a hint of direct democracy.
All of those issues should be brought to our students' attention in ways that I fear is not now the case. I have argued elsewhere that there is no real justification for the common practice in American law schools of requiring students to take constitutional law unless it is to prepare them to be better citizens and potential civic leaders. It is quite unlikely that their legal practices will ever involve constitutional law (save for those students who go into the practice of criminal law and therefore must know the constitutional aspects of criminal procedure, a topic that is almost universally not covered in the required courses). (4) As citizens--and, even more, as potential leaders--our students should be informed that the Constitution is, for better, and I think, very much for worse, far more than what is commonly presented in their law school courses.
When talking in October 2010 with a group of Chinese students visiting Harvard, I somewhat surprised them by suggesting that the main thing that foreign students (and constitutional drafters) can learn from the United States is what not to do. What might be genuinely attractive about the Constitution, including its protection of certain rights, can be found, in the modern world, in almost all constitutions, not to mention the fact that most modern constitutions also include guarantees of positive rights that are left unmentioned in the national constitution (though not, as already noted, in American state constitutions). Indeed, almost no modern country has looked to the United States for inspiration; for altogether good reason, constitution drafters abroad are far more likely to look at France, Germany, Canada, Spain, and, since 1996, South Africa. There have, to be sure, been some desirable amendments to the Constitution since 1788, but, frankly, none of them comes close to curing the basic structural failures of the original document, what I have come to call the "hard-wired" features that most professors never bother discussing with their students because they are never subject to litigation. …