So Much to Rewrite, So Little Time

By Levinson, Sanford | Constitutional Commentary, Winter 2011 | Go to article overview

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. …

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

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.
One moment ...
Default project is now your active project.
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Cite this article

Cited article

Citations are available only to our active members.
Buy instant access to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25,

Note: primary sources have slightly different requirements for citation. Please see these guidelines for more information.

Cited article

So Much to Rewrite, So Little Time


Text size Smaller Larger Reset View mode
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?

Full screen

matching results for page

    Questia reader help

    How to highlight and cite specific passages

    1. Click or tap the first word you want to select.
    2. Click or tap the last word you want to select, and you’ll see everything in between get selected.
    3. You’ll then get a menu of options like creating a highlight or a citation from that passage of text.

    OK, got it!

    Cited passage

    Citations are available only to our active members.
    Buy instant access to cite pages or passages in MLA, APA and Chicago citation styles.

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

    1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25,

    New feature

    It is estimated that 1 in 10 people have dyslexia, and in an effort to make Questia easier to use for those people, we have added a new choice of font to the Reader. That font is called OpenDyslexic, and has been designed to help with some of the symptoms of dyslexia. For more information on this font, please visit

    To use OpenDyslexic, choose it from the Typeface list in Font settings.

    OK, got it!

    Cited passage

    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.

    Buy instant access to save your work.

    Already a member? Log in now.

    Author Advanced search


    An unknown error has occurred. Please click the button below to reload the page. If the problem persists, please try again in a little while.