Sanford Levinson: It Is Time to Repair the Constitution's Flaws
[Sanford Levinson is a professor of law at the University of Texas Law School. This essay is adapted from Our Undemocratic Constitution: Where the Constitution Goes Wrong (And How We the People Can Correct It), to be published next month by Oxford University Press. Copyright © 2006 by Oxford University Press.]
In 1987 I went to a marvelous exhibit in Philadelphia commemorating the bicentennial of the drafting of the U.S. Constitution. The exhibit concluded with two scrolls, each with the same two questions: First, "Will You Sign This Constitution?" And then, "If you had been in Independence Hall on September 17, 1787, would you have endorsed the Constitution?" The second question emphasized that we were being asked to assess the 1787 Constitution. That was no small matter inasmuch as the document did not include any of the subsequent amendments, including the Bill of Rights. Moreover, the viewer had been made aware in the course of the exhibit that the Constitution included several terrible compromises with slavery.
Even in 1987, because of those compromises I tended to regard the original Constitution as what the antislavery crusader William Lloyd Garrison so memorably called "a covenant with death and an agreement with hell." So why did I choose to sign the scroll? I was impressed that Frederick Douglass, the great black abolitionist, after an initial flirtation with Garrison's rejectionism, endorsed even the antebellum Constitution. He argued that, correctly understood, it was deeply antislavery at its core.
The language of the Constitution — including, most importantly, its magnificent preamble — allows us to mount a critique of slavery, and much else, from within. The Constitution offers us a language by which we can protect those rights that we deem important. We need not reject the Constitution in order to carry on such a conversation. If the Constitution, at the present time, is viewed as insufficiently protective of such rights, that is because of the limited imagination of those interpreters with the most political power, including members of the Supreme Court. So I added my signature to the scroll endorsing the 1787 Constitution.
On July 3, 2003, I was back in Philadelphia to participate in the grand opening of the National Constitution Center. The exhibit culminated in Signers' Hall, which featured life-size (and lifelike) statues of each of the delegates to the constitutional convention. As one walked through the hall and brushed against James Madison, Alexander Hamilton, and other giants of our history, one could almost feel the remarkable energy that must have impressed itself on those actually in Independence Hall.
As was true in 1987, the visitor was invited to join the signers by adding his or her own signature to the Constitution. Indeed, the center organized a major project during September 2003 called "I Signed the Constitution." Sites in all 50 states were available for such a signing. Both the temporary 1987 exhibit and the permanent one that remains at the National Constitution Center leave little doubt about the proper stance that a citizen should take toward our founding document.
This time, however, I rejected the invitation to re-sign the Constitution. I had not changed my mind that in many ways it offers a rich, even inspiring, language to envision and defend a desirable political order. Nor did my decision necessarily mean that I would have preferred that the Constitution go down to defeat in the ratification votes of 1787-88. Rather, I treated the center as asking me about my level of support for the Constitution today and, just as important, whether I wished to encourage my fellow citizens to reaffirm it in a relatively thoughtless manner. As to the first, I realized that I had, between 1987 and 2003, become far more concerned about the inadequacies of the Constitution. As to the second, I had come to think that it is vitally important to engage in a national conversation about its adequacy rather than automatically to assume its fitness for our own times....
Read entire article at Chronicle of Higher Ed
In 1987 I went to a marvelous exhibit in Philadelphia commemorating the bicentennial of the drafting of the U.S. Constitution. The exhibit concluded with two scrolls, each with the same two questions: First, "Will You Sign This Constitution?" And then, "If you had been in Independence Hall on September 17, 1787, would you have endorsed the Constitution?" The second question emphasized that we were being asked to assess the 1787 Constitution. That was no small matter inasmuch as the document did not include any of the subsequent amendments, including the Bill of Rights. Moreover, the viewer had been made aware in the course of the exhibit that the Constitution included several terrible compromises with slavery.
Even in 1987, because of those compromises I tended to regard the original Constitution as what the antislavery crusader William Lloyd Garrison so memorably called "a covenant with death and an agreement with hell." So why did I choose to sign the scroll? I was impressed that Frederick Douglass, the great black abolitionist, after an initial flirtation with Garrison's rejectionism, endorsed even the antebellum Constitution. He argued that, correctly understood, it was deeply antislavery at its core.
The language of the Constitution — including, most importantly, its magnificent preamble — allows us to mount a critique of slavery, and much else, from within. The Constitution offers us a language by which we can protect those rights that we deem important. We need not reject the Constitution in order to carry on such a conversation. If the Constitution, at the present time, is viewed as insufficiently protective of such rights, that is because of the limited imagination of those interpreters with the most political power, including members of the Supreme Court. So I added my signature to the scroll endorsing the 1787 Constitution.
On July 3, 2003, I was back in Philadelphia to participate in the grand opening of the National Constitution Center. The exhibit culminated in Signers' Hall, which featured life-size (and lifelike) statues of each of the delegates to the constitutional convention. As one walked through the hall and brushed against James Madison, Alexander Hamilton, and other giants of our history, one could almost feel the remarkable energy that must have impressed itself on those actually in Independence Hall.
As was true in 1987, the visitor was invited to join the signers by adding his or her own signature to the Constitution. Indeed, the center organized a major project during September 2003 called "I Signed the Constitution." Sites in all 50 states were available for such a signing. Both the temporary 1987 exhibit and the permanent one that remains at the National Constitution Center leave little doubt about the proper stance that a citizen should take toward our founding document.
This time, however, I rejected the invitation to re-sign the Constitution. I had not changed my mind that in many ways it offers a rich, even inspiring, language to envision and defend a desirable political order. Nor did my decision necessarily mean that I would have preferred that the Constitution go down to defeat in the ratification votes of 1787-88. Rather, I treated the center as asking me about my level of support for the Constitution today and, just as important, whether I wished to encourage my fellow citizens to reaffirm it in a relatively thoughtless manner. As to the first, I realized that I had, between 1987 and 2003, become far more concerned about the inadequacies of the Constitution. As to the second, I had come to think that it is vitally important to engage in a national conversation about its adequacy rather than automatically to assume its fitness for our own times....