Hacking The Constitution

The late justice Antonin Scalia boasted that his United States Constitution was definitively “dead.” But in a mixed-up political season, what if our founding document wants a new lease on life? And what if we brought it, as a flawed and fungible 200-year-old wonder, back into the conventional conversation again?

Scalia’s “originalist” literalism about a 225-year-old document made him a conservative force on the court — a kind of bad cop for a Constitution that is still cherished by its nation. But our guest, the law professor Sanford Levinson wants us to ask, in a chaotic political season, how is it that we still love the Constitution so much when we’ve long hated the government it produces? He’d argue that the time has come for a second Constitutional Convention, with a very full laundry list of structural changes:

With that in mind, we’ve convened a panel of our favorite lawyers: Lawrence Lessig, a former Scalia clerk and an advocate-turned-candidate against money in politics; Jedediah Purdy, of Duke, a philosopher of modernity and democracy along with a professor of law; and Katharine Young of Boston College, in the business of comparing the world’s constitutions with an eye toward improving them.

Guest List
Lawrence Lessig
Furman professor law at Harvard, former candidate for the Democratic nomination, and author of (most recently) Republic, Lost: Version 2.0.
Sandy Levinson
professor of law at University of Texas at Austin, and author (most recently) of An Argument Open To All: Reading "The Federalist" In The 21st Century.
Jedediah Purdy
philosopher, professor of law at Duke, and author of After Nature: A Politics For The Anthropocene.
Katharine Young
professor of law at Boston College, and author of Constituting Economic and Social Rights.

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  • Potter

    About Scalia, it seems his was an “originalism” that he defined or waved away when it did not suit; i.e. an originalism of convenience when and where he felt that justices were not to be trusted. This according to Larry Lessig if I have him correctly. Perhaps it was about Scalia’s own very strong views all along, religiously, politically and “originalism” was something to hide behind. He did not trust himself. I don’t know. He laughed it all off.

    What we have had, and since the beginning, is a push and pull of what has become very strongly opposing ideologies turned to hatreds and mean-mean-spiiritedness, coalescing around various issues such as abortion, immigration, climate change. These ideologies, when you break them down may have been there since the beginning, forming, reforming. We have had our ups and downs, wrong turns and corrections but we seem to be on a very rocky and at times scary road now. The divisiveness and selfish mean-spiritedness, especially in the Congress of the last 8 years is mind boggling. The nature of the demagoguery being peddled on the right is jaw-dropping. And now the refusal of the Republicans in Senate to consider any Obama nominee to replace Scalia, playing with the Constitution is a continuation of 8 years of obstruction. It echoes Scalia own use of an originalist argument when it suited. Go ahead and make a law! he says. (Like I dare you!)

    Is there any doubt that we are broken, that the Constitution no longer works as it should today? It’s a Model T that did us good service for so long, and there is a lot to keep, like maybe the seats and the wheels, headlights ( which should be turned on) maybe but…. it’s not holding us together. The founders, it seems to me took it for granted that the people would have s modicum of good will towards each other in the end, that common sense and community (goodwill towards each other) would prevail.

    All your guests were marvelous. It’s well worth a third listening for me. There is a lot to think about and read. But the question is how to collectively agree, recognize and then fix the problem. Where does that authority come from? We seem so gridlocked and lacking in leaders with wisdom.

    Donald Trump’s popularity says a lot about the ugliness of what is out there. It’s scary.