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.

  • PaulD

    If that were true, why would they have included the Bill of Rights. Those amendments are about the exact opposite of consolidating power. If they wanted to consolidate power, why now just make a monarchy (which the Enlightenment is the opposite of)?

    • Gordon Adams

      The Bill of Rights was passed during the first Congress. Virginia, in particular, was concerned about states rights. At the time, Virginia was the largest and most powerful state. The Bill of Rights was passed to calm concerns about a “too strong” central government.

      Remember, the Articles of Confederation left the central government with little actual authority. Shays Rebellion was background to the Philadelphia Convention, later the Constitutional Convention. The Confederation Government couldn’t muster militia to put down the rebellion or even raise funds to pay the militia. This, then, was (not the only) impetus for a Constitution to strengthen the central government.

      Virginia held off ratification because of concerns the new Constitution weakened the authority and prerogatives of the states. That state only joined once it was clear they would be left isolated from the United States. It took 9 of the 13 states to ratify and put the new Constitution into effect. But Virginia’s ratification was conditional upon certain guarantees found in the Bill of Rights. These rights were thought necessary to check Federal authority in favor of the states.

      When the founders spoke of the “people”, they referred to themselves, i.e. the ruling class, and not the people as we understand the word. The Founders had a low opinion of the “middling classes” ability to participate in government. The middling classes were essentially craftsmen and unskilled workers.

      At this time, only land owners were allowed to vote. Consideration was made for wealthy persons like Benjamin Franklin. Also, members of the Federal Senate were chosen by each state’s legislature, which in turn were elected by the ruling classes, to over emphasize the point.

  • PaulD

    The reason Scalia wasn’t that interested in what other countries were doing with their constitutions is that, as he said repeatedly, his job was to interpret the US constitution. The Constitution is a set of basic rules on how government should work. When we’re playing sports as a kid, we might question the rules, but we abide by them because the sport would cease to be a sport with objective measures for who wins.

    Words have meaning.

    • Potter

      Scalia was subjective. He interpreted. He had a conservative and at times wacky viewpoint. The rules of the game are that the President gets to choose the replacement after Senate confirmation. The Republican led body refused to even meet and hear from Obama’s choice, never mind vote. The nominee is a man, who is distinctly non-partisan. Did the constitution foresee this level of disrespect and acrimony? And how would Scalia himself reconcile that ( if he would)?

      As someone who voted for Obama, I feel we were robbed of a Supreme Court appointment. We abide by the rules? It will not be forgotten.

      And if words have meaning. well…..I can’t even begin on that after this season. Yes they do.

      • PaulD

        Everyone is subject and all justices interpret. The question is, how close to the original text do the get to. Again, are rules to be interpreted? Based on the words as they’re written or against a context of some time after they were written?

        As for the rest of your post, what does that have to do with Scalia specifically? If zombie Scalia could come back and weigh in on what the Republican senate did, I suspect he’d disapprove, but that’s immaterial.

        • Potter

          The question is how close to the original rules MUST they get to? And what did THAT mean and what does THAT mean to people interpreting it? We have a history of interpretations. We have a social history. And we have the present moment. Otherwise we would not need judges, humans. A computer could do better. It has to do with philosophy, sensibility and, dare I say, a moral sense, a vision derived about what we are about. That does not mean negating all the intervening years to the present and trying to get into the founders heads during a very different era. Nor do I think they envisioned we would. Did you listen to the program??

  • PaulD

    And a final thought, the show talks about how the US constitution did not enforce equality. By what standard? Today’s or the standards of the 18th century? Yes, certainly the US constitution didn’t enforce equality for women and racial minorities. Unfortunately though, these were the standards of the time as even white men were starkly stratified into classes.

    The rest of the world was still governed by the divine right of kings and the commoners *had no rights*. In that respect, the US Constitution was a giant leap forward giving that common man a say in government as well as protecting his natural rights.

    In light of today’s world, yes, it would have been great if it recognized women and minorities as full fledged humans as well, but it’s not like the rest of the world was treating brown people and women as much more than property.