Should The Constitution Be Scrapped?

My very good and old friend, Sandy Levinson, a prolific and provocative law professor at the University of Texas, has refused to sign the Constitution. In a Findlaw article that you should read, he explains why. (Link via Larry Solum)

No one familiar with Sandy’s impressive corpus of writings will be surprised by his latest dissent. He has argued for years that words, including Constitutional words, don’t mean anything (or at least not anything useful) — see, for example, “Law as Literature,” 60 Texas Law Review 373 (1982) — and he edited a collection of essays entitled Constitutional Stupidities, Constitutional Tragedies (NYU, 1998).

Still, I think this recent article (I had started to say latest article, but it’s several days old now and he may well have written something subsequently) is both interesting — all of Sandy’s articles are interesting — and revealing as well. Since “un-American” has an irrevocably pejorative connotation I will not use that term, but as a simple description it’s not bad, for the fact is that Sandy and a significant number of others of his ideological persuasion simply don’t like quite a few features of the Constitution and the governmental structure that it constitutes.

Here’s an incomplete list of aspects of our constitutional order that Sandy would dispense with:

• The Senate, with its silly two votes per state
• “Rigidly” fixed terms for the president
• Electoral College ties being broken by House votes with one vote per state
• The Electoral College itself
• Life tenure for judges
• The difficulty of amendment

Sandy’s advice? Junk the Constitution.

Perhaps the most inspirational thing about the Constitution’s actual, original signers is precisely that they were willing to learn from the “lessons of experience.” They dared to junk the Articles of Confederation, and to replace them with what they thought were better structures.

We can admire their audacity and their courage without having to agree that they necessarily got it right for all time. We most honor them by doing what they did–thinking for ourselves, as they thought for themselves.

Yes, but what should we think? This article does not propose a replacement, but there may well be one, or a dozen, in the works that will. From this list of negatives, it appears that Sandy thinks the Revolution was a waste of time and that we’d be much better off as a constitution-less parliamentary democracy still in the Commonwealth. Or maybe one of the several French republics is a more appealing model.

Since Sandy’s strongest objection seems to be to our federalism, “which gives the Rocky Mountain states, especially, a totally unwarranted stranglehold on important aspects of public policy,” perhaps the best Sandyian solution would be a secession of the Blue States and their annexation to Canada.

UPDATE – On the call for blue-state secession, see this piece in SLATE, this piece by a Boston College prof., and this post by Geitner Simmons.

UPDATE II – Larry Solum, in an update, notes that Canada won’t work because it also has a federal system. Shucks. Maybe they could just join Quebec, which already has official bilingual multiculturalism. I would think Sandy would find the idea secession at least moderately appealing. He certainly couldn’t find it unconstitutional, despite the cases following the Late Unpleasantness that attempted to do that, since he is “confident that there is nothing in the Constitution that prevents legislatures from adopting the kinds of policies that I think would make us a better nation.” (But the cloud surrounding this silver lining is that there is also nothing in the Constitution that prevents legislatures from violating what the rest of us — left and right, thanks to what we see in the Constitution — call rights.)