The Constitution Was Meant to Be Changed
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The Constitution Was Meant to Be Changed


It’s great to welcome to the program today,
Sanford Levinson, who is a legal scholar professor at the University of [inaudible] city of Texas law school and coauthor along his wife
Cynthia of the book fault lines in the Constitution, the framers, their fights and the flaws that
affect us today. A Sanford. So great to talk to you today. I’m delighted to be here. So to begin with, for people who may be aren’t
a familiar with the genesis of the constitution, what was going on in the United States that
prompted the founding fathers to realize that the articles of confederation were in some
way not working or falling short, and that writing a constitution was something that
made sense. Right? There are three principle things. First
of all of the so called national government, and I use that term advisedly, wasn’t capable
of getting any money. What they could do in effect was to ask the states to contribute,
but by 1786, I think they were contributing something like a total of $636. So that’s
the first thing, no money. Secondly, there were fears of various military attacks, um,
from a variety of European countries, but also from a, a variety of Indian tribes, many
of whom for very sensible reasons had supported the British during our succession from the
British empire. Um, and so there was real concern about the ability of this new country
to defend itself. The third thing is that there were trade wars, which is something
we’re really with today in an international context, but there was no established notion
of free trade among the various states. Um, and there was some genuine hostility between
and among a number of the states so that people like Alexander Hamilton and others described
the system of yards from the federation is quote Imbecilic Unquote, and something had
to be done when the transition from the articles of confederation
to the Constitution took place. How much discussion do we know how much discussion there was about
writing the constitution in such a way to indefinitely account for however society might
change? And the reason I asked that is that now there is a big debate over to what degree
do we need to be amending the constitution on an ongoing basis to account for how drastically
life has changed today from when it was written. Was there much discussion of accounting for
that at the time of its writing? It’s terrific question. I think that the most
accurate answer is no. That the first constitution that is their article federation lasted a
grand total of six years. I think that if you could have interviewed the framers, they
would been thrilled to be told that the 1787 constitution would last 50 years. I think
if you said, well, you know, you’re really writing something that should last forever,
I think they would’ve said, you know, that’s crazy in part because they were extremely
aware of what they repeatedly call the lessons of experience and the need to update government.
In terms of those lessons, Cynthia and I do not engage and founder of ashing. We think
that the founders by and large were admirable people trying to respond to what they thought
were the chief challenges of the day and that they weren’t good opiates. They were trying
to develop a document that could get us through the next several years where several might
mean 25 or 50 but they expected amendment and quite frankly, I think a lot of them expected
new conventions. Article Five, which is the amendment article explicitly allows for new
conventions. And I think that most of the framers would be astonished to be told that
there’s been no national conventions since 1787 whereas there have been over 230 state
constitutional conventions since 1787 so there is the view from some that it is
immensely difficult to amend the constitution. So my question is sort of a two part question.
The first part is how do you assess the difficulty of amending the constitution in the context
of sort of modern society? And number two, uh, if indeed the founders were so welcoming
or expecting of significant amending of the constitution as the country changed, why did
they set the level of difficulty that they set? Right, right. Another great question. What
they faced in something 87 was an artisan convect federation that required unanimous
consent of the state legislatures of every state. So from their perspective, Article
Five, which requires quote only unquote three quarters of the states to set to amendment
was a big improvement. Secondly, article five worked in the first, let’s call it 15 or 20
years. We got the bill of rights in 1791, uh, 12 amendments were sent out, 10 of them
were ratified. We call them today, the bill of rights in 1800 or 1801 the problems, to
put it mildly, of the way we selected presidents was revealed in the time between Thomas Jefferson
and Aaron Burr. And we got the 12th amendment, which changed things for the better though
not enough as far as I’m concerned. And I’m skipping the 11th amendment, which is much
more esoteric. But in 1793, the supreme court issued a very controversial decision about
state’s rights and it was reversed. So if you look at our early history, you could
say, we know three quarters is a lot, but the system is more or less working in the
modern world. Three quarters of 50 where you have the distribution that you now have of
small states and indeed very small states, and not only large states, but very large
states and a far, far more polarized country, um, than even was the case in. Um, suddenly
in 87, it has become functionally close to impossible to amend the constitution. So you
know, political scientists have looked at that and looked at this and some have said
that the United States national constitution is the most difficult to amend constitution
in the world. And one of the things we talk about in our book, and frankly I think one
of the things that is especially valuable about our book is that we look not only at
the u s constitution, but also at the fact that every state has its own constitution. There are 51 constitution in the United States
and if you look at the state constitutions, they are all easier to amend then the national
constitution. So it’s not the case that the American people are reluctant to amend their
constitution. In fact, the typical state has had close to three different constitutions
over their histories. Rather, we have a peculiar religious like veneration of the national
constitution that makes it almost unthinkable to talk about amending it. But even if you
do think of amending, you then come up against the concrete reality that it’s extraordinary
difficult to get two thirds of each house of Congress. And then even if you get it,
it’s even more difficult to get three quarters of the states. So one of the, um, areas that is of a, a lot
of interest right now because of the current administration is the census and, uh, how
should it be carried out? What is really the underlying purpose of the census from, from
a sort of constitutional historian perspective, what was the point of establishing the census
to begin with? Since it’s an extraordinarily interesting
part of the constitution, because you can make an argument that it’s really one of the
very, very few things Congress must make sure is done. The other is actually setting up
a supreme court of the United States. But for example, setting up circuit courts or
district courts, that’s optional with Congress. It’s optional for Congress to declare war
or not to declare wars, et Cetera, et cetera. But the constitution requires that a census
be held every 10 years. And the reason is deceptively simple. It’s the House of Representatives
that the house is allocated more or less proportionately unlike the u s senate. Um, and so if you’re
going to have a major branch of Congress where representation is a function of the population
of the states, you have to know the population of the states. It’s really as simple as that.
And it’s every 10 years because the framers were smart enough to realize that the United
States was, that I NAMIC country, there would be lots of settlement, there would be people
moving around. So you couldn’t necessarily depend that the
population of Virginia in 1790 relative to the population of, uh, Tennessee would be
the same in 1800 or 18, 20, et Cetera, et cetera. So the constitution requires every
10 years without exception. Interestingly in my reading, although it requires it, it’s
not clear what the penalty would be and to whom it would be assessed if the census does
not happen as scheduled as my reading. Correct of that. Well, you know, it’s one of those
things, John Marshall referred to the constitution as a great outline. And so there are things
that are specified. One of them is you got to have a census. But again, the question
you ask is a very shrewd one. What if the president says, you know, I don’t think so.
Um, then what do you do? Do you charge the president with violating the law? Well, actually this morning is being spent
on the molar hearings and hearing Robert Mower saying over and over again, the Justice Department
says you can’t indict a sitting president. So could you impeach a president for refusing
to take care to enforce one of the most basic obligations of the national government, which
is to conduct a census? I think the answer is yes, but I think it would require a sense
of national outrage led by Congress that the president is being derelict with regard to
one of his most fundamental responsibilities, which is to make sure that the house representatives
is fairly apportioned. Yes. Sending in today’s a hyper partisan climate.
It’s hard for me to imagine that there would be, uh, that level of United notice, uh, around
that particular issue. But it remains to be seen. Right. I think you’re right. We’ve been speaking with Sanford Levinson,
who’s a legal scholar professor at the University of Texas law school. The book coauthored with
his wife Cynthia, his fault lines in the constitution, the framers, their fights and the flaws that
affect us today. Sanford, really a pleasure having you on. Yeah, my pleasure.

31 Comments

  • paulbsmokin

    And you wonder why you guys are losing? Regardless of what you may think, the majority of Americans are not down with your cause. Subtract dead people and illegals from your voting block and you will see for yourself.

  • Andy Zehner

    Nice post! I am a huge fan of Sandy Levinson, and David gets good insight from him. I'm subscribed already — but I'll send some money today! Thanks!

  • Phil Barker

    Hold periodic Constitutional Conventions every 100 years, with representatives from each state in attendance. But here's the catch: A new or modified Constitution would have to go through a ratification process involving each state, and on the table would be the option of completely rejecting it, which would effectively be the same thing as a state declaring it's sovereignty. It doesn't get much more democratic than that. But would anyone get on board? Probably not, because what we're really talking about here is achieving control over opposition.

  • KaiserTheDemon

    Yeah slowly and practically, like it has in the past. So don't let any brash and actions based on emotion and self righteousness by idiots fiending for power change that. Especially people who can't even take care of their own district in NY and lose billion dollar deals with businesses.

  • 噢馬

    The Constitution and the mechanisms used to alter the words is a document and process inherently antithetical to democracy.

  • HELL WITH IT!! B. L. A.

    The constitution was designed for change. As it relates to the day to day operations of government and how to deal with others.
    But
    BUT.
    THERE ARE CERTAIN INALIENABLE RIGHTS- that is yours by birth.beware of those who don’t know that. Because if you are given something by someone.
    Then they can also take it away!!!

  • Dump Truck

    There's apparently a group of people who call themselves Contitutionalists. And I just really don't get it. Holding the constitution up on a podium like it's the last word in any debate ever is exactly the opposite of the intention behind the constitution. Yes of course the constitution is where you go when you're in the process of executing the law, but when having a discussion about something like say gun rights a Constitutionalist will say "Well it's in the constitution." And my point is always "Yes but SHOULD it be? We can CHANGE the constitution. Having something in the constitution isn't a REASON to have it in the constituion." And then there's the inevitable silence of someone failing to comprehend a basic premise and then, "But it's in the constitution." Fucking daft.

  • Ad Fundum Dus

    Just think of it… In most countries with a “proportional representation voting system” people are generally more agreeable with the government.

  • DerpyBacca _148

    People are like "tHe FoUnDiNg FaThErS wAnTeD uS tO hAvE gUnS" but they also wanted us to have slaves (for the most part)

  • Bruce Westcott

    As a Canadian I have always wondered why the Americans regard their Constitution, as the gentleman said, as virtually a religion. So much has always been made of how much bargaining went on to achieve it in the first place, why would people not expect to continue bargaining two hundred plus years later. Why do Americans have to think the Constitution is written on stone tablets.

  • Patrick Downing

    Many comments below indicate they believe this was a good interview. It was not. Dave’s initial questions dealt with this idea that times change and therefore the law needs to change. He asked several about the need to amend the constitution to address social changes. The interviewees answers missed the mark. The reason the usc is difficult to amend is that it is a procedural framework delegating political power. The state legislature is where the law is to primarily change with the times. Changes to state law is not that difficult. Both Dave and the professor are treating the constitution as if it is state law. Unfortunately, this is a very common misunderstanding these days.

    Most of the political problems we have in the US today would be mitigated or resolved simply by re-educating ourselves of the value and importance of federalism and the States.

  • jmorris023

    Pakman, how about a quick fact check to determine the percentage change between the original document and what we have now? By # of amendments or by actual text.

  • Russbot Apocolypse 2020

    Thumbnail of hapless leftist cunts taking scissors to the U.S. Constitution?, I'm shocked. How do you "educated" Marxists learn to walk on your hind legs?.

  • Bill Kemp

    YES, Thomas Jefferson wrote a letter to James Madison on September 6th, 1789. Tom's idea was that the entire constitution should sunset and be re-ratified every 19 years.

    Check out this link: https://jeffersonpapers.princeton.edu/selected-documents/thomas-jefferson-james-madison

    "The question Whether one generation of men has a right to bind another seems never to have been started either on this or our side of the water… (But) between society and society, or generation and generation there is no municipal obligation, no umpire but the law of nature. We seem not to have perceived that, by the law of nature, one generation is to another as one independent nation to another… On the similar ground, it may be proved that no society can make a perpetual constitution or even a perpetual law. The earth belongs always to the living generation… Every constitution, then, and every law, naturally expires at the end of 19. years. If it is enforced longer, it is an act of force and not of right."

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