Symposium | The Democracy Constitution

Dissent: Premature Constitutional Reform

By Mark A. Graber

Tagged ConstitutionDemocracy Constitution

This special issue of Democracy offers a bold challenge by progressive legal academics to past successful progressive political strategies. The political actors responsible for ending slavery and the New Deal believed progressives had to mobilize more progressives before they could make more progressive laws. The constitution of the Levinson group proceeds on the assumption that a more progressive constitution should precede efforts to mobilize more progressives or, to be fairer, that calls for a more progressive constitution will mobilize more progressives and enable contemporary progressive majorities to govern more effectively. Taking my cue from the early Republican Party, which first mobilized voters by promising to prevent the extension of slavery in the West and only turned to constitutional amendments after gaining strong control of the national government, I cannot join the call for progressive constitutional reform in this time and place. To be clear, my objection is that calls for progressive constitutional reforms are premature. I have no particular beef with any any particular provision in the constitution set out in this issue other than, as suggested below, many provisions will not create new progressives, and many may handicap a future progressive coalition in the unknown circumstances of the future.

Professor Sanford Levinson, who has led the call for constitutional reform for more than two decades, makes two sound points that deserve broad national attention. The first is that constitutions ought to be subjects of discussion, not veneration. Americans ought to be taught the relative merits of presidential and parliamentary systems rather than being socialized to assume presidential systems are superior to alternative forms of constitutional democracy. The second is that the present constitutional system is biased against progressive reform. The presidency, Senate, House of Representatives, and federal court system all bear the imprint of hard-wired constitutional practice that either directly sanction the overrepresentation of conservative white citizens or have been interpreted, in the case of gerrymandering, to sanction practices designed to promote the overrepresentation of conservative white citizens.

Progressives must nevertheless learn to win under existing bad rules before they can make better rules. The Republican platforms of 1856 and 1860 emphasized opposition to slavery in the territories rather than repeal of the three-fifths clause because Republicans could repeal the three-fifths clause only after they gained control of the national government by mobilizing northern voters opposed to slavery in the West. Progressives are in the same boat today. They/we must first imitate the Barack Obama of 2008 who demonstrated how Democrats could gain control of all three branches of the national government on the basis of substantive policy appeals before imitating Thaddeus Stevens by reforming constitutional practices that handicap progressive politics.

Premature calls for constitutional reform suffer from several related problems. The tendency for progressives throughout the world to respond to the right-wing populist surge by procedural reforms, either increasing or decreasing checks and balances in the constitutional system, fails to acknowledge that the main problem progressive constitutionalists face is that proponents of progressive constitutionalism are diminishing throughout the world. No constitutional order in which 45 percent of the population supports such demagogues as Donald Trump is likely to thrive. Should for any reason a Trump heir gain control of the government under the constitution proposed in this issue, constitutional democracy in the United States will likely be over. No evidence exists that voters are mobilized by calls to weaken the Senate and Supreme Court, to have congressional elections every four years, and to have a House of Indigeneous Nations. Rather, as political activists know, Americans revere the existing Constitution. Constitutional reform may be necessary, but if done prematurely it is likely to weaken progressives politically. Consider the impact of proposals for court-packing, however justified, on the 2020 national election.

Most important, progressives have little clue what institutions will best promote progressive goals at that future time when progressives gain the control of the national government necessary for constitutional change (whether done inside or outside of Article V). Had Republicans written a constitution in 1858, that document would probably have insisted that a territory be admitted as a state only when the population was sufficient to support one representative under existing apportionment rules. The result would have been to keep Nevada out of the Union, which might have scuttled the Thirteenth Amendment, and Colorado out of the Union, which would have handed the 1876 presidential election to the racist Samuel Tilden. The Democratic Party constitution of 1930 would have almost certainly included rules on judicial review which if applied faithfully would have prevented the Supreme Court from deciding Brown v. Board of Education. This history suggests once progressives learn how to mobilize the voters necessary to win under the existing constitutional rules and once they gain the support necessary to pass constitutional reforms, the needed constitutional reforms may look very different.

It’s the 2022 national election. A senatorial debate is taking place in North Carolina. General agreement exists that the party that wins this race will have a working majority in the Senate. The moderator takes out this issue of Democracy and asks the Democratic nominee, “prominent progressives are proposing such radical changes in the Constitution as. . . . Do you agree?” If you are thrilled with that turn of events, sign up. If you suspect Mitch McConnell may be dancing, perhaps constitutional reform is premature.

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Mark A. Graber is the Regents Professor of Law at the University of Maryland Carey School of Law and the author of Punish Treason, Reward Loyalty: The Forgotten Fourteenth Amendment. 

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