Former Supreme Court Justice John Paul Steves discusses law professor Sanford Levinson’s book Framed in the current issue of The New York Review of Books. While I would not expect Stevens to endorse Levinson’s call for a constitutional convention to amend the document, I was disappointed that he didn’t give more credence to Levinson’s criticism of the U.S. Constitution, a fundamentally flawed instrument, in my judgment.
According to Stevens’s review, Levinson divides the Constitution in two, one is about “settlement” the other about “conversation.” Among the former are such things like the president must by American-born and at least 35 years old. The conservation part, as we might imagine, gets tricky. But it’s clearly the more interesting. Stevens:
In particular, Levinson devotes significant attention to the Constitution’s preamble, noting that it relates more to an understanding of the purposes motivating ambiguous constitutional provisions (what he calls the “Constitution of Conversation”) than to an assessment of the wisdom of the clear provisions (the “Constitution of Settlement”).
The current five-member majority of the court would seem to have nothing to do with the “constitution of conversation.” Justice Scalia, ever the pompous, presumes to interpret the plain reading of the text, attaching no significance to intentions or motivations or first principles—all subject to considerable debate and, one can only hope now, reassessment and accommodation in light of changing circumstances.
Let’s take the disastrous opinion Citizens United, imbued with sanctimonious reference to free speech and Congress’s inability to abridge it, save for matters of safety and security (e.g., can’t falsely yell “fire” in a crowded theater with neither smoke nor flames present). As Bill Moyers makes clear, the supremes were naive, at best, and unforgivably ideological, at worst. Here’s a lengthy expert from the linked program, which features Trevor Potter, a Republican lawyer who nevertheless believes in both transparent elections and limiting corporate campaign contributions:
BILL MOYERS: Well, you take us right to the core of it. How can secret corporate cash be a legitimate function of democracy?
TREVOR POTTER: Well, it’s interesting that the Supreme Court in the Citizens United decision, the one that I and I think many other people think was a big mistake, even there, they went out of their way, eight to one, four in the majority, all in the minority got together and said, “Disclosure is a high value in a democracy.”
And what Justice Kennedy, who had written this majority opinion said is, “Today, for the first time, we’re going to have a situation we’ve never had before in America, where corporations are going to be able to spend unlimited amounts and it will be fully disclosed. Stockholders–”
BILL MOYERS: I remember that.
TREVOR POTTER: “Stockholders will know how their money is being spent, they’ll be able to use corporate democracy to object, and voters will know who’s paying for the ads. Which,” he said, “is an important democratic value, that knowing where the ad is coming from, who is speaking to you informs you about the context of the ad and enables you to judge it.
“And,” he said, “to hold politicians accountable so that if someone gets elected after millions have been spent for them, and you know it was the X industry or the Y industry that did it, you can then judge them and see whether they dance to the tune of those industries and hold them accountable.” So the good news is, the court said, “These are American values. They are consistent with our constitution.” The bad news is, we don’t have the disclosure system he promised us we had.
BILL MOYERS: Why?
TREVOR POTTER: Well, did he misread the law? Supreme Court justices shouldn’t. He’s right, the McCain-Feingold law did require disclosure that we’re not getting. He talked a lot about the internet and the fact that it would give us instant disclosure. But as you and I know, you know, garbage in, garbage out. If the–
BILL MOYERS: And I thought–
TREVOR POTTER: –information isn’t there, it won’t turn up.
BILL MOYERS: I thought that’s where we were seeing the naïveté of a Supreme Court justice really out of touch with reality. When he said, “Okay, we’re going to give them the right to spend all this money, but shareholders in particular and citizens can go to the internet, get the information they want, and then hold them accountable if they’re not spending money for the company’s profit,” right?
TREVOR POTTER: Right. And of course, that’s interesting in itself, because it reveals the bias of that decision. He assumed the test was, are they spending the money in the way that most profits the company? And that’s very interesting if you think about it, because–
BILL MOYERS: How so?
TREVOR POTTER: Well, I mean, you go back to the founding of our country. And the founders’ view was that we would be citizens, and we would act in the interests of the country, in our greater interests. They didn’t think that everyone would go out and try to act solely in their own self-interest to better themselves if it was bad for the country.
These were people who had fought a war, who had left their families and their homes, clearly not in their self-interest. So to say that the right thing to do in a democracy is have a corporation spend money in ways that will give them the most profit, never mind what happens to anyone else or the best of the country. It is, I think, an example of why you don’t really want corporations participating directly in elections.
They have a very narrow interest. Which is supposed to be their shareholders. But we want voters and citizens to have a broader interest. To think about the next generation, to think about the greater good. There’s an interesting quote from the head of Exxon in a new book out on Exxon where he says, “Exxon is not a U.S. corporation, we do not act in the best interest of the United States.”
Well, it is a U.S. corporation, but what he meant is, they have shareholders all over the world, they have investments all over the world, and it’s not his job to do things that are good for America, it’s his job to do things that are good for his international shareholders.
BILL MOYERS: But under Citizens United, he can contribute as much money as he or his board wants to on – secretly, on projects that may not be in the national.
TREVOR POTTER: Right. Again, this is the nasty combination of the really, the incredibly dangerous accident of Citizens United that allows this unlimited money and the other cases that have allowed unlimited contributions with a lack of disclosure. Because the presumption, the reason the court said this wouldn’t be corrupting is we would know who was giving and could hold them accountable. And we don’t.
No fair reading of Madison’s diary of the Constitutional Convention, the Founders’ writings, or the Constitution itself justifies the Citizens United decision. Yes, the ruling would not fall under the “settlement” portion of the Constitution, belonging firmly within the “conversation.” But surely Madison, Jefferson, et al. would erupt from their graves to rebuke the court for giving personhood to corporations then bestowing on them the free speech protections of the First Amendment.
Levinson, as should we all, is especially perturbed by the electoral college and that portion of the Fifth Amendment guaranteeing the states equal suffrage in the Senate. Of the former, as we witnessed in 2000, a candidate can clearly win the popular vote but nevertheless lose the electoral college, which determines the outcome. In this year’s campaign most of the money is being spent in just three battleground states, whose combined electoral votes will decide November’s election.
As for the Fifth Amendment and equal suffrage, Nevada has as much clout as California, despite the former having just seven percent of the population of the latter, 2.6 million to 37.7 million. Dumb. But try changing it.
The 18th century Founders, detesting both monarchy and mobs, came up with “checks and balances.” Now try to get something done.
The U.S. Constitution appears to have been designed to fail. Funny how an overwhelming majority of Americans have absolutely no confidence in Congress. Yet…
Tom Paxton wrote a song back in the 60s called “What Did You Learn in School Today?” Among the lyrics:
“[I learned that] our leaders are the finest men, and so we elect them again and again.”
No, people. They’re not, no matter what you were taught.
The Constitution sucks. Congress sucks. Citizens United sucks. Because the Constitution sucks, so does judicial review, the power of the Supreme Court to overturn Congress.
But Levinson’s call for a constitutional convention has as much chance of happening as my pitching the deciding game of this year’s World Series. Ain’t gonna happen.