The “Whole Constitution Pledge” Revisited

David Gans of the Constitutional Accountability Center, the liberal organization that originated the “Whole Constitution Pledge” has a post commenting on various criticisms of the Pledge, including those by Eugene Volokh, Jonathan Adler, and myself:

To take back America’s charter from the Tea Party, Constitutional Progressives – an initiative launched by the Constitutional Accountability Center and supported by numerous other organizations concerned with protecting the constitutional rights of all Americans – have urged all Americans to pledge to support the whole Constitution….

We are pleased that, over the last week, a number of prominent and well-respected conservatives have taken the time to weigh in on the merits of the “Whole Constitution” pledge. For example, Ed Whalen and Eugene Volokh, have pointed out that calling for repeal of constitutional amendments is not proof of lack of fidelity to the Constitution, noting that Article V gives all Americans the right to call for the repeal of aspects of the Constitution they think are inconsistent with fundamental constitutional principles. Likewise, Ilya Somin has noted that, even after 27 Amendments enacted over 220 years, the long running struggle for a better, fairer, and just system of government still continues. Notably, and to their credit, neither Ed Whalen, Eugene Volokh, nor Ilya Somin show any interest in making the case that the Tea Party’s vision of the Constitution is the correct one, or that their call for repeal of numerous, deeply-rooted parts of our constitutional order should prevail. In fact, Ilya Somin agrees that Seventeenth Amendment – high on the Tea Party hit list – is an important and enduring part of our constitutional order.

These are all important and correct points. Article V is incredibly important to our constitutional story. Because the Framers recognized that the Constitution they created was not infallilble, generations of Americans have been able to change the Constitution in fundamental ways, ending slavery, guaranteeing equality, and ensuring a vibrant democracy that respects the right to vote free from discrimination. But none of these points, in fact, cut against the Pledge. On the contrary, with the Tea Party seizing on Article V to demand repeal of numerous Amendments ratified by the American people over the full sweep of our history, it is critical for the American people to understand the full arc of our constitutional story and to take our Constitution back.

I am pleased that CAC wants to continue this discussion, and of course we’re always happy to be called “prominent and well-respected.” I fear, however, that Gans’ defense of the Pledge fails and that he posits greater agreement between us than actually exists. If, as he now writes, Article V of the Constitution is “incredibly important” and the Constitution is – even now – “not infallible,” then the Pledge is wrong to call for support of “the whole Constitution” and to attack the Tea Party activists for having the temerity to want to change some parts of it. That was the main point of my original post criticizing the Pledge: that some parts of the present Constitution are indefensible (including by the standards of the political left) and others are at least reasonably debatable. We should not denounce the Tea Party – or anyone else – merely because they don’t support “the whole Constitution.”

In addition, I am perfectly willing to defend some important aspects of “the Tea Party’s vision of the Constitution.” As I explain in this article, I think the Tea Partiers are absolutely right to argue that the powers of the federal government should be far more limited than current Supreme Court jurisprudence allows. Indeed, I have been advocating stricter enforcement of constitutional limits on federal power since long before there was a Tea Party. I also agree with the view of many Tea Partiers that the Court has failed to provide anything remotely approaching adequate protection for constitutional property rights and economic liberties. Many other conservative and libertarian constitutional law scholars – both “prominent” and otherwise – hold similar views.

As Gans notes in regards to the effort to repeal the Seventeenth Amendment, I do not agree with the Tea Party on every constitutional issue. Indeed, it would be impossible for me to do so, since there is considerable internal disagreement in the movement. Not all Tea Partiers support repeal of the Seventeenth Amendment, for example, and it’s not even clear whether a majority do so. But I do think that the rise of a popular movement emphasizing stronger enforcement of constitutional limits on federal power is a positive development, even if I don’t agree with all of its specific proposals.

Finally, it’s worth noting that Gans is wrong to describe Jonathan and myself (and probably also Eugene) as “conservatives.” We are in fact libertarians. That distinction matters here because there are some important differences between libertarian and conservative views on constitutional reform. For example, few if any libertarians support efforts to repeal the birthright citizenship provision of the Fourteenth Amendment. The backing for that idea comes almost entirely from conservatives, because the latter tend to be more wary of immigration than libertarians are.

UPDATE: It’s not entirely clear from the context whether Gans meant to describe Jonathan Adler as a conservative in addition to Eugene and myself. If he did not, then I retract that part of my critique of his post.

UPDATE #2: Jonathan Adler has responded to the part of Gans’ post criticizing him here (you may need to scroll down to find his comment).