Reassessing Our Federal and State Constitutions

In this recent post, University of Texas constitutional law professor Sanford Levinson calls for a reassessment of our federal and state constitutions:

[I]nstead of being fixated on what the Constitution means, one instead asks whether the Constitution, given a stipulated meaning that may in fact not be at all difficult to discern, is in fact wise. One might call this a “Jeffersonian” approach to the Constitution inasmuch as it invites relentlessly asking whether the Constitution is serving us well. This is, incidentally, an especially important question if we agree on constitutional meaning. Disagreement, after all, suggests the possibility of legitimately interpreting the Constitution to achieve what we might describe as “happy endings.” The situation is decidedly different, however, if we agree on constitutional meaning, but believe that it sets us up less for happy endings than for driving over a cliff….

I have recently published a new book, Framed: America’s 51 Constitutions and the Crisis of Governance (Oxford University Press), that focuses almost exclusively on the wisdom of constitutional structures that are, almost without exception, obvious in their meaning. Evidence of this obviousness is that they are rarely brought up in law school classes precisely because there is nothing to “argue about” in the only sense that lawyers and their professors define that term, which involves debates about meaning…

An important theme of the book is that there are fifty-one constitutions within the United States if one takes into account the fifty states. More to the point, these state constitutions can teach valuable lessons of their own. Some of them, as with the national constitution, may offer cautionary lessons inasmuch as they help to explain the dysfunctionalities of given state politics.

I agree with much of what Sandy says in this post. We should not blindly venerate the Constitution. And we should give serious consideration to the possibility that some parts of it are flawed or even dysfunctional. As I explained in this post, a few parts of the Constitution are indefensible and some others are at least open to serious question. Sandy is also right that legal scholars should pay more attention to the effects of the clear “hardwired” parts of the Constitution and to state constitutional law. The latter is sadly neglected by most constitutional law academics, and rarely gets its due in the law school curriculum. Hopefully, Sandy’s important book will help change that.

On the other hand, I am far less confident than Sandy that we should push for a major restructuring of the Constitution at this point in our history. As Richard Epstein notes in his response to Sandy’s post, such an effort could easily do more harm than good. We should not abjure all efforts constitutional reform. But I would prefer to use a scalpel rather than a meat cleaver. For that reason, I am skeptical of calls for a new constitutional convention, which has been advocated by some on the political right, as well as by Sandy himself.

I also disagree with some of Sandy’s specific criticisms of federal and state constitutions. For example, he writes that California’s state constitution is flawed because of “the near-inability to raise any taxes, given the constitutional requirement of a two-thirds vote in the legislature, coupled with the ability of the California electorate to pass legislation and even constitutional amendments through mechanisms of ‘direct’ democracy.” However, California has in fact been quite successful in raising taxes. It has the third-highest state income tax rate of any state (trailing only Hawaii and Oregon). The highest rate (9.3%) kicks in at an annual income of just $48,029. The state also has an above average state sales tax rate (6.25%). California’s fiscal crisis is the result of unusually high spending, not unusually low tax rates.

However, Sandy is not entirely wrong to believe that California’s problems have a constitutional dimension. As I explained in this post, the state’s dysfunctions are in part the result of its vast size and its favorable geographic location, which make it difficult for citizens to “vote with their feet” against excessive taxation and regulation. Only in the last few years have things gotten so bad that the state has begun to suffer net outmigration to other states. Californians would have been better off if the state were broken up into several smaller jurisdictions that would have to compete with each other for residents. But that option is rendered almost impossible by the federal Constitution.

UPDATE: The Tax Foundation reports that California has an additional 10.3% tax rate on incomes of over $1 million per year.

UPDATE #2: Mike Rappaport has posted a thoughtful response to Sandy’s post here. I agree with many of Mike’s points, though I a more sympathetic than he is to reforms that would make the US Constitution easier to amend.