A Modest Constitutional Proposal

Here is an interesting essay by Sandy Levinson concerning his theme for the last few years: that the US Constitution is in dire need of reform to eliminate anachronisms, bottlenecks, and gaps that have become apparent over the last 222 years. What sets him off here is the seemingly mundane question of when a presidential transition should begin, but as we learned on 9/11 and are learning in today's Treasury Department, sometimes transitions lead to dangerous gaps in personnel and knowledge:

The basic problem, obviously, is that the current system runs the genuine (and sometimes actualized) danger of depriving us of a genuine "government," in the sense of combining political legitimacy and legal authority, in times where we really need one. Nothing that happened between November 4 and January 20 lessened my concern. We are in the middle of the greatest economic crisis of at least the past 75 years, and we had no one truly able, in the sense I described, of speaking for the United States and being able to commit the United States to a policy. This is madness. Just consider what might have happened had we suffered a terrorist attack attributed to people living, in say, Pakistan or (considerably less likely) Iran.

Levinson is really looking at nuts and bolts issues, not on existential questions of whether we should, say, include an explicit right to privacy (which we have in CA, by the way. Nyah! Nyah!). The transition period is not just delayed by the calendar. It is also delayed by the Senate, which has steadfastly refused to streamline its confirmation procedures.

Levinson doesn't mention this, but a more serious problem is the lack of regard many of our legislators have for the Constitution to begin with. Until recently, the Commerce Clause was used to pass all sorts of legislation that had nothing to do with economic activity. The recent tax bill directed against the AIG bonuses was widely seen as an unconstitutional bill of attainder, yet passed with wide majorities. The bail out of AIG by the Federal Reserve, which has no statutory or constitutional authority over an insurance company is similarly suspect, although it might be supportable on an exigent circumstances argument. But the fact that no congressman, except maybe Ron Paul, has raised this is disappointing. And, the list, as they say, goes on.

One problem is that most people think of the Constitution as relating to issues like free speech, abortion, police searches, and the question of whether one president or another is "shredding" the Constitution. The average person is aware of the political protections that the Constitution affords them, but the last six months have demonstrated how little people are aware of their economic freedom and how willing many are apparently willing to trade that freedom away. It is a real failure of our public discourse that so many constitutional issues are rarely discussed, or even acknowledged outside of law reivews.