William N. Eskridge and Sanford Levinson, eds.
Constitutional Stupidities, Constitutional Tragedies.
New York: New York University Press, 1998. x + 286 pp. Appendix, notes,
and index. $60.00 (cloth), ISBN 0-8147-5132-6 ISBN 0-8147-5131-8; $21.00
(paper), ISBN .
R. B. Bernstein , New York Law School.
Constitutional Historians Take Constitutional Theory Seriously?
Constitutional historians are divided from constitutional
theorists by common subjects: the Constitution's origins, interpretation,
and development over time. Historians sometimes demur at theorists'
demands that they assist in identifying a constitutional provision's true
meaning (though the temptation to do so can be strong). Theorists often
propound thought experiments that historians reject because they could not
have happened. (A real, recent example: "What if Canada had ratified the
Constitution in the midst of the ratification controversy of 1787-1788?")
Thus, historians often greet theorists' work with
frustration seasoned with derision, and may well view this book that way.
At its core are two questions posed to an array of constitutional
theorists: "What is the stupidest provision of the current Constitution?"
(pp. 1-6, 13, and 15-112) and "What is the worst decision you would fell
compelled to reach under your own favored theory of constitutional
interpretation?" (pp. 6-10, 113, and 115-256). As the volume's editors,
Professors William N. Eskridge, Jr., of Georgetown University Law Center
and Sanford Levinson of the University Texas Law School, explain, the
inquiry into constitutional stupidities began as a jest conjured up in an
afternoon's walk during a conference at Tulane University on
constitutional design. It first took form as the "Constitutional
Stupidities Symposium," Constitutional Commentary 12 (Summer 1995):
139-225. Revised and expanded, those papers appear as Part One of this
collection. The editors then organized a companion symposium on
constitutional tragedies (pp. 7 & 11 n12), the basis of Part Two.
Eskridge and Levinson divide constitutional theorists into
positivists and normativists (p. 6). When interpreting the Constitution,
positivist constitutional theorists look to external sources of doctrinal
legitimacy, such as the original intent or understanding of a
constitutional provision or "neutral principles." By contrast, normative
constitutional theorists figure out how to interpret the Constitution to
make it conform to our aspirations for it; as Ronald Dworkin would put it,
they seek to make it the best Constitution it can be. Levinson and
Eskridge brush too hastily past the point (p. 6) that even positivist
theorists are engaging in a normative enterprise. After all, the
positivist's claim that original intent, or neutral principles, or the
evolution of the constitutional system are the best guide to interpreting
the Constitution is based not only on that guide's superior capacity to
support legitimate interpretations of the Constitution, but on the idea
that a legitimate interpretation of the Constitution is normatively
desirable. To put it more plainly, we seek an external source of
legitimacy because it is a good thing to interpret the Constitution in a
Eskridge and Levinson offer this distinction to justify
their inquiry into constitutional tragedy, testing the normative claims of
various theories of constitutional interpretation by inquiring whether
those theories can ever produce unhappy results. But the division between
positivists and normativists also illuminates the "stupidities" inquiry.
Identifying constitutional stupidity and constitutional tragedy form the
flip-side, as it were, of deciding what is truly intelligent,
praiseworthy, and valuable about the Constitution. Thus, exploring
stupidities alleged to exist within the Constitution, and tragedies that
might result from interpreting the Constitution, enable us to begin to
formulate an agenda for improving the Constitution by a normative standard
of what it should be and what functions it should perform. Furthermore,
such inquiries also help us to use that normative standard as a rule of
thumb for interpreting the Constitution, and for deciding how to interpret
I. "Stupid is as stupid does."
The orchestrators of the "stupidities symposium" excluded
the repealed slavery and Prohibition provisions, focusing attention on
"the current Constitution." They gave the participants little more
guidance than that, however. The result is a spectrum of definitions of
constitutional stupidity, ranging from "things we don't like" to "things
that might have worked once but don't work any longer" to sheer oversight.
Steven Calabresi targets "spinach stupidity" (from the
New Yorker cartoon of a toddler growling, "I say it's spinach and I
say the hell with it!"). Calabresi's "An Agenda for Constitutional
Reform"(pp. 22-27), asserts the undesirability of the activist national
government that has evolved since the 1930s. He identifies the features of
the Constitution that led to this bad situation as mistakes rather than
stupidities; his cure is an array of proposed amendments to the
Constitution (including balanced-budget, term limits, line-item veto, and
nondelegation) favored by many conservative critics of the constitutional
system. Although these subjects are often the focus of vigorous,
legitimate disagreement, to label the view one does not like as a
constitutional stupidity or mistake seems politicized overreaching spurred
by nothing more than ardent certitude.
Other essays maintain that the Constitution embodies
assumptions about the nature and extent of government that no longer
describe constitutional reality; these essays focus on what we can call
"shelf-life stupidity." Robert F. Nagel suggests (pp. 71-74) that the
Federalists' wrongly assumed that the states would encroach on the federal
government rather than the other way round; that view does not hold water
now, and maybe did not do so then. Other essays--by Akhil Reed Amar (pp.
15-17) and Sanford Levinson (pp. 61-66)--zero in on that favorite target
of constitutional theorists, the Electoral College, though Levinson also
directs his fire at the provisions governing transition from one
Presidential administration to the next.
Michael Stokes Paulsen (pp. 75-76) identifies the sole
example of "sheer stupidity": If the Vice President is impeached, he
presides over his own trial, according to a plain reading of the
Constitution. This stupid result is easily explicable (though Paulsen does
not do so) by noting that the Convention devised the Vice Presidency at
the last minute, and thus failed to integrate the office fully into the
Virtually all the targets in Part One are constitutional
provisions receiving almost no attention from jurists in deciding concrete
cases. Indeed, Lief Carter proposes (but then rejects the argument) the
stupidity of the so-called housekeeping provisions of the Constitution,
arguing that they trivialize a document that should rather codify and
inculcate grand principle (pp. 28-34, and esp. p. 31). This emphasis
suggests two things. First, provisions not subject to continual
interpretation and reinterpretation by courts seem more likely to contain
the seeds of stupidity, of whatever kind. Second, judicial interpretation
of the Constitution may be a safeguard against most stupidities in
so-called "open-ended" or "interpretable" constitutional provisions.
Even so, Louis Michael Seidman insists (pp. 90-94), the
oft-construed criminal-procedure provisions of the Bill of Rights are
constitutional stupidities because they "function mostly to make us
satisfied with a state of affairs that should trouble us deeply." By
convincing us that they protect the rights of suspects and defendants,
these provisions reconcile us to the United States' status as the nation
with the second-highest rate of incarceration in the world (behind
Russia). Seidman's troubling essay is more suggestive than conclusive, as
is the case when a scholar seeks to make a counterintuitive point in a
limited space. Few of the other essays in Part One rise to this level of
intellectual challenge; most easily sort into one or another of the
conventional pigeonholes of stupidity.
Philip Bobbitt dismisses the stupidities symposium as a
"parlor game" (pp. 18-21) and cogently indicts the whole enterprise.
(Carter's essay seconds Bobbitt's position, though more mildly.) Most
constitutional historians will be drawn to his essay, for Bobbitt
persuasively insists that such inquiries take place in a self-imposed
vacuum, detached from the history that gave rise to the Constitution and
that shaped its development as a system of government.
At bottom, three themes pervade these essays. A
methodological theme is the failure, sometimes amounting to outright
refusal, by most of these theorists to acknowledge the historical context
for a given constitutional provision, or the historical reasons why the
framers included a given feature in the Constitution in the first place
and why that feature has survived pressures for its replacement or repeal.
The first of two substantive themes is the disdain shared by most of these
theorists for federalism and their preference for national governmental
authority. One need not go so far as Calabresi, for example, to be
unsettled by these writers' refusal to acknowledge that different states
might well have different reasons for using differing qualifications
(other than the floor set by the voting-rights amendments to the
Constitution) to govern access to the polls. Similar points apply to the
theorists' distaste for the Senate (pp. 35-39, 95-97). Indeed, the word
"federalism" appears nowhere in the index to this book.
The second substantive theme is the theorists'
misapprehension of the task of framing a constitution or a constitutional
amendment. The inquiry into constitutional stupidities presupposes that
framing a constitution, or an amendment to one, is a serene intellectual
exercise permitting uniform consistency, coherence, and foresight. By
contrast, constitutional historians have long described the Constitution
and its several amendments as bundles of compromises making up a
constitutive text riddled with tensions and inconsistencies. For this
reason, many constitutional historians may well scoff at the seriousness
of these inquiries into constitutional stupidities, saying, "So what else
II. "Constitutional tragedy doesn't need bodies on the
Part Two poses a more serious question; thus the essays
responding to it are more serious and substantive than those in Part One.
Constitutional theorists argue that their proposed method of
constitutional interpretation is the best or soundest or fairest or most
just way to interpret the Constitution. Is any theory of constitutional
interpretation uniformly best or soundest or fairest or most just,
however? Or is even the best theory of constitutional interpretation
capable of generating bad, unsound, unfair, unjust, even tragic results?
Despite the lack of an agreed-upon definition of
constitutional tragedy, Part Two has an underlying coherence, because so
many of the essayists refer to the Greek dramatists, with Sophocles'
Oedipus Rex and Antigone as favored benchmarks. Most of the
scholars writing in Part Two regard tragic outcomes as inevitable, no
matter what interpretative method one uses; partly, their concurrence that
tragedy is unavoidable comes from shared recognitions that law cannot
guarantee to provide justice by reference to moral norms, or that
democracy itself is no guarantee of avoiding tragedy in governance. This
is the theme of the best essays in this part, by Larry Alexander
(115-120), J. M. Balkin (121-128), Rebecca L. Brown (139-146), Christopher
L. Eisghruber and Lawrence G. Sager (147-151), and Gary Jacobsohn
(172-179). Three other eloquent essays, by Gerard V. Bradley (capital
punishment, 129-138), Marie A. Failinger (152-161), and James E. Fleming
(right to die, 162-171), focus focus on tragic issues of life and death.
Another favored theme is juristic hubris; according to Pamela S. Karlen
and Robert Ortiz (voting rights, 180-188), Michael W. McConnell (various
cases, 203-206), Earl M. Maltz (Brown v. Board of Education,
207-216), and John Yooo (McCulloch v. Maryland, 241-247), various
issues have tempted judges to exceed what judges can do in interpreting
Conclusion: Heeding Normative Assumptions
The essays gathered in this book compel us to reexamine the
normative dimension of our understanding of the Constitution: What should
it be? What should it do? How should it be interpreted and applied to
resolve constitutional quandaries? When should it be revised or even
My point is not that historians should spend much time
considering these questions in the present--though as I write this review
the dust is still settling on the vain attempts of hundreds of historians
and constitutional scholars to argue for a specific interpretation of
Article II, section 4 of the Constitution (defining impeachable offenses).
Rather, historians who deal with the Constitution's history ought to be
more self-conscious about the normative assumptions and values that we
bring to that scholarly task. We ought to be aware that we may well be
evaluating the work of constitutional actors in the distant or near past
by reference to our own understandings of what the Constitution should
have been and should be today.
In sum, therefore, reading Constitutional Stupidities,
Constitutional Tragedies will spark in constitutional historians a
renewed appreciation for the obligation to heed the normative dimension of
the constitutional historian's task. We must remain sensitive to the
unvoiced normative assumptions that drive the thought and actions of those
whom we study--and those who study them.
Copyright © 1999 by H-Net, all rights reserved. This work
may be copied for non-profit educational use if proper credit is given to
the author and the list. For other permission, please contact
Library of Congress
Call Number: KF4550.A2C668 1998
* Constitutional law -- United States.
Citation: R. B. Bernstein . "Review of William N. Eskridge
and Sanford Levinson, eds, Constitutional Stupidities, Constitutional
Tragedies," H-Law, H-Net Reviews, March, 1999. URL:
Stupidities, Constitutional Tragedies…legal experts play a scholarly
version of Dumb and Dumber, nominating Constitutional clauses they
think were botched…The larger theoretical agenda…is to shift discussions
of constitutional law, at least for a moment, from the great cases to the
foundational document itself.”
Constitutional Stupidities, Constitutional Tragedies, by William N.
Eskridge and Sanford Levinson, eds., Chronicle of Higher Education
44 (August 7, 1998): A17.