Should We Support the “Whole Constitution”?

Co-bloggers Eugene Volokh and Jonathan Adler have made some powerful criticisms of the “Whole Constitution Pledge”put together by various liberal organizations. As Jonathan points out, there are some parts of the Constitution that most liberals prefer to underenforce, if not completely repudiate.

I would go further than that and note that at least a few parts of the Constitution are completely indefensible, including by the standards of modern liberals. For example, how many of the organizations behind the Whole Constitution Pledge support the provision in the Constitution that allows only native-born citizens to run for the presidency? I know I don’t – and it’s not because I have any desire to run for president myself. At best, this provision reflects unjustified suspicion of immigrants; at worst it’s rank bigotry. How about the rule under which the vice president (in his capacity as president of the Senate) gets to preside over his own impeachment trial? Does anyone, liberal or otherwise, believe that’s a good idea?

There are other parts of the Constitution, which though not obviously wrong, are at least open to serious criticism. For example, I think that it should be easier to break up excessively large and dysfunctional states, such as California. A number of liberal legal scholars, such as Sanford Levinson, believe it’s a bad idea to give some states fifty times greater representation per capita in the Senate than others. Are their ideas beyond the pale of reasonable discourse? Obviously not.

The Founding Fathers did a great job overall. But a few parts of their handiwork were flawed from the start, and some others that may have been defensible in 1787 or 1868 are no longer so today. For these reasons, I do not pledge to support the whole Constitution. Some parts of it are unworthy of support. I do urge judges and other government officials to impartially enforce all of its provisions for so long as they remain unamended. But that is not the same thing as endorsing their propriety.

Obviously, not all constitutional reform proposals are good ideas. For example, I am skeptical of calls by some on the right for the repeal of the 17th Amendment. But if you want to defend that Amendment against its critics, it’s not enough to endorse the “Whole Constitution” or to make general claims that “our Constitution has been improved by the Amendments adopted over the last 220 years,” as the Pledge puts it. You have to explain, as I tried to do, why repealing this particular amendment would do more harm than good.