The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
In a recent Twitter thread, well-known originalist legal scholar Larry Solum addresses claims that originalists largely endorse the theory primarily because they like its political outcomes. Although Solum himself is more on the left, he recognizes that it is not an accident that originalists are disproportionately libertarian or conservative. Similar charges, of course, are often made against living constitutionalists, who have long been accused of just coming up with ways to constitutionalize their (mostly liberal) political views.
In my view, constitutional theory is unavoidably normative, and no interpretive approach can be justified completely independent of its outcomes. For reasons I outlined here and here, I am skeptical of nonconsequentialist justifications for originalism and my qualified support for the theory is based on instrumental considerations. I also think there is no way to justify living constitutionalism without at least some consideration of consequences. At the same time, I do not believe that judges should simply try to reach the best policy outcome in any given case, or that even the best possible methodology can come close to achieving that result indirectly. And my support for originalism is combined with severe reservations about the effects of following that approach with respect to some parts of the Constitution.
Solum also points out that the impression of congruence between legal theorists' views of the Constitution and their political views is artificially heightened by the fact that most scholars spend far more time writing about areas where they think there is such congruence than areas where they believe the two are at odds. That is true of much of my work, as well. Given limited time and energy, it makes sense to devote more of it to issues where stronger enforcement of the Constitution will make the world a better place than those where it is likely to make things worse. That said, however, here's a list of several areas where I think the Constitution gets important issues badly wrong. By that I mean that we get bad outcomes if we follow what I think is the correct interpretation of the document. I have a much longer list of cases where bad outcomes occur because the courts (and other branches of government) have deviated from the correct interpretation in some way.
1. Nearly Unconstrained Power to Restrict International Trade.
Article I of the Constitution gives Congress nearly unlimited power to impose tariffs and otherwise restrict international trade. Economists across the political spectrum agree that trade barriers are bad for the economy. They are also severe restrictions on liberty. Moreover, we often cannot count on the political system to police itself in this area. International trade is one of the areas where research shows that voter ignorance and "antiforeign bias" are particularly severe, thereby incentivizing politicians to promote protectionism. The protectionism peddled by Donald Trump and Bernie Sanders is just the latest iteration of this longstanding problem. Moreover, public ignorance also helps the government and special-interest groups hide the true extent of the negative impact of protectionism. A well-designed Constitution would at the very least make it far more difficult to enact trade barriers than ours does.
2. Too Much Use of Juries.
Thanks in large part to the Bill of Rights, the US uses juries for a much wider range of cases than virtually any other nation. If the Supreme Court were to fully enforce the original meaning, I think they would have to "incorporate" the Seventh Amendment (which requires the use of juries in most civil cases) against state governments, thereby mandating even more widespread use of juries.
For reasons I summarized in this article, I think such extensive reliance on juries is problematic, at least in cases involving large-scale policy issues and complex scientific evidence. Ignorance and bias on the part of lay jurors can lead to serious errors in such situations.
But my biggest reservation about the jury system arises from the fact that jury service is mandatory, and thereby has become a system of forced labor. I am less convinced than I used to be that the Constitution requires jury service to be mandatory, as opposed to merely permitting it to be so. But even in the latter scenario, the fact that a large-scale system of forced labor is even permitted, still qualifies as a serious injustice. The benefits of jury service, such as they are, can be realized even in a voluntary system.
Another reason to get rid of mandatory jury service is that it is often used to justify other forms of forced labor, such as mandatory voting (an analogy I criticized here) and the restoration of a military draft.
Longtime readers may wonder whether my criticism of the jury system can be reconciled with my qualified support for jury nullification. The answer is that I think juries should be used for a narrower range of cases than at present, and service on them should be voluntary. But in the types of cases where the use of (voluntary) juries is desirable (which includes a wide range of criminal law cases, among others), they should have the power to nullify, at least so long as the scope of criminal law is as egregiously large as is true today.
3. It is too Hard to Remove a Malevolent or Incompetent President.
The Constitution only allows removal of a president before his term is over through the cumbersome impeachment process. That requires a majority vote of the House of Representatives to impeach, and two-thirds of senators to convict. Even then, removal is only permissible if the president has committed a "high crime or misdemeanor" (though many scholars argue that does not necessarily require a violation of criminal law). Given the vast power of the modern presidency and the enormous harm that a malicious or even merely incompetent president can do, I think removal should be easier. The risk of leaving a malign president in office too long is, at least at the margin, greater than that of improperly removing a "good" one. That judgment is reinforced by the reality that few politicians are actually all that good, or all that worthy of being entrusted with vast power. I would not want to allow Congress to remove the president by a simple majority vote, like a parliamentary prime minister. But we would do well to reduce the size of the necessary supermajority in the Senate, and to eliminate the requirement that the president can only be removed for a "high crime or misdemeanor."
Admittedly, this issue would be a less serious problem if the power of the executive branch were cut back to its original, far more limited scope. But that does not appear likely to happen anytime soon.
4. Breaking Up States Should be Easier to Do.
Breaking up big states such as California and Texas could help facilitate beneficial competition and open up new opportunities for people to "vote with their feet." Currently, states can only be divided with the consent of both the state government (which has an obvious incentive to avoid diminution of its own power) and Congress. I am not sure about what the optimal approach is, since it would be a mistake to give the federal government unconstrained power to break up states at will. But dividing up states should be easier than it is now.
5. The Presidency Should not be Reserved to "Natural Born" Citizens.
I explained the reasons for my opposition to this form of discrimination against immigrants here. This provision causes far less tangible harm than the other items on this list. It is nonetheless an egregious example of indefensible discrimination, and its elimination would have considerable moral and symbolic value.
6. The Constitution is too Hard to Amend.
Article V makes our Constitution one of the most difficult to amend in the whole world, possibly even the most difficult. While there are, technically, three different methods of amendment, only one of them has ever been effectively used, and it requires the approval of two-thirds of both houses of Congress, and three-fourths of state legislatures. Since all but one state legislature is bicameral, the three-fourths requirement (which also applies to the other two amendment methods) is even more onerous than it looks. The difficulty of the amendment process exacerbates all the other flaws of the Constitution, by making them almost impossible to remove by legal means. It also incentivizes the political parties to pursue constitutional change by surreptitious methods, such as appointing sympathetic judges. It would be a mistake to make the Constitution too easy to amend, as in the case of some state constitutions that can be amended by a simple majority vote in a referendum. But the federal Constitution errs in the opposite direction.
The above is not an exhaustive list of flaws in the Constitution. It just includes what I think are currently particularly egregious shortcomings. There are others which are comparatively minor, and also some that could potentially cause more trouble in the future than they have so far. For example, the Founders made a mistake in failing to fix the number of Supreme Court justices, thereby opening the door to court-packing. Fortunately, political norms have prevented the parties from exploiting this flaw over the last 150 years. But those norms may well break down in the near future.
There are also some issues that may well be serious problems, but on which I am uncertain in my own mind. For example, I am uncertain about whether we would be better off with a proportional representation system of voting, than the status quo. Finally, I have omitted harmful parts of the Constitution that have been eliminated or superseded by later amendments, such as the Fugitive Slave Clause.
The flaws described here are, I believe, ultimately outweighed by the many virtues of the Constitution (correctly interpreted). But they are significant, nonetheless.