Home -> Law Blog Directory -> Legal Commentary Blogs -> Balkinization

Legal Commentary

: Balkinization

Running Cars, Constitutions and Metaphors into the Ground

By Jack M. Balkin

[The following is the introduction to a short essay I just sent to The Political Economy of the Good Society: A PEGS Journal. I will be happy to send the full version to anyone on request.]

Professor Sanford Levinson frequently analogizes the Constitution of the United States to a vehicle that desperately needs repairs. ?[R]elying on the present Constitution.? he writes, ?is similar to driving a car with very bad brakes and slick tires.? In his opinion, the Senate, Electoral College, presidential veto, lack of emergency provisions, and Article V are the constitutional equivalents of worn pads and leaky values. No rational person, Levinson asserts, would drive a car so badly flawed. Similarly, he concludes, no rational American should support governance by such an undemocratic constitution.

Much commentary on Our Undemocratic Constitution implicitly challenges the automotive metaphor. The Constitution of the United States, supporters profess, is not really as bad as Levinson would have us believe. What Levinson perceives as outdated parts are, in fact, time tested systems for preserving individual rights and maintaining social stability. Hard to amend constitutional provisions prevent transient majorities from governing in ways that oppress minorities. The presidential veto guarantees that legislation is supported by the one governing official who must run a national campaign. The Electoral College ensures that presidential campaigns are national and do not focus entirely on the needs of densely populated urban areas.

The following pages take a road less traveled. Ancient constitutional institutions in the United States are suffering from severe wear and tear. Nevertheless, American driving habits cast doubt on Levinson?s assumption that repair or replacement is the rational response to faulty cars or undemocratic constitutions. Many Americans operate vehicles with bad brakes and slick tires. Few people buy cars on an annual basis, even though next year?s model promises improved safety. These decisions to drive a comparatively unsafe car are often grounded in reasons that might justify decisions to forego repairing or replacing an analogously flawed constitution.

Servicing is rational only when persons can afford the costs, trust their mechanic or dealer, and have reason to believe performance will be substantially improved. Replacing or repairing constitutions and cars are not costless. Citizens with other pressing personal or political needs might be best off spending scare resources on food or other social issues. Constitutional and car mechanics are not perfect. Persons may conclude that the persons most likely to perform needed repairs will be more interested in lining their pockets than improving the product. Constitutions and cars may not be susceptible of long term improvement. Good faith brake and constitutional jobs may prove so temporary a fix that persons are better off using the constitutions and cars they have than attempting to obtain newer product lines.

Full post as published by Balkinization on March 31, 2009 (boomark / email).