Solution for ideological division: Revising the Constitution?

Could constitutional rights be a contributing factor in America’s ideological divisions?

That’s the argument made by Jamal Greene, author of “How Rights Went Wrong: Why Our Obsession With Rights Is Tearing America Apart.” Courts have reduced complex discussions about rights into zero-sum conflicts where a constitutional right overrides all other interests, writes the Columbia Law School professor and former clerk for Justice John Paul Stevens.

More recently, he has been involved in the Constitution Drafting Project. Organized by the National Constitution Center, the venture grouped constitutional scholars into ideological “teams” and tasked them with drafting their ideal constitutions. 

Professor Greene spoke with the Monitor about the project, as well as how America can move beyond the current climate of despair and divisiveness toward cooperation. This interview has been edited for length and clarity.

Could you explain what the Constitution Drafting Project is and why you wanted to be a part of it?

So this is an initiative of the National Constitution Center in Philadelphia that is trying to bring together people who come from different ideological orientations, to see if they can come up with some sensible revisions to the Constitution. The way it was structured was to set up three teams, each with a different ideological orientation – a progressive team, a libertarian team, and a conservative team [Professor Greene was part of the progressive team] – have them work independently to draft their own constitutions, and then see where they agree and where they disagree. That was kind of the first phase of the project. And I don’t know if this was intended from the start, or whether it arose out of the first phase, but the next phase was to have the teams get together and see if they can actually hammer out language in relation to the provisions or the potential amendments that they actually agree about. So that’s what we’ve done. There was a kind of mock constitutional convention in which we got together via Zoom and tried to work out actual constitutional language that all three of these teams could actually agree on.

What have you learned throughout that process?

I think the biggest take-home from the process is that quite a number of people across ideology actually can agree that there are aspects of the Constitution that are in need of revision, and about which revisions would be useful and helpful. We actually agreed on five amendments, some of which would be significant. There was disagreement about the language and exactly around the margins, and people had to make compromises. But it was an object lesson in negotiation, that people from different starting points can get together around something if they’re willing to be open-minded and engage with the arguments and objections made by others.

Can you give more details on that? What were you able to agree on?

One [amendment] would remove the limitation on a president to be a natural-born citizen. Everyone agreed that naturalized citizens should be able to be president, at least if they have lived in the country for a certain length of time. There was a second amendment relating to – and this gets a little bit inside baseball, but it’s quite important – what’s called a legislative veto, which enables the legislature to override an agency regulation without necessarily getting the approval of the president. A third amendment had to do with impeachment. We all agreed to lower the threshold for Senate conviction, but raise the threshold for House impeachment, so that they would both be three-fifths. [Under] the current Constitution the House can impeach with a simple majority, and the Senate requires two-thirds to convict, so we made both of those numbers three-fifths.

A fourth amendment basically imposes 18-year term limits on the Supreme Court, and [a] regularized appointment process so that there are two justices appointed for every presidential term. And then a final amendment that would change Article 5 itself, and change the actual amendment procedure in the Constitution. Right now it requires a two-thirds vote of both houses and three-quarters of the state legislatures. We changed that to a three-fifths vote in both houses and two-thirds of the states – and also an additional possibility of either two-thirds of the states, or states representing three-quarters of the population.

Why did you want to be part of this, and devote time to this? What do you think is the broader significance?

Well, I really do think that the Constitution, which is a very old document – [it] was written for a very different society than what we have today – is in need of significant revision. And I also think that if we are going to revise the document, it needs to be in a way that takes into account the views and commitments of a broad range of people. And it’s also important to show that it’s possible for people who have different views and attitudes and commitments to compromise, to negotiate, and not just yell at each other on social media or cable news. I think this is a good kind of object lesson in how one can actually come to agreement on things that we all can believe in, even if we start from different points. The country could use more examples of people coming to engage in what I think of as genuine politics, which are figuring out how to move forward even though you come from different starting places.

You talk about the current state of our politics. Is that related to our Constitution, and in particular how it’s interpreted right now?

They are related in the sense that one of the basic premises of the book is that we are a very pluralistic, diverse people, and the only way for a pluralistic, diverse people to move forward together as a single society is if they don’t understand themselves to have absolute entitlements against each other that conflict with each other, that they really do need to engage in political conversation. I’m trying to live that by getting together with people I disagree [with] about lots of things. That’s no reason not to try to come together around the things that we can agree on, and also, again, to compromise.

In reality our Constitution is famously difficult to change. You write about how the problem of the 21st century is the problem of the “rights line.” Can you give an example of rights conflicting, and what that’s meant for our politics and our country?

There are lots of examples of it. Abortion rights is a clear example, where there are entrenched sides, both of which understand themselves to be vindicating constitutional rights. Gun rights [and] affirmative action also in a lot of ways take these forms. Lots of conflicts over freedom of speech, between the freedom of the listener or the freedom of the speaker. And we tend to view those conflicts as if the job of the legal decision-maker is to choose one of those rights or the other when they come into conflict, as opposed to trying to mediate between them. And that’s a big part of what the book is about, is some strategies for mediating between rights.

As to how realistic the project is, as an academic, one engages in lots of projects that don’t have an immediate payoff, so in some ways this seems more realistic than some of the things that academics typically do. But I’m not so sure that there’s no practical possibility. It is incredibly difficult to amend the Constitution, but we also have a kind of despair about constitutional amendment, as if there’s just nothing we could possibly agree to. And this project shows that that’s not true. There are things that people could possibly agree to, and just developing some momentum toward that end I think is a productive thing to do.

What do you see as the stakes? The momentum that we have right now, that you’re trying to change, where do you see that heading? Why do you think we need a correction?

I think among the stakes is self-government itself. Governing oneself according to a 200-plus-year-old document that we can’t change means that we, in fact, are not governing ourselves. And so invigorating the idea that we actually have some agency in trying to decide what constitutional rules apply to our society is as important as anything in constitutional law. I’m just one person, but it seems to me that among the things that a single person can do to try to get at that problem, showing that it actually can be done, and then actually going out and doing it and trying to defend it, is among the more productive things one can do in the face of very steep odds. Whether we think of the Constitution as something that we have any power to change, it is the very stakes of self-governance, and I take those very seriously.