Writing in Bloomberg yesterday, Cass Sunsteinformer Administrator of the White House Office of Information and Regulatory Affairs – colloquially known as President Obama’s “Regulatory Czar” – penned an editorial about current movements to alter the Constitution, and the conflicting views of the Founders on the matter.

While Sunstein focuses on recent arguments by the Left in favor of amending the Constitution, from Nancy Pelosi on campaign finance regulation to Justice John Paul Stevens on any number of areas – intentionally or unintentionally ignoring the movement by some conservatives and libertarians to alter the Constitution — he uses these stories to draw out the greater debate over Constitutional change that he feels is best embodied by James Madison and Thomas Jefferson.

Cass Sunstein (nyu.edu)

Cass Sunstein (Image Source: nyu.edu)

Sunstein argues:

“Where Madison favored constitutional stability and distrusted popular passions, Jefferson welcomed fundamental rethinking by We the People.”

According to Sunstein, Madison:

“thought that constitutional change should be reserved for “great and extraordinary occasions.” He insisted that “frequent appeals would, in a great measure, deprive the government of that veneration which time bestows on every thing, and without which perhaps the wisest and freest governments would not possess the requisite stability.”

The far-seeing Madison believed that if we want people to venerate our constitutional order, we will need an old rather than a new constitution, and we should avoid a lot of amendments.

He was even more concerned about populism — the “danger of disturbing the public tranquillity by interesting too strongly the public passions.” Madison feared that amendments would disturb, rather than maintain, “the constitutional equilibrium of the government.”

Jefferson on the other hand

“argued that “no society can make a perpetual constitution, or even a perpetual law. The earth belongs always to the living generation.” Every constitution, he held, “naturally expires at the end of 19 years. If it be enforced longer, it is an act of force, and not of right.”

In 1816…Jefferson lamented, “Some men look at constitutions with sanctimonious reverence, and deem them like the arc of the covenant, too sacred to be touched.” He feared a situation in which people would “ascribe to the men of the preceding age a wisdom more than human, and suppose what they did to be beyond amendment.”

…When “new discoveries are made, new truths disclosed, and manners and opinions change with the change of circumstances, institutions must advance also, and keep pace with the times.”

On Jefferson’s 1816 lament, it bears noting that Sunstein leaves out Jefferson’s preface that “I am certainly not an advocate for frequent and untried changes in laws and constitutions.”

James Madison and Thomas Jefferson. (Image Source: tenthamendmentcenter.com)

James Madison and Thomas Jefferson. (Image Source: tenthamendmentcenter.com)

Sunstein continues his article by somewhat curiously or at least debatably arguing that since the 1950s, progressives have acted like Madisonians, while conservatives have acted like Jeffersonians.

According to Sunstein, progressives have opposed constitutional change and “emphasized the risks of public passions, endangering what they see as fundamental rights, and…drawn directly on Madison’s argument for constitutional stability.” Conservatives in Sunstein’s view have stressed “the importance of democratic self-rule, many have supported amendments to allow state governments to forbid abortion and flag burning, to bar courts from making states recognize same-sex marriage, and to allow school prayer.”

Sunstein does not address a couple of arguments that critics might level at him on this view, including:

  • The notion that much of the perceived “activism” by conservatives might be attributed to federal (or state) overreach, potentially inconsistent with the U.S. (and/or state) Constitution(s)
  • The related notion that movements to devolve federal power would likely have been justified on the grounds of states’ (or individual) rights, as enshrined by the Tenth Amendment of the Constitution
  • The fact that progressives have been working to fundamentally transform America since the beginning of the Obama presidency (and truth be told since the beginning of the progressive movement) — a transformation sought by all means, but which has been accomplished largely without amending the Constitution itself

On this last point, regardless of whether we take a Madisonian or Jeffersonian view with respect to Constitutional change, the point is that the political system can be transformed if the public so wills it, irrespective of whether or not we amend the document. Such a view would render Sunstein’s argument somewhat moot. Under this line of thinking, one could argue that the Constitution in and of itself is meaningless if the culture cannot sustain it.

In any event, the former “Regulatory Czar” ultimately argues that:

“In the scope of U.S. history…Madison has proved the wiser. In part because of its original design, and in part because of judicial interpretations, the Constitution combines stability with flexibility. Most of the time, We the People have been able to respond to changing values and circumstances without changing the founding document.

In seeking to reserve amendments to “great and extraordinary occasions,” Madison got it right.”

Do you agree with Prof. Sunstein’s take on the Madisonian versus Jeffersonian view of Constitutional change?

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Editor’s Note: For those interested, a related but separate theme is reflected in Yuval Levin’s recent book “The Great Debate: Edmund Burke, Thomas Paine, and the Birth of Right and Left,” which covers the centuries-long debate between radicals and conservatives, as embodied on the one hand by Thomas Paine, and the other Edmund Burke, respectively.

In context of all of these debates of course, definitions are important. There’s a fine distinction between the ideology embodied by the words “conservative” and “radical,” and the tactics employed by “conservatives” and “radicals.” Depending on how the pendulum of society, and thus the political system swings, “conservatives” might have to become “radicals” to restore the system to their view of what is Constitutional, for example.

Similarly, with respect to Sunstein’s argument, there’s a distinction between a Madisonian and Jeffersonian view on whether one should alter the Constitution in theory, and what Madison and Jefferson might advocate in practice in a scenario in which they perceived that the fundamental tenets of the Constitution were under attack.