Why I Did Not Sign the Constitution:
With a Chance To Endorse It, I Had To Decline

1987 was, of course, the bicentennial year of the drafting of the U.S. Constitution. The major bicentennial exhibit was in Philadelphia, at the site of the Bank of the United States. Designed by my close friend Richard Rabinowitz, it featured remarkable original documents. Yet perhaps the most remarkable - and thought-provoking - document of all was a very modern one: At the conclusion of the exhibit, visitors were invited to join the Framers, and add their own signatures to a long scroll beneath the Constitution.

In the last chapter of a book I published in 1988, Constitutional Faith, I discussed my reservations about signing. They derived, principally, from the dreadful connection between the 1787 Constitution and the institution of chattel slavery. And, of course, the original Constitution lacked a Bill of Rights.

Nonetheless, I ultimately did sign - in large part because in the 1850's, Frederick Douglass, the former slave who became the leading abolitionist of his time, supported the Constitution.

Another famed abolitionist, William Lloyd Garrison, had contended that the Constitution was a "covenant with death and an agreement with Hell." But Douglass argued instead that, correctly read, the Constitution was a rights-protective document - and more than this, one that was, at its core, deeply anti-slavery. If the Constitution was good enough for Frederick Douglass, I figured, it should be good enough for me.

But this summer, when faced with the same choice I had faced sixteen years ago, I found I couldn't make the same decision: I couldn't sign the Constitution now.

The "I Signed The Constitution" Project

I was put to the choice when, on July 3, 2003, I found myself in Philadelphia once again. This time, I was participating in the opening events of the new National Constitution Center, for which I had served as a member of a scholar's advisory committee.

The Center is quite magnificent, with a fascinating exhibit designed by Ralph Applebaum, a leader in his field. It is well worth visiting. The culmination of the exhibit is a walk through Signers' Hall, which features life-size (and life-like) statues of each of the delegates to the Convention. Many of the delegates are captured by the artist while holding animated conversations or, as in the case of Alexander Hamilton, striding forcefully forward toward George Washington - who quite literally, because of his height, towers over the room.

As with the 1987 exhibit, the visitor is invited to join the Signers by adding his or her own signature to the Constitution. (Indeed, if one logs on to the Center site, one is immediately notified of a major project during the month of September, co-sponsored with the Annenberg Center for Education and Outreach, which is called "I signed the Constitution." The site details all fifty sites, nationwide, at which citizens are invited to come and sign.)

Why I Didn't Sign the Constitution This Time

Unlike in 1987, however, I chose not to sign the Constitution this past July. What accounts for this change of mind?

It is true that I have become somewhat more Garrisonian in the past fifteen years - and thus less convinced by Douglass's more optimistic account of the document. But my hesitation to sign is not, in fact, explained by my concern that the Constitution, as a formal matter, is not adequately protective of rights that I hold important. Or, more to the point, I am confident that there is nothing in the Constitution that prevents legislatures from adopting the kinds of policies that I think would make us a better nation.

The real explanation is that I now believe that most of us--including legal academics like myself--have tended to pay far too much attention to issues involving rights, and, alas, far too little attention to what I now believe is a subject of at least equal importance. This is the extent to which the basic structures of the Constitution in fact provide a mechanism for effective governance. I believe that they do not.

Why the Constitution's Structure Is Deeply Dysfunctional

Increasingly, I see the Constitution as an "iron cage" of dysfunctionality. Law professors tend to ignore this problem because the most important parts of the structural Constitution are the least likely to be litigated, and legal academics are obsessed with what it is that gets the attention of courts. But this problem is nevertheless very real: A problem need not end up in court, to be serious.

Ironically, I think that one structural features that we would be well rid of is life-tenure of federal judges. Indeed, life tenure for members of the Supreme Court was picked as the leading "constitutional stupidity" by two leading scholars - Lewis LaRue of Washington & Lee, and Lucas A. Powe of the University of Texas - in a symposium on "constitutional stupidities." (It was later published as part of a book edited by Yale professor William Eskridge and me, Constitutional Stupidities, Constitutional Tragedies).

It is, however, probably not the most important of the Constitution's structural flaws. One feature that is more significant is that States have equal numbers of votes in the Senate - which gives the Rocky Mountain states, especially, a totally unwarranted stranglehold on important aspects of public policy. Another is the Constitution's provision for rigidly fixed terms of presidential office - which means that we can be saddled with patently deficient presidents until their time in office mercifully expires. And yet a third - and a true ticking time bomb - is the rule that deadlocks in the Electoral College (itself a questionable institution) are to be broken in the House of Representatives on a one-state/one-vote basis. Insanely, that rule gives equal weight to the one representative from Vermont or Montana, and the 52 representatives from California. (Only the California recall system is more lunatic!)

Moreover, consider some of the implications of a vital joint commission, organized by the American Enterprise Institute and the Brookings Institution, regarding the all-important topic of "continuity in government" following a major catastrophe. (I write this on September 11, 2003, a day when it is especially important to think about such possibilities.) What would happen if, say, most of the House of Representatives were killed in a terrorist attack? Does it really make sense, even assuming it is constitutional, to make the Speaker of the House (assuming as well that he or she is still alive) to succeed to the Presidency, should both President and Vice-President be killed, precisely when one might want to preserve whatever degree of stability might exist in the House?

Some of these are questions only of public policy. But some have constitutional implications as well, because, for example, the Constitution provides that the only way that vacancies in the House can be filled is through special elections and not, say, through gubernatorial appointment (as with vacancies in the Senate).

Is Article V the Worst of the Constitution's Stupidities?

But this latter point brings me to what is, in some way, though, the most egregious feature of the Constitution, Article V. This aspect of the Constitution alone justifies a decision to withhold one's signature, at least in 2003.

As a legal matter, Article V makes it next-to-impossible to amend the Constitution - which is itself a mistake. There has been no significant amendment of the Constitution since the Progressive Era, unless one counts the 22^nd Amendment and its two-term rule, which almost certainly is the explanation for Bill Clinton's not running for re-election as President in 2000. And as a practical matter, Article V tends to discourage any serious discussion of the Constitution's adequacy - precisely because it makes it appear that, if it is indeed inadequate, then there is nothing we can do about that.

Our Constitution has become truly Sartrean: Apparently, there's no exit. So why should I, or anyone else, sign such a document? The answer is: We should not. To be a good citizen is to resist participation in the civic ritual now taking place - and to adopt Nancy Reagan's wise counsel: Just say No!

The National Constitution Center is indeed a new marvel on the Philadelphia scene, well worth visiting and contemplating. But it would be unfortunate if it simply became a site of constitutional cheerleading.

Perhaps the most inspirational thing about the Constitution's actual, original signers is precisely that they were willing to learn from the "lessons of experience." They dared to junk the Articles of Confederation, and to replace them with what they thought were better structures.

We can admire their audacity and their courage without having to agree that they necessarily got it right for all time. We most honor them by doing what they did--thinking for ourselves, as they thought for themselves. And so we should not thoughtlessly add our own signatures to their handiwork, however fine it may be in parts. To do so only makes it ever harder to reflect about the adequacy of our own political system.