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Stanford historian calls for Constitutional change

The Humanities at Stanford

In light of recent Supreme Court decisions on same-sex marriage and healthcare subsidues, constitutional law has come under scrutiny these past few months. Public debate has erupted over exactly what the U.S. Constitution guarantees its citizens. Stanford history Professor Jack Rakove, nationally known for his deep understanding of the U.S. Constitution, its history and its central role in American life and politics, says that its important for American citizens to understand how ordinary cases can develop into constitutional issues. 

And what better way to understand the Constitution's influence than to examine its history? To that end, six lectures from his recent course at Stanford, "The Constitution: A Brief History," are now available on the Stanford YouTube Channel.

"We have a political system which is deteriorating into a mess for a variety of reasons," says Rakove, who won the 1997 Pulitzer Prize for his book Original Meanings: Politics and Ideas in the Making of the Constitution

"Shouldn't Americans be able to think rationally through some processes of collective deliberation, about what a different system should look like?" Rakove asks his students in a course he taught this winter.

The course broadly surveys the Constitution, from its Revolutionary origins to contemporary disputes over its interpretation. 

As Rakove reminds his students, the idea that the U.S. Constitution defines our political and civic identity is familiar to most Americans because we are taught from childhood to venerate the document. But what Rakove really wants to impress on his students is what a radical experiment the Constitution was, an attempt by the founding fathers to create a new set of institutions to govern the nation. 

"The origins and execution of this constitutional experiment mark a truly innovative and critical moment in world history" Rakove says. However, he also insists that understanding the remarkable novelty of the Constitution should not prevent us from thinking about it critically. 

With that in mind, Rakove's course visits pivotal points in constitutional history, ranging from the early myths associated with the Constitutional Convention of 1787 to the question of the electoral college's legitimacy after the Bush vs. Gore decision in 2000. In his course and in his research, Rakove uses the historical origins of the constitution as a consistent point of reference. 

Rakove, who has published extensively about the American revolutionary period, is an expert on originalism, the practice of interpreting the Constitution by a fixed set of the original framers' intentions. His research addresses the complexity and controversy of asking what the U. S. Constitution originally meant and who now understands its meaning best. 

"Deeply problematic" laws

In the final recorded lecture of the series, "Time for a Ticklish Experiment," Rakove points to major aspects of our political system he would be happy to see altered tomorrow: the Senate filibuster, the length of Supreme Court appointments and the Electoral College. He describes them as "deeply problematic in a fundamental, constitutional sense." 

When it comes to Senate filibuster, Rakove says Senate debates are so prolonged that they actually obstruct decision-making. He sees the barring of decision-making as unconstitutional and a violation of the original intention of the rules of debate and decision. 

Rakove also takes issue with lifetime Supreme Court appointments and suggests shortening lifetime terms to 18 or 22 years. It would be more equitable, Rakove suggests, because "the judicial appointments process now operates to produce politically reliable judges and political preferences are the dominant variable driving judicial behavior."

Rakove has also written and spoken publicly about Electoral College Reform ever since the presidential election of 2000, when Al Gore's plurality in the national popular vote failed to produce a majority of electors.  

"The persistence of a state-based system for presidential elections not only violates the basic democratic principle of one-person, one-vote, it also leads to the de-legitimization of the presidential power," he says. 

Rakove explains to his students that following the one-vote, one-person rule out to its logical conclusion means that all votes should be counted equally. A vote cast in California should have the same value as a vote cast in Wyoming. If we abolished the Electoral College, Rakove further argues, we would have an election that is truly national and that would be healthy for us as a country.

In class he also argues that if a vote is a vote wherever it is cast, parties would not just campaign relentlessly in battleground states, they would "develop technologies and mechanisms to turn out their vote everywhere."

"We would stop imagining ourselves as a collection of red states versus blue states. It would also promote the political health of the presidential office," he says. 

Thinking like James Madison

By placing the constitution into historical context and always keeping its origins in mind, Rakove asks his students to think about our working constitution in "Madisonian" terms. He's referring to James Madison, one of the original authors of the constitution and the Bill of Rights who became the fourth president of the United States. 

Rakove has written about Madison extensively.  His upcoming book, A Politician Thinking: The Creative Mind of James Madison, sheds light on Madison as "a political thinker who did his best work, not when he was trying to persuade others to support his cause, or for publication, but when planning his own course of action." The book is drawn from a series of lectures Rakove delivered at the University of Oklahoma and will be published by the University of Oklahoma Press in 2016. 

However, Rakove also pointed out to his students that using originalist principles should not be the only approach to settling today's judicial questions; in fact, he is a vocal critic of viewing the constitution as set in stone. 

In the final recorded lecture of the series, "Time for a Ticklish Experiment?" Rakove calls special attention to "Federalist 49," an essay in which Madison reminds readers that the whole business of constitution-making was an inherently difficult, "ticklish" experiment. This notion was central to Madison's thinking, according to Rakove. He invokes Madison to argue that if the constitution's originators believed we were capable of constitutional deliberation and should be able to make improvements to our government, why don't we believe that now?

Rakove finds it interesting that the original constitution makers seem to recognize that fine line between "how many of our problems are determined by the structure of the Constitution versus how many are determined by the character of our politics."