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Constitution, Schmonstitution

Attorney Andrew Cohen analyzes legal issues for CBS News and

Suddenly, the most sacred text in America is under attack from all sides. The Constitution was never meant to be a "suicide pact," says eminent judge and author Richard Posner. It's "undemocratic," says University of Texas law professor Sanford Levinson. In this time of terror we need a new one — an "emergency Constitution" — says Yale Law School guru Bruce Ackerman. And Richard Labunski, in his fine and timely book about James Madison, pretty much destroys the myth that the Founding Fathers were motivated solely by noble impulses when they crafted the new government's guiding light.

These unsettling theses are a measured distance from the roiling debate in legal circles these days over the Constitution's "original intent" and whether it alone should guide constitutional interpretation. That debate is over how the document should be construed by modern jurists. The debate entered into by the literary firm of Posner, Levinson, Ackerman and Labunski is all about whether and to what extent the document itself deserves the legal and political reverence it receives today. During a time of terror, when writers write lofty words about the need for a strong Constitution, the bright men identified above are talking about taking it apart.

7th U.S. Circuit Court of Appeals Judge Richard A. Posner, a Reagan appointee, argues in "Not a Suicide Pact: the Constitution in a Time of National Emergency" (Oxford 2006) that in a terrorism-induced choice between individual freedoms and collective security, the Constitution was never intended to side with the first at the expense of the second. Maybe it's Judge Posner's bitter reaction to what he perceives as judicial overreaching in constitutional decisions. Or maybe it's his professed disdain for "civil libertarians" whom, he says "are not always careful about history." Whatever the case, Judge Posner is ready to make malleable the protections contained in the Constitution; he's ready to have bedrock individual rights and protections ebb and flow along a sliding scale depending upon the scope of the crisis.

But at least the good judge is not calling our sacred text "undemocratic," which is as far as Professor Levinson is willing to go. In his new book, "Our Undemocratic Constitution: Where the Constitution Goes Wrong" (Oxford 2006), Levinson argues that it's time for us all to convene another constitutional convention (this time, with air conditioning) to undertake wholesale changes to what he says is an unworkable Constitution. "If I am correct," Levinson writes, "that the Constitution is both insufficiently democratic in a country that professes to believe in democracy, and (emphasis added) significantly dysfunctional, in terms of the quality of government that we receive, then it follows that we should no longer express our blind devotion to it." Them's fighting words!

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Professor Ackerman, the Yalie, also doesn't want to be "blindly devoted" to the document we all are taught in public school to be blindly devoted to. All he argues for, in his new book "Before the Next Attack: Preserving Civil Liberties in an Age of Terrorism" (Yale 2006), is that we come up with an "emergency" Constitution (really a series of new constitutional provisions) that will help guide us when the next terrorism attack surely comes. We need a new baseline law, Ackerman writes, "that allows for effective short-term measures that will do everything plausible to stop a second strike — but which firmly draws the line against permanent restrictions." Our existing Constitution isn't good enough for Ackerman because it is so vulnerable to cynical manipulation by our politicians and to neglect by average Americans.

Which brings me to the best book of them all — and the only one of the four worth remembering — and that is Labunski's unheralded "James Madison and the Struggle for the Bill of Rights" (Oxford 2006). The University of Kentucky journalism professor offers in mind-numbing detail Madison's efforts first to prevent a bill of rights from being incorporated into the text of the Constitution, and then his real politic realization that the Constitution itself only would be accepted by his fellow Founders if in the end it did include a bill of particularized rights and freedoms. To absorb the Madison book is to understand that the Constitution is neither the Ark of the Covenant (as Thomas Jefferson once famously said) nor a mere legal guidepost along the American way that ought to be dispensed with in difficult times.

It is instead, as Labunski laboriously points out, a document conceived and drafted by rich white men during the political moment of their lives; a document brilliant mostly for its ambiguities and its ability (thanks to generations of judges as polished and as responsible for our rule of law as any of Madison's gang) to foresee the potential, indeed, the destiny, of a changed and changing world. The Constitution is not an undemocratic document — indeed, it is as schizophrenically and unsatisfactorily democratic as the rebels were then and as we are now. It does not need to be replaced, even temporarily, by an "emergency" document that would leave to far lesser men (and women) the task that Madison achieved. And it certainly deserves better than to be manipulated, by zealous and unchecked executive branch actors, in the name of "national security."

I blast modern-day politicians all the time for lazily enacting vague and ambiguous legislation — essentially pawning off the most difficult policy choices upon judges, who then are criticized for making the policy choices that our legislators were supposed to make in the first place. But Madison and Company purposely, and I think with great forethought, pushed through an often vague and ambiguous Constitution and then a Bill of Rights not just because it was the best they could do given the political conflicts of the era but also because they had a certain faith that those of us living in future generations would manage the document with wisdom and care.

Their faith has been rewarded many times before, in eras darker than our own. It is important for esteemed scholars to try to scale mountains, even ones as high and mighty as the Constitution itself. And clearly the document isn't nearly as perfect or as ideal as we all have been taught to think it is. But it usually works. And if we were to suddenly discard it or its core principles now, literally under the gun, we'd be conceding a huge battle in the war against the terrorists. Now is not the time to attack the Constitution. Now is the time to defend it.

By Andrew Cohen

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