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  • Running Cars, Constitutions and Metaphors into the Ground
  • Mark A. Graber (bio)

Professor Sanford Levinson frequently analogizes the Constitution of the United States to a vehicle that desperately needs repairs. “[R]elying on the present Constitution,” he writes, “is similar to driving a car with very bad brakes and slick tires.”1 In his opinion, the Senate, Electoral College, presidential veto, lack of emergency provisions, and Article V are the constitutional equivalents of worn pads and leaky valves. No rational person, Levinson asserts, would drive a car so badly flawed. Similarly, he concludes, no rational American should support governance by such an undemocratic constitution.

Much commentary on Our Undemocratic Constitution implicitly challenges the automotive metaphor. The Constitution of the United States, supporters profess, is not really as bad as Levinson would have us believe. What Levinson perceives as outdated parts are, in fact, time tested systems for preserving individual rights and maintaining social stability. Hard to amend constitutional provisions prevent transient majorities from governing in ways that oppress minorities. The presidential veto guarantees that legislation is supported by the one governing official who must run a national campaign. The Electoral College ensures that presidential campaigns are national and do not focus entirely on the needs of densely populated urban areas.

The following pages take a road less traveled. Ancient constitutional institutions in the United States are suffering from severe wear and tear. Nevertheless, American driving habits cast doubt on Levinson’s assumption that repair or replacement is the rational response to faulty cars or undemocratic constitutions. Many Americans operate vehicles with bad brakes and slick tires. Few people buy cars on an annual basis, even though next year’s model promises improved safety. These decisions to drive a comparatively unsafe car are often grounded in reasons that might justify decisions to forego repairing or replacing an analogously flawed constitution.

Servicing is rational only when persons can afford the costs, trust their mechanic or dealer, and have reason to believe performance will be substantially improved. Replacing or repairing constitutions and cars are not costless. Citizens with other pressing personal or political needs might be best off spending scare resources on food or other social issues. Constitutional and car mechanics are not perfect. Persons may conclude that those most likely to perform needed repairs will be more interested in lining their pockets than improving the product. Constitutions and cars may not be susceptible of long term improvement. Good faith brake and constitutional jobs may prove so temporary a fix that persons are better off using the constitutions and cars they have than attempting to obtain newer product lines.

The Metaphor

The Constitution of the United States is not analogous to an automobile that cannot be driven or driven safely to the local supermarket. Professor Levinson does point out numerous constitutional inefficiencies and is correct to note the possibility of future crises should present constitutional practices not be altered. If, however, the standard for constitutional reform is imminent danger of irreparable harm, Our Undemocratic Constitution does not meet the burden of proof. The lack of an emergency powers provision may one day cause catastrophic harm, but that day is unlikely to be today or next week. The Senate may provide small states with unjustifiable benefits, but that harm is not equivalent to the imperiling a transport at sea necessary to justify a prior restraint on free speech.

The better analogy is to my 2002 Toyota Sienna at the time I was writing this essay. The mechanic down the street said the car needed to have a three-hundred dollar brake job. The dealer down the street offered to sell me a car with new and improved brakes for twenty-thousand dollars. My risk of brake failure in the near future had I ignored these appeals was relatively low. Nevertheless, my mechanic insisted that the brake job would reduce that risk substantially. The dealer claimed that risk would be reduced to near zero if I bought a new car. Both asserted, truthfully, that servicing or a 2009 model, respectively, would improve my gas mileage. I could probably drive the Sienna down to South Carolina, but doing so without repair would be more expensive and...


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