Fault Lines in the Constitution: The Framers, Their Fights, and the Flaws that Affect us Today

By Cynthia Levinson & Sanford Levinson

I was assigned this book for my Constitutional Theory Seminar during my first semester of my 2L year at Yale Law. I had to think a lot about it for class, and write a discussion post for my fellow students to read. My thoughts are reproduced below:

As I read Fault Lines in the Constitution, I found myself thinking that some of these fault lines seem fanciful. Specifically, Part VI’s suggestion that the Constitution should be amended so as to better prepare the country for widespread casualties or disabilities among political leaders seems like a trivial and unlikely problem to have garnered so much attention in a book about problems with a Constitution that fails to provide for basic human rights. I am young enough not to remember the events of 9/11, so although I know that they happened, and have read many accounts of what could have been on that fateful day had all the plane hijackers been successful in their missions, it is hard for me (having been raised in a country filled with security theater at airports) to imagine a series of events in which a substantial number of political leaders are injured. Then, Part VII’s hypotheticals hit like a ton of bricks. When those words were written, the questions about what powers the CDC, the president, and the states might have and take advantage of in the face of a national pandemic were likely just as fanciful as the questions from Part VI that inspired a television show. But, as the past several months have shown us, Part VII’s questions are not hypotheticals. The potential for diseases, like “influenzas that have killed millions, [and] can be spread by people who do not yet show signs of being sick” has been realized, and the fault lines in our country that COVID-19 has disturbed have undoubtedly brought us lower than we has been in decades (pp. 208). Strangely, however, it seems to me that the problems presented in Chapter 19 are the opposite of the problems that COVID-19 has brought to the surface in the US. Fault Lines discusses our republic’s confusing, overlapping, and potentially insufficient powers that can be used to respond to a pandemic. I think the authors are encouraging the reader to consider how these powers could be made more organized, more uniform, and stronger, so as to better allow for emergency responses. But I don’t think it was a lack of power that hamstringed the government’s response to the COVID-19 pandemic. Instead, it was the lack of any desire to use that power. While other countries declared emergencies and took action to address the spreading pandemic, the United States languished largely in a state of inaction (aside, perhaps, from the local action taken in New York City and California) not because of legal hang-ups, but because the leader of the federal government felt that no action needed to be taken. This example, I think, highlights a more general concern that I have with the constitutional fault lines that Levinson and Levinson discuss: by focusing on the small, structural problems throughout our Constitution, I think the book misses the large, substantive problems that most Americans have with the document. I—and I think most people—am much less interested in whether a man born in Canada can successfully achieve presidential office than I am interested in whether there is anything in this old document, anything at all, that requires our president to take serious action when thousands of American citizens begin dying because of a preventable disease. In short, I think focusing on the Constitution’s fault lines can be a fun political science exercise, but I think it falls short by neglecting to discuss the gaping holes in the Constitution, caused, I think, by our legal system’s love of negative rights instead of positive ones. I understand that these arguments are likely more politically charged than arguments about the appropriate age for senators, but I think that such questions constitute the Marianas trench of our Constitution and are therefore worthy of discussion in a book about fault lines. I look forward to thoughts of my classmates and my professors about the place for requirements, not just updated restrictions, in our country’s Constitution.