Wisconsin Law Review Updates

The Wisconsin Law Review is pleased to announce its latest feature -- the WLR Online Symposium.

Symposium: Is it Time to Rewrite the Constitution?

Is the Constitution failing? In what ways and how should we respond? Is it time to rewrite the Constitution? On November 7, 2014, scholars from across the country met at the University of Wisconsin Law School to consider these crucial questions during a Symposium hosted by the Wisconsin Center for the Study of Liberal Democracy. Participants were invited to submit pieces on the topic, and Wisconsin Law Review is publishing the essays in its first-ever WLR Online Symposium. WLR Online is publishing the articles throughout the Spring 2015 semester, so please continue to check back for new additions.

Symposium Articles

Sonu Bedi

It is clear that we live in deeply partisan and dysfunctional times. Pew Research Center shows that in the last 20 years political parties are more divided than ever. Congressional approval is at a seemingly all-time low. According to a September 2014 Gallup Poll, only 14 percent of the American public expressed approval of what Congress is doing. A recent symposium at Boston University discussed the current crisis as “America’s Political Dysfunction.” The usual scholarly response is that it is time to change, rewrite, or even replace the Constitution. For instance, Sanford Levinson argues that we must amend what he calls the “Constitution of Settlement,” those structural provisions that govern voting, representation, and separation of powers. This Essay begins from the opposite perspective. Rather than focusing on changing or rewriting the Constitution, perhaps it is time to focus on affirming it. In doing so, I suggest one way we can use Article V to do just that, proposing a possible 28th Amendment to the United States Constitution.

Sonu Bedi is an Associate Professor in the Department of Government at Dartmouth College.

Keith E. Whittington

In this Essay, I simply want to offer some considerations on the process of constitutional change, with particular consideration of the problem of constitutional entrenchment. Most constitutions are understood to be supreme law within their particular legal systems, but they vary as to how entrenched they are against revision and change. Although constitutions should be resistant to very easy change, we might hesitate to endorse an approach to constitutionalism that seeks to deeply entrench constitutional provisions against future reconsideration.

Keith E. Whittington is William Nelson Cromwell Professor of Politics at Princeton University and director of graduate studies in the Department of Politics.

Stephen M. Sheppard

Every four years, the cry goes up to destroy the Electoral College. That cry is especially loud in years when a candidate is elected president who receives a minority of the votes. The election of a “minority president” happened with the election of 2000, but it had happened before. The Electoral College has elected three presidents whom a majority of the voters voted against: Rutherford B. Hayes in 1876, Benjamin Harrison in 1888, and George W. Bush in 2000. (A fourth president was also elected with a minority of the popular vote—John Quincy Adams in 1824—though that election was by the House of Representatives, the Electoral College not having produced a majority of electors.) Against these recurrent cries are occasional voices of dissent, arguing for one reason or another that majority rule is not the highest value of a republic. So does this Essay, arguing to keep the Electoral College, even were the rest of the Constitution subject to wholesale revision.

Stephen M. Sheppard is Dean and Charles E. Cantú Distinguished Professor of Law at St. Mary's University School of Law.