What is the Constitution's worst provision?

• Jurisdiction: United States
• Author: Post, Robert
• Date: 22 June 1995

I confess that when Sandy Levinson asked me to contribute to this Symposium I had a momentary flash of panic, the same searing sense of stammering inadequacy that always seems to well up whenever my ten-year-old daughter Amelia asks such pointed questions as "What is your favorite movie?" or "What color do you hate the most?" For someone like myself who perenially and professionally shifts among subdued shades of gray, celebrating nuance and complexity, such invitations to extreme and personal self-assertion are not only disruptive, they are downright painful. They flex muscles that have long atrophied.

Swallowing my anxiety, however, and accepting the assignment, I first faced a conundrum. What, after all, should count as the Constitution? I have in the past been critical enough of First Amendment doctrine that I have seen as deeply mistaken. But should such doctrine be treated as the Constitution for purposes of this Symposium? Probably not, because the question we have been asked to answer seems in its premises to point toward a specific and contained document, the one generally printed at the beginning or end of constitutional law casebooks. In this sense the question appears to embody an implicit distinction between amendment and interpretation.

Perhaps because this distinction has relatively little meaning in the areas in which I work...