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Abstract

I am absolutely delighted, as well as obviously honored, to be asked to deliver this year’s lecture honoring the career of former Lincoln native and Nebraska College of Law Dean Roscoe Pound. One could speak of many facets of his career, one of the most important in the first half of the twentieth century. I want to draw a certain inspiration from one of his most famous interventions in public debate, his 1906 address to the American Bar Association on “The Causes of Popular Dissatisfaction with the Administration of Justice.” I will not be speaking today specifically about the administration of justice, at least in the sense that Pound used it to refer to the justice administered by courts. Much of my recent work has been motivated, however, by “popular dissatisfaction” with the operation of our political system, particularly at the national level.

I began my most recent book, Framed: America’s Fifty-One Constitutions and the Crisis of Governance, with a litany of quotations from a variety of pundits and analysts across the political spectrum who describe the contemporary national political system as “dysfunctional” or even, as New York Times columnist Thomas L. Friedman put it, “pathological.”4 A variety of recent polls conducted since I finished that book about fourteen months ago certainly suggest a similar and continuing public perception. For example, as I write these remarks at the end of July 2013, a compilation of polls taken throughout the month indicated that approximately 16% of the public “approved” of Congress, while a bit over 76% “disapproved,” a gap of 60%.5 As a matter of fact, Congress has generally not enjoyed majority approval since 1998; interestingly enough, the temporary high of over 80% was reached in the halcyon days immediately after September 11, 2001, nearly doubling the approval rate of only 42% in a poll completed on September 10.6 Since then, it has literally been downhill so far as the slope of approval is concerned. The current approval rate of nearly 15% is actually a quite dramatic jump, in one sense, from August 2012, when the Gallup Organization noted that the number had reached a “historic low” of 10%.

So with these remarks as the introduction that supplies the context within which I am thinking, I come to the significance of my specific title and its emphasis on “reflection and choice.” As important as the Philadelphia Convention was, it did not, in terms of legal fact, give us a new Constitution. All the Framers could do was to propose the replacement of the Articles of Confederation.37 Ratification was the prerogative of the delegates chosen by a relatively broad—at least for the time—electorate to attend the state conventions mandated by Article VII of the new Constitution.38 That Article itself was a radical rejection of the requirement in the Articles of Confederation that any amendment be validated by the unanimous consent of the state legislatures. It was just this guarantee, seemingly set out in Article XIII of the Articles of Confederation,39 coupled with their fear that the Convention would “detract even further” from the stature of the Congress established by the Articles, which presumably encouraged Rhode Islanders to refuse to send any delegates at all to Philadelphia.40 Rhode Islanders were, of course, absolutely correct about the potential consequences of the Convention but absolutely incorrect that Rhode Islanders would have the opportunity to exercise the veto ostensibly guaranteed them by Article XIII. Perhaps the single most important decision made in Philadelphia is indeed found in Article VII, inasmuch as it rendered irrelevant what Rhode Islanders thought of the new Constitution.

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