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12 Const. Comment. 191 (1995)
What is the Constitution's Worst Provision

handle is hein.journals/ccum12 and id is 199 raw text is: WHAT IS THE CONSTITUTION'S WORST PROVISION? Robert Post* 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 per- enially 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 assign- ment, 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, I should be clear that I rarely in fact read the document of the Constitution. Although the document creates a profound structure of governance, it has always seemed to me to contain an extraordinarily sparse and haphazard collec- tion of rules for the management of that structure. Because this Symposium is not the proper occasion to assess large and deep questions of constitutional design (such as whether the Constitu- tion erred in failing to establish a parliamentary system), I felt compelled to turn to this odd (and largely unfamiliar) collection * Morrison Professor of Law, University of California Law School (Boalt Hall).

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