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
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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