Balkinization: Fall Reading I: Our Undemocratic Constitution

Fall Reading I: Our Undemocratic Constitution

Mark Graber

Readers of Balkinization (and numerous academic listservs) will no doubt be familiar with Professor Sandy Levinson's frequent phillipics against the Constitution of the United States. Fortunately, Sandy has recently converted these polemics into a fascinating book, OUR UNDEMOCRATIC CONSTITUTION: WHERE THE CONSTITUTION GOES WRONG (AND HOW WE THE PEOPLE CAN CORRECT IT). Sandy can take full responsibility for convincing readers that they must crusade for a new constitutional convention. As his acknowledgements indicate, I plan to sit out that movement. Nevertheless, a great many reasons exist for reading this fascinating and very readable manuscript beyond the Millian claim that reading attacks on established truths can promote vital reminders of the foundations of those truths.

The persons responsible for the Constitution of 1787 (and, less clearly I would argue, the persons responsible for the Constitution of 1868) were far more concerned with the structure of government than enumerated powers or enumerated rights. The single most important sentence in THE FEDERALIST PAPERS declares, "all observations founded upon the danger of usurpation ought to be referred to the composition and structure of the government, not to the nature or extent of its powers." This concern with institutional design helps explain why the framers were very specific when establishing the rules for staffing the federal government and the rules for making laws, but fairly vague when specifying the powers of the federal government and individual rights. The framing idea was simple. If the rules for staffing the government and making laws privileged the selection of persons with particular virtues (intelligence, a good sense of public opinion, an understand of rights, a desire to compromise) and made sure they remained virtuous in office, enumerated powers and enumerated rights were unnecessary. If governing officials lacked the appropriate virtues, enumerated powers and enumerated rights were unlikely to provide much restraint. The specificity of these rules has an important implication. We cannot interpret around them. As Sandy points out, any competent law professor can explain why the constitution incorporates either the Democratic or Republican vision of civil rights. No competent constitutional interpreter has explained why the constitution really sanctions a parliamentary system. And significantly, the extent to which the constitution protects abortion, limits presidential war-powers, guarantees state autonomy, etc., is more likely to be influenced by whether the structure of government is biased towards persons with the appropriate values than by the precise constitutional text. If the structure of the Senate favors the West, and western state majorities are more likely to be libertarian than eastern state majorities, then the constitution is likely to interpreted as more libertarian than the fictional median voter might prefer.

OUR UNDEMOCRATIC GOVERNMENT demonstrates that the Constitution is no longer functioning as the framers expected or generating outcomes consistent with more contemporary principles. Rather than privilege consensus outcomes as originally intended, the electoral college and practice of elected all national officials in local elections more often that not promotes extremism. Worse, the combination of electoral college, Senate, and gerrymandering have permitted the United States to be governed by a fairly extreme coalition that does not even have majoritarian support. It is a fair constitutional response to some of Sandy's claims that the constitution was not designed to be democratic. Nevertheless, the constitutional was clearly not designed to privilege the elite enterprisers and moralists that now control the Republican Party.

These observations are of enormous value, even if we decide not to abandon the constitution because the costs of constitutional change are likely to outweigh the benefits. Consider the advantage of learning your car has poor brakes. One thing you might do is buy a new car or not drive. That, however, may prove impossible. An alternative is to avoid hills and be extra, extra careful when driving down hills. My preference is the latter. Americans need to work with the institutions we have and learn how to overcome their fralties (Steven Elkin has a very, very good book on this that might be the subject of a future post). Perhaps OUR UNDEMOCRATIC CONSTITUTION will inspire Easterners to fight harder when Westerners seek to use their Senatorial advantages to gain undeserved highway and anti-terrorist funds. Perhaps the work will make Americans more aware of the consequences of electing officials not particularly curious about the world they are governing. At any rate, Americans are likely to need a major culture change of some sort if our political institutions are to yield decent outcomes in the future and OUR UNDEMOCRATIC CONSTITUTION is a much needed wake-up call.

Posted 7:28 PM by Mark Graber [link]

Comments:

i agree with you that a constitutional convention might provoke a major crisis, especially with extremists on both sides of the aisle leading the fight. for this reason, my gut reaction is also to sit out that fight, and work not to create a new constitution, but to ensure that the one we have works better for all.

on the other hand, i don't agree with your analogy that this is similar to discovering that your car has poor brakes. other than being careful driving down hills or trading in the car or not driving it at all, there is another and more logical alternative... FIX THE BRAKES!

# posted by

phg : 8:18 AM

Some thoughts on a con-con:

1. We're currently at a level of polarization and paranoia where any close election seems to produce all manner of conspiracy theories to explain why the losing side "really" won. I can only imagine how ugly it will get when everything, bar nothing, is put up for grabs.

2. Further, there's no particular reason to suppose that a constitutional convention would produce the kind of result the lack of which has been driving complaints about the Constitution being "broken". For instance, Daniel Lazare's repeal of the 2nd amendment is extremely unlikely to come out of a con-con, unless it was wildly unrepresentative.

No, the most likely changes can be seen by looking at those measures which were so popular with the public that Congress had to make a show of acting on them, while being so unpopular with the political class that only a show could be permitted. A ballanced budget amendment, term limits, probably a marriage amendment.

3. The biggest problem with a constitutional convention is that the Constititution doesn't specify how the delegates are to be chosen. And Congress has gotten so reluctant to let the states have any say in the matter, that it seems to me almost a forgone conclusion that in the event a con-con was called, Congress would move to frustrate it. Either by simply refusing to respond to the call, (And counting on the courts to declare the matter "non-judiciable"; Another clause of the Constitution then bites the dust.) or be deciding that there could be no better delegates than... the members of Congress!

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However, I have reluctantly come to the conclusion that for all the risks, a constitutional convention is worth it, if only as a way to "reset" the judiciary's "constitution" to agree with the written one. I doubt even the most ardent "living" constitutionalist would dare to declare that the Constitution no longer meant what it did when ratified, if it was ratified last year...

# posted by

Brett : 5:27 PM

I doubt even the most ardent "living" constitutionalist would dare to declare that the Constitution no longer meant what it did when ratified, if it was ratified last year...

Sure, but wouldn't this re-set the "originalist clock" to the present date? Seems to me it would moot all debate until we got far enough into the future for differences to arise again.

# posted by

Mark Field : 6:03 PM

It would certainly "reset" the originalist clock with respect to any constitutional clauses that ended up being changed. And I fully expect that many parts of the Constitution would end up being altered to embrace current practice. Even where I disapprove of current practice on policy grounds, this is a good thing, representing a restoration of the rule of law... A rule which "living" constitutionalism has stretched to the breaking point, and beyond in some instances.

But I can't agree that the "clock" would be reset for clauses not amended. Rather, I'd take the position that, with a straightforward opportunity to adjust text to practice, any failure to do so in specific areas should be construed as a rejection of practice.

We have a con-con, I expect all those "changes" to be brought up as proposed amendments, and if they're not, it's a tacit admission that you don't think they're popular enough to be ratified.

# posted by

Brett : 9:43 PM