Levinson on Constitutional Reform, Part II

Anonymous

Part II of my post takes up the idea of "policy catastrophes":

To get a grip on the idea of a policy catastrophe, consider these examples:

1) Collapse and government bailout of savings and loan institutions in the 1980s.
2) Destruction of the space shuttles Challenger (1986) and Columbia (2003).
3) 9/11 terrorist attacks.
4) Inundation of New Orleans in 2005 after Hurricane Katrina due to failure of levees and subsequent inadequate government response.

Note: I invite you to come up with other examples. The Iraq War? The policy response to global warming? But remember: there must be a defensible link to the structure of our constitutional order.

These catastrophes share some characteristics. First, they are all policy outcomes in the sense that they are linked to the pursuit of certain policies by government. Second, no one defends these policy outcomes. While some might question the underlying programs, such as the regulation of banks or the building of space shuttles, no one contests that once government regulates an industry or builds a complex space transportation vehicle, the regulation should be effective and the vehicle should not fail. The savings and loan debacle, for example, cost taxpayers around $150 billion, a gigantic sum that could have been employed for many other useful purposes. If the debacle could have been avoided through some sort of reform, everyone would presumably be interested in at least investigating that possibility.

You may be waiting for me to link these disasters to some constitutional structure. Before I provide some suggestive leads, let’s reflect on the often-presumed pervasive background role that the Constitution plays in our government. My observation is that when policies go well, when government succeeds, the strength and stability of our constitutional system is usually celebrated. Matters seem to be quite different when policies go poorly. In that situation, the somewhat god-like role usually attributed to the Constitution suddenly disappears, replaced by incompetent administrators and feckless politicians. If, however, the Constitution is successful in structuring government action, then we are bound to investigate whether that structure is at fault when policies fail, especially when they fail spectacularly.

Experienced students of government policy know that when policies and program administration goes wrong, there is usually a trail (often long) leading back to Congress. Especially with respect to policies pursued over decades, Congress is still “keystone of the Washington establishment.” (Morris Fiorina’s phrase and see his book of the same name) If our “homeland security” and intelligence agency structure is fragmented, if key regulations governing the savings and loan industry are loosened, if NASA builds a space shuttle scientists scorned (whose components come from congressional districts scattered across the country), and the Army Corps of Engineers had to stretch a Louisiana flood control project designed to be completed in ten years over decades, it is usually because members of Congress wanted it that way.

The tendency of members of Congress to think about their own districts and states rather than the national interest is not new. But the advent of the administrative-welfare-spending state made an extraordinary difference to the impact members of Congress could have on national policy. At Time 1, the federal government assumed no responsibility for preventing or alleviating the consequences of natural disasters such as floods or earthquakes. Once the government did assume this responsibility at Time 2, it became accountable for its policy decisions. If, however, the structure of Congress involves making public policy “almost as an afterthought,” (Fiorina) then it is difficult to see how future policy disasters might be prevented. To be a bit more precise, if making national policy is a byproduct of what Congress is really doing – funneling money and serving as ombudsman to individual districts and states – we might consider a different structure that would encourage policymaking as such.

Critical analysis of our political system often amounts to high-minded hand-wringing over how the national interest is ignored. But the terrorist attacks of 9/11 and the aftermath of Hurricane Katrina should have demonstrated that this sort of analysis is a practical necessity. When poor policy choices or, more likely, the failure to choose results in the deaths of thousands of citizens and the loss of hundreds of billions of dollars (as has actually happened), the inquiry into the consequences of constitutional structure should not be regarded as theoretical or a parlor game about a constitutional convention most people think we are not going to have.

Presumably there is no such thing as a constitutional structure that will allow us to avoid all policy catastrophes. We are still not the angels that Madison invoked in his famous argument and our knowledge of the future is limited. But understanding that there might be a link between such catastrophes and constitutional structure might make us more likely to acknowledge that the Constitution is not exogenous to the problems and faults in our political system. The Constitution is not an impartial spectator, so to speak, but a participant with a set of biases, just like everyone else.

Sandy closes his book by lamenting the inflexibility of Article V. (159-66) He generously cites my work for the proposition that if constitutional change is not allowed because of the difficulty of amendment, then it may occur through other means, such as informal constitutional change through the political system and judicial interpretation. (22) Sandy makes the sound argument that there are limits to this sort of informal adaptation. If we want to adopt a parliamentary form of government in which executive officials serve in the legislature, formal change through Article V is the only way to get there. (163-65) This point applies to nearly all the changes Sandy advocates and explains his interest in making change through Article V easier.

An issue related to Sandy’s point is whether the inflexibility of Article V has had adverse consequences. Here scholars disagree. It is conceded by many that the U.S. Constitution is one of the more difficult constitutions in the world to amend. But Chris Eisgruber has defended the position (in his book Constitutional Self-Government) that having a relatively inflexible constitution increases the truly democratic character of a political order. I wish Sandy had said something about Eisgruber’s argument, but I will take a stab myself.

Any argument about the costs and benefits of the supermajority barriers to constitutional change in Article V necessarily involves some counterfactual speculation about what our constitutional history would have looked like had the framers not built the “iron cage” of Article V, as Sandy puts it. (165) But the question is not entirely about the effects of certain procedural changes. Several generations of Americans have absorbed not only the reality that formal constitutional change is quite difficult, but the normative view that it should be difficult, that we should not “tinker” with the Constitution. The proposal to make formal change through Article V easier thus concerns our “constitutional culture,” a set of views and understandings about how constitutional change should be made, just as much as it concerns alterations to the text of Article V. (as Sandy notes – see 163)

In today’s world, Americans associate prospective constitutional amendments with efforts to alter rights, such as abortion, gay marriage, and flag burning. Scholars interested in constitutional change believe the main issue lies elsewhere – with the still uncertain constitutional status of the New Deal, the administrative state, and the greatly changed role of the presidency after World War II, the Cold War, and now the “war on terror.” Certainly this issue is compatible with Sandy’s focus on the structural aspects of the Constitution, as opposed to its provisions concerning rights. In my experience, however, the existence of a continuing issue with respect to the constitutional legitimacy of the New Deal (as well as the other items mentioned) has proven hard for most legal scholars to grasp. There is a tendency to see these problems as involving questions of constitutional interpretation, not amendment or legitimacy.

Undermining this common view would require a very long detour into the byways of American political history. But in brief, important elements in American conservative thought never accepted the legitimacy of the New Deal. One of the main reasons, a concern which remains alive today, was that conservatives believed it was a change of constitutional dimensions that did not take place through formal amendment. President Roosevelt’s deliberate decision to treat the changes of the New Deal as matters for the Supreme Court and constitutional interpretation had important consequences that were not foreseen at the time. I should say immediately that it is far from clear that it would have been better, all things considered, for FDR to press a set of amendments on the country. There were many difficult issues involved and the right course of action was not obvious. The point I would stress is that there were costs, no matter what choice FDR made.

Many Americans believe that the Constitution does not cover every contingency and that it does impose meaningful limits on government action. It follows that there may be moments in history in which the only legitimate way to obtain constitutional power is through formal amendment. The failure to ratify the New Deal, as well as other important aspects of the contemporary constitutional system, through amendments has created an ongoing issue within American constitutionalism. Of course, some believe such views are the hobbyhorses of repudiated cranks like Barry Goldwater, but that was before the conservatives who supported Goldwater in 1964 came to power with Ronald Reagan in 1980. Nevertheless, the widespread view that amendments are dangerous has operated to suppress the kind of politics and political discussion that may be necessary to provide a full measure of legitimacy for government action in the post-New Deal state. For me, the democratic cost of an inflexible amendment process is the fundamental issue posed by the infrequency of amendment through Article V.
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