Wednesday, December 06, 2006
Levinson on Constitutional Reform, Part II
Part II of my post takes up the idea of "policy catastrophes":
In the clear light of hindsight, I believe there is a great deal to be argued in favor of amending, rather than reinterpreting, the Constitution at the time of the New Deal. As you say, many conservatives consider the New Deal unconstitutional and would like to turn back the clock to before 1937.
I consider such views unrealistic. The long-run centralizing trends were irresistible. Large corporations were spreading production across state lines in a way no one in the 18th century could forsee. Advances in transportation and communications technology (railroad and telegraphs in the 19th century, cars and telephones in the early 20th) were "shrinking" the country. Mass media were creating an increasingly unified national culture. And people politically identified more and more with the federal government and less with the states. As the country became more integrated, a more centralized government was necessary and inevitable.
The advantage in amending, rather than reinterpeting, the Constitution was twofold. First, it would have prevented conservatives from denying the legitimacy of that increased centralization. Second, it would have established just what we did and did not want to federalize. The uncertainty in that regard creates serious problems to this day.
That being said, I do think it is wise to make amendments to the Constitution difficult. If our Constitution is more difficult to amend than other contries', it is also sparser. (It leaves to the discretion of Congress the entire structure of the executive branch and the courts, for instance). Our Constitution was made intentionally sparse in order to give it flexibility.
I believe the most valuable purpose served in making amendment difficult is to protect our Constitition's sparseness, and to allow the federal government the flexibility needed to deal with a complex world. Anyone who doubts that this is true need look no further than numerous state constitutions, which have become veritable Christmas trees of amendments, many of them seriously constricting governments and interfering with their function. And this problem is worst in the states that make their constitutions easiest to amend, i.e., the ones with the initiative.
In short, I believe the amendment process should, indeed, be used sparingly, for major realignments like the New Deal. A sparse Constitution gives the most room to maneuver, and too many amendments threaten that sparseness.
Perhaps this is obvious, but it certainly seems reasonable to me that since the creation of the Constitution itself required a national convention followed by ratification by three-fourths of the state legislatures - that is to say, a clear indication of national consensus - that it would follow that any change to the original should require an equal demonstration of national consensus.
In circumstances of perceived urgency or crisis, executive and legislative actions of questionable legitimacy, whether various New Deal acts, the Lousiana Purchase, internment of Japanese-Americans, etc., were made, the popular support of which muted and/or delayed any serious political consideration as to the legality or constitutionality of the acts. That extra-legal "flexibility", while less than ideal, is arguably preferable to having Constitutional Amendments allowing for any vague executive action that "promotes the general welfare" or authorizing the detention of citizens without trial to protect "public safety".
As to making the amendment process less difficult, all it would take is passing a single amendment changing Article V itself, allowing for, say, amendment by referendum or initiative. Having found myself in the voting booth trying to parse the language of state constitutional amendments pertaining to anything from what blueberry growers can do to whether certain specific equipment should be exempt from sales tax, I can say for myself that I lean in favor of old-style American republicanism.
I think that the interpretation of the commerce clause is a huge stretch and should be ratified by a change in the constitution.
The commerce clause jurisprudence signals to me that it is too hard to come to an amendment to the constitution. The federal government has taken over significant parts of State's Powers (which I'm not againt, by the way), but this has happened through interpretation of the commerce clause. I think the power of the federal government should be ratified by the text of the constitution.
In my opinion, the treatment of the constitution as living, derives from the inability to make amendments to the constition. The world isn't the same as in seventeenhunderderdsomething. The constitution has to change accordingly through constitutional changens, if not interpretation of the constitution to the changing world will change the meaning of the constitution.
The reason Article V doesn't get used isn't that it's "inflexible"; It's that it actually requires Congress to secure the permission of the states to make changes. And judicial reinterpretation does not. So why should Congress, which absent a constitutional convention originates all amendments, ever take the risk that it's desired changes will be rejected?
Living constitutionalism isn't the cure for a broken Article V, it's what broke it.
Priest, so long as we retain (Restore, really; It only takes 5 votes to "ratify" an "amendment" today.) the supermajority requirement, we won't see a laundry list federal Constitution; State constitutions accumulate excess amendments because they are in most cases about as easy to amend as enacting statutes.
I'd propose an amendment to Article V simply providing that any amendment ratified with the same language by the required number of states becomes effective, without regard to where it originated, Congress, the Supreme court, or the states.
Can you imagine FDR early in his term proposing an amendment concerning the commerce clause? What form might it have taken? Would such an amendment have anticipated the SCOTUS decisions that came down without a formal amendment during FDR's terms? Would the public (or even the constitutional scholars) have understood the nuances of such an amendment? The key word is "commerce", which perhaps had a limited definition back when. But meanings change over time as circumstances change, as unforeseen events occur. Calling it a living Constitution does not demean it, as the Constitution is for the living who are entrusted to improve its application as circumstances change still more and there are more unforeseen events, for the benefit of future generations.
My old ConLaw Prof. Thomas Reed Powell must be laughing wherever old ConLaw Profs go.
What "nuance"? There's no nuance to the current "understanding" of the commerce clause": It's that Congress can regulate anything whatsoever, so long as it invokes the word "commerce", and the thing isn't abortion.
It wouldn't have been difficult to draft that as an amendment that everyone would have understood. It's merely that to state it clearly is to understand that the states would never have ratified the amendment.
@shaq: I agree with you that the constitution should adapt, but now we are left to argue that carrying a gun to school actually affects commerce.
I don't mind that FDR didn't ratify his expansive views back then, I suggest we do it now.
If it wouldn't have been so difficult, go back in time to the mid 1930s and give us a proposed amendment to the commerce clause for back then that everyone would have understood (and would now understand).
Perhaps with the benefit of hindsight, can you come up with an amendment that would ratify FDR's expansive views?
I would begin to say that the Federal Government can regulate interstate affairs instead of saying that it can regulate affairs that affect interstate commerce.
The interstate commerce case law now says that the federal government can in fact everything that has any to do with interstate effect, so why not put in in the constitution?
Then I would try to limit the power by excluding bills of attainder or actually regulations that seek to single out one state in particular.
That's a start, but specific amendatory language would be preferable. Your reference to regulating interstate affairs recalled Prof. Powell's discussion of the Mann Act of yesteryear: "Whoever knowingly transports any individual in interstate or foreign commerce ... with intent that such individual engage in prostitution, or in any sexual activity for which any person can be charged with a criminal offense, shall be fined ... or imprisoned not more than five years, or both." Prof. Powell suggested that guilt depended upon whether such transport was for "pure pleasure or purely for pleasure."
Contrast this with a Senate bill passed this August making it a crime to take a minor across state lines to help her obtain an abortion without having to notify her parents. (I don't know if this has become law as yet.) How might an amended commerce clause along the lines you suggest be applied to such a law?
I have a tax law background and relied heavily upon the writings of the late Boris Bittker. I learned that late in his academic career he focused on the commerce clause, writing a treatise with that title. It makes for very good reading on the history of the commerce clause that may not be gleaned from opinions of Justices Thomas and Scalia. Unfortunately, the emphasis upon the commerce clause had somewhat diminished, with the focus more on protecting individual rights under the Bill of Rights. It has been in more recent years that there has been the attack to drive the commerce clause back to the stone age of the original meaning of commerce. Consider the importance of free markets internationally as well as domestically to the economies of nations. This suggests that great care be taken in amending the commerce clause.
"This suggests that great care be taken in amending the commerce clause."
But who's talking about amending it? The people who want to return it to the "stone age" are trying to undo an "amendment" which was achieved without compliance with Article V, and which is now, and always will be seen as illegitimate by people who really care about the distinction between the rule of law, and the rule of lawyers.
Seems a simple rule: If you want to change the Constitution, draft an amendment, and send it to the states to ratify or reject. It has the advantage of requiring the amendment to be clear, allowing for public debate, and being the procedure the Constitution actually calls for.
I was talking about amending it.
I'll try to respond to your post tomorrow, Shaq. 6 hours time difference isn't helping
A bit late due to the time change, but I am interested in something in the original post which has not been addressed. There is a whole class of historical events which can be termed 'policy failures'. Roughly, we might try to characterize these as events which caused significant loss due to either failures or limitations of the original policy or to later changes which undermined the effectiveness of an existing policy. I note that most of the policy catastrophes presented (savings and loan bailout, destruction of space shuttles, and levee failures - 9/11 remains poorly understood) are fundamentally of the second sort: changes in existing policy undermined the original intent or effectiveness, with catastrophic results.
It seems to me that even when good laws exist, and good policies have been developed and enacted, the problems most frequently arise due to subsequent political disagreement over funding, entitlement, administration, etc. The fact that such disagreements are often promulgated by the policies political foes might also be worth noting.
Some time ago, I read a book about the development of nuclear power and the challenge of nuclear safety. (Beyond Engineering, Robert Pool, 1999) As witnessed by 3 mile island, the nuclear industry had a long way to go. Similar (non-nuclear) disasters are continuing, such as the recent explosion and fire at a BP plant in Texas City. The reasons for these disasters, or at least the events leading up to them, have many similarities. They also have similarities with the governmental policy catastrophies. Pool makes the argument that it is possible to create a culture of safety that very effectively prevents these failures, and he presents several examples. (unfortunately, I loaned my copy to a friend, so I'm reconstructing from memory here) The two examples that spring to mind are the airline industry, which has a phenomenal safety record and some schools of medical practice, in which bad outcomes have been aggressively reduced.
Basically, there are some very concrete ways of preventing these technological disasters, but they require a culture which is fully aware of the challenge. There is a parallel with governance: In both, the challenge is to develop a system (or policy) which is stable, effective and safe, yet remains flexible in the face of future technological developments, economic and regulatory changes, etc.
So we have a parallel with the constitution, which is a (sparse) set of rules which attempts to lay out a system of governance that is effective and stable, yet responsive and flexible. The failures of governance cited are primarily failures of stability that occurred because a political agenda (deregulate, launch now!, spread the cost) was applied inappropriately to an existing (working) system. The Iraq war is a different type of failure in which the power of the executive has been hijacked for personal vendetta and profit with the complicity of congress under the cloak of a culture of fear and a (largely imagined and highly leveraged) external threat.
Is this a constitutional problem? or a problem with a possible constitutional resolution? As pointed out by others, the constitution was framed before any of the technology that makes our current communication possible was even on the most futuristic horizon. The development of highly sophistocated technology, its impact on culture, and vice versa should not be neglected. The speed of things is increased, and the ability to play the system, in an Enron sort of strategy, is greatly increased by this rapid inter-connected technology driven system.
Based on this, I would rewrite the constitution in a different sort of way: give presidential appointees long terms (>10 years). Ineffective and highly unpopular appointees can be removed by a 3/4 vote in congress AND a 2/3 vote of their employees. This would radically change the cabinet and reduce the influence of the politics du jour on the running of the country. This would also (hopefully) shift the presidential interest away from highly political appointments toward choices on the basis of professionalism. Since the appointee would be in a long-term position, their goal would be to run an effective agency, instead of to protect their political hides, and those of their superiors.
One of the fundamental means of avoiding catastrophe is to make absolutely sure that the person at the top is presented with a range of opinions. This did not occur during the 'group think' of the Bay of Pigs, and it has not occurred under this administration. Under the current system, 'group think' is all too frequent. The president is surrounded by his/her own appointees, usually of his/her own ideology. Making appointments for longer terms would alter this spectrum of advice, and limit the power of the presidency.
Whether or not this would have made the New Deal impossible, I'm not sure.
Suz, wouldn't your proposal have the effect of diminishing Presidential responsibility for the disaster? If a President were "stuck" with advisors s/he didn't want, s/he could always blame them for any missteps. At least under the current structure there's no doubt at all who's to blame.
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