Balkinization  

Tuesday, December 05, 2006

Levinson on Constitutional Reform

Stephen Griffin

Master of the Blog Balkin has encouraged me to post some comments I prepared for the "schmooze" on Sandy Levinson's book. So herewith Part I:

Sandy Levinson’s book Our Undemocratic Constitution raises difficult questions about American constitutionalism that deserve to be taken seriously (references below in parens are to pages in the book). I hope it will be read and discussed in the patriotic and critical spirit in which it was written. Sandy may have difficulty, however, winning over his audience. In my experience, most people are unwilling to entertain the idea that the Constitution may have fundamental flaws (although they might concede a few “stupidities” or mistakes). This fall, I had students in my Constitutional Theory seminar read some selections from the book. They tended to view it as a series of complaints about the Constitution, not as a fundamental critique that would move them to advocate reform.

Perhaps the reaction of my students is due to the contrast between the breadth of Sandy’s initial claim – “that it is increasingly difficult to construct a theory of democratic constitutionalism, applying our own twenty-first-century norms, that vindicates the Constitution under which we are governed today.” (6) – and the specific undemocratic features of the Constitution he critiques. For despite events such as the 2000 presidential election crisis, the American public and my students do not appear dissatisfied with the specific points Sandy raises about unequal popular representation in the Senate, the operation of the Electoral College, excessive presidential power, life tenure for justices, and the high barrier to constitutional change posed by Article V. (6-7)

Sandy provides some evidence that the public is dissatisfied with American politics. (7-9) But this dissatisfaction might well be related to policy outcomes or the actions of politicians rather than going to questions of constitutional structure. Nevertheless, Sandy concludes his introduction by saying: “We must recognize that a substantial responsibility for the defects of our polity lies in the Constitution itself.” (9, emphasis in original) So he identifies two problems: the Constitution is undemocratic and dysfunctional. (9) Not an attractive picture.

Unlike my students, I am quite sympathetic to the project of constitutional reform. I am under no illusions about whether we are going to hold a new constitutional convention. However, thinking about the Constitution from what I call a “design perspective” can be useful as a heuristic device. It can provide new angles for understanding American constitutionalism. And it is in keeping with the founding generation’s belief that governing orders can be critiqued and reformed in a rational way.

To be clearer, a design perspective involves asking whether each significant element in our contemporary constitutional system could be justified if we were holding a constitutional convention. If you like, we can imagine that the constitutional convention is an ideal one, with unlimited time for discussion, access to all relevant information, its members perfectly representative of the American public, and so on. But the point is that features of our constitutional order that are normally accepted simply because they are endorsed by the document are put under critical scrutiny when we adopt a design perspective.

Assuming a design perspective does not necessarily avoid some paradoxes that have plagued various attempts over the years to advocate comprehensive constitutional reform. I think they also affect Sandy’s project despite the efforts he makes to mitigate or avoid them.

Consider first what normative lever we would employ were we suddenly cast into the role of a reform-minded delegate at a constitutional convention. Surely we would appeal to some attractive set of normative principles to ground our critique. Thus at the beginning of Sandy’s book, he appeals to democratic principles, counting on our allegiance to democracy as a form of government. Given the respect and veneration in which the Constitution is held, however, we can reasonably expect to be challenged no matter how attractive our principles. Are these principles external or internal to our political and constitutional traditions? If external, they are not likely to be persuasive as a basis for critique. If internal, then they are already endorsed and at least fulfilled in part by our founding document. To the extent already accepted constitutional principles can be used to critique our constitutional order, that cuts against any argument that our order stands in need of fundamental reform, at least through a convention or an amendment. It is more likely the principles can be fulfilled through changing the way the document is interpreted.

This is very schematic, so by way of illustration consider the reaction to Sandy’s proposal to eliminate the presidential veto. This proposal carries forward one of his themes, that the Constitution is undemocratic in some respects and puts too many obstacles in the way of needed legislation. Readers of a New Republic article in which Sandy summarized this proposal responded by reminding him that we live in a republic. Where does the force of this response come from if Sandy is assuming accurately, as I think he should, that we are all democrats? The ready answer is that democracy is only one theme among many in our constitutional order, although perhaps a predominant one. When Sandy’s readers cry “republic,” everyone conversant with the American constitutional tradition knows what they are talking about. They are invoking ideas such as separation of powers, checks and balances and warning against the dangers of unbridled majority rule.

Our constitutional tradition contains an element of skepticism toward the claims of democratic power. As long as these views persist, constitutional reform founded on democratic claims must first clear some ground. The idea that our constitutional order is a mix of democratic and republican principles must either be debunked (possibly through an analysis of how much that order has changed since the eighteenth century) or, if the view is that republican principles persist in a meaningful way, then those principles must be attacked through a normative critique. Doing so, however, will pose difficult questions about whether it is wise to abandon (or at least substantially modify) the separation of power/checks and balances system and, in addition, will place advocates of a reform in a difficult rhetorical position (as enemies of the republican founding generation).

A second paradox of constitutional reform relates to the need to provide a practical or policy justification. (37) As Sandy argues, surely one reason to consider constitutional reform seriously has to do with the apparent inability of the current political system to act on a range of important policy problems. (38) But presumably solutions to these problems are deeply controversial. Would they not have to be justified seriatim? Perhaps the political system has not acted because the problems are not as serious as the public supposes or there is no agreement on solutions. Further, if you advocate constitutional reform on the basis that it would make certain policy changes easier, then the desirability of reform becomes hostage to the desirability of those policies. Those who benefit from the status quo now have a wonderful incentive to oppose the reforms.

Ideally, structural or constitutional reforms should be justified by the changes they make to the policy system as a whole. At that point, however, it becomes more difficult to obtain agreement on reforms because of the likelihood of unknown side effects on policy. In other words, if we cannot know in advance what would happen to the policy system once we make structural reforms, then this would count against making reforms. If we know what would happen at the level of policy, then the paradox just described takes hold.

These paradoxes exist because constitutional reform in the contemporary world must address a complex governmental system (imperfectly described by the Constitution itself) that is an ongoing, self-sustaining enterprise. The framers did not have this problem. In the circumstances of the 1780s, there was a credible argument that the government under the Articles of Confederation was literally incompetent to perform essential governmental tasks. It could not levy taxes on its own, for example. It required the unanimous consent of the states to do anything. It appears that the only time we have extensively revised the Constitution is after a revolution (the American Revolution of 1776), or, at least, a quasi-revolution (the Civil War). It seems that absent such order-shattering circumstances, we may be incapable of taking on the task the framers assumed. Reasonable constitutional revision at regular intervals as Jefferson suggested (and Sandy endorses) may well be impossible.

Despite the second paradox, I think Sandy is right to pitch many of his arguments for constitutional reform at the level of policy. A justification founded on basic principles can too easily become mired in a debate over abstractions. But how are we to evade the policy paradox? One strategy that Sandy tries is to highlight the pervasive role that interest group deals play in our current constitutional structure. (25-26, 54-62) This is an important point. The framers certainly could not have foreseen the development of a state so well funded (through the income tax) that representatives could try to ensure their reelection through the earmarking of millions of dollars to their districts. It is the marrying of the interest group state to the structure of representation that is especially troubling from a design perspective. If we were redesigning the Constitution, we would probably try to arrange the appropriations process to minimize this sort of activity.

This argument goes in the right direction because it identifies policies that are in the interest of relatively few people (Sandy cites the Alaskan “bridge to nowhere”) yet impose a cost on everyone. This does not mean the argument would be persuasive. As arguments fly in our hypothetical constitutional convention concerning the undue influence of interest groups, some might remind themselves that they have benefited from legislation that others see as purely interest-based. Suppose, however, there is a class of policies that are literally in no one’s interest. Call these “policy catastrophes.” If there were such a class and we could link them to problems in our constitutional structure, we might have the kind of argument that truly gets to constitutional fundamentals. More on such catastrophes in my next post.

Comments:

Policy catastrophes?

How about unlimited growth, the Commerce Clause, states' inability (or unwillingness) to restrict corporations? Maine, for example, claims it cannot restrict incoming trash which then gets incinerated. Licensed to Kill - only slowly. Ditto climate change, toxic food, etc....

Natural resource depletion and everything that falls out of that makes the idea of Federal Constitutional Convention irrelevant. Life over the next few decades is going to get increasingly local, not global - though I hope we'll still have pepper and coffee. The fight will be between authority and community.

Sooner or later a Governor will call up the Guard (or something like it) to check a Federal move. If you were Governor, and the pressure in your gas lines was about to drop and 3/4 of your electricity depended on natural gas - and it was cold so people in the cities needed the gas to stay warm - how would the Commerce Clause figure? Those windmills on the hill or the dam in the river - will you let the power be sold to the highest bidder out of state while your own citizens freeze?

The Constitution is a suicide pact.

Authority doesn't need a Convention; authority trumps all rules.
 

It is a mistake to assume that rent-seeking (like the Alaskan bridge to nowhere) would suddenly disappear if our system of government were somehow made more democratic. If we are trying to reduce rent-seeking then the proper test is whether there would be more or less rent-seeking if our Constitution became more democratic.

I see no difference between Social Security, Medicare and the Alaskan bridge to nowhere. All of these policies are “in the interest of relatively few people …yet they impose a cost on everyone.” Social Security and Medicare are “policy catastrophes” in the making. No one knows how we will pay for these two programs in the coming years, but making our Constitution more democratic would only make these programs more untouchable. Furthermore, I would like to point out that these programs came from unified government, when government was at its most democratic. I think this is evidence that the types of policies that would gain/maintain support under an even more democratic Constitution would be the kind of populist income redistribution programs that are currently holding a gun to this nation’s head.

As I said in your Constitutional Theory class, the Constitution -as it was originally understood- was able to better deal with rent seeking special interest groups by limiting the types of programs that could be used to support them. Federalism -supported textually by the 10th Amendment- imposes its own substantive restrictions on the ability of special interest groups to engage in rent-seeking by limiting the places where the federal government can be misused.

Could you build a post road to nowhere under our Lost Constitution; yes. But our country is not in danger of being “bridged” to death, pork makes up only a small part of total federal spending. Pork makes the front pages when entitlement programs are breaking the bank. Professor in your next post would you please tell us how structural changes would be able to both deal with the policy catastrophe presented by our entitlement programs, while at the same time increasing our Constitution’s democratic nature.
 

As I see it, the need for a constitutional convention is growing rapidly and reaching critical mass. Other, modern democratic republics have been successful in re-writing their constitutions without collapsing the ongoing government, in much the same way that changes to current law are phased in, so I do not see this as the serious impediment. What concerns me is that reverence for the Constitution itself prohibits such a question in most people's minds; to question the Constitution is unpatriotic, which is unAmerican. Yet, many of the difficulties we run into are a direct consequence of the short comings of this document.

In particular, the checks and balances on the executive are insufficient. With each new administration, the power of the executive grows, and there is no way of undoing the precedents. There should be outcry about the lawlessness (senselessness, etc.) of the current administration, but there is not. True, the voting populous have done what they can in the last election, and the congress may now be able to exercise some influence, but where is the judiciary?

I am not comforted by the efforts of Judge Posnor and others to clarify (and thereby justify) the role of personal judicial value judgments in legal decision making. As always, the ends do not justify the means, and there must be some sort of accountability. However, the executive is clearly out of bounds and the judiciary seem to be falling in step just as readily as the previous congress.

I can't leave without replying to Nathan's comment. The idea that social security and medicare are holding us hostage and are only benefitting a few is completely ridiculous. These policies were created in a period of relative national poverty, when people who had previously had resources were impoverished by several coincidental events.

While these policies may look outdated to a student from a relatively wealthy background, they do not look outdated to the majority of the population, or to the rest of the world. Consider that ALL first world nations have similar policies, most of which are much more generous than ours. Consider that India, a rising nation in many respects, does not. Then consider the implications of a headline "pig eats child" (New Delhi, Nov 28). Perhaps you will begin to understand the consequences of not funding basic support for impoverished citizens. Compare that with the social consequences of NOT funding the bridge to nowhere? Does not compute.
 

Interesting approach. It is always good to try to imagine being behind a veil of ignorance (with regard to the current consitution) and try to see what an ideal consitution would look like.

I'd say that if the design view offers a good constitution, then we could discuss whether implementation is possible.
 

The veil of ignorance was of course coined by John Rawls.
 

The reason we no longer see constitutional amendments is that, thanks to living constitutionalism in the judiciary, the federal government no longer needs to seek the states' permission to alter the nation's fundamental charter. While the states have no leverage short of the convention with which to pry loose from Congress the amendments they want.

If we're going to see a con-con, it's likely to come about over some issue of the power ballance between state and federal governments, not over any of the issues I've seen Levinson complaining about. Though it might clear, in the process, the backlog of popular amendments Congress refuses to send to the states. (Ballanced budget, term limits, and so forth.)
 

In reading postings and comments on assembling a constitutional convention, I think of some of the movies I saw as a kid in the late 1930s and '40s about newspapers and in particular the frantic telephone call by a reporter with hot news: "Quick, get me rewrite!" Many constitutional scholars overly focus on originalism (with differing and sometimes confusing variations that serve their purposes) to focus upon original intent, original meaning, original understanding, original whatever du jour. Unfortunately, when reviewing microscopically what the framers said, and when they said it, there can be found many inconsistencies and contradictions as to what these scholars conclude therefrom. Shouldn't consideration be given to subsequent events and experiences in construing the Constitution with the passage of time rather than being locked in the time frame of hundreds of years ago? Rewriting the Constitution might remove some limiting provisions, but consider then the sense of originalism as it may be focused upon years later in construing a rewritten constitution, with so much more documentation regarding original intent, original meaning, original understanding, original whatever du jour, for scholars to consider? Instead of a rewritten Constitution, we might end up with a code, European style.

The Constitution is not broken. It is not perfect. But then what is? Perhaps we move ahead 10 feet and then slip back five feet at a time. Looking back over a couple of hundred years, most of the time the movement results in progress.
 

This comment has been removed by a blog administrator.
 

@Brett:
Being from Europe, I don't understand what you mean by "we might end up with a code, European style".

In the Netherlands, but as far as I know the same goes for all European Countries but the UK, we have a written constitution that can only be changed after a burdensome procedure (for us both chambers of parliament must agree, followed by elections and the newly elected chambers must agree with 2/3 supermajorities).

Even though there it is "hard work" changing our Constitution, it happens. My feeling is that it happens more often than in the US. But my impression is that we are more willing to change our constitution because we do not see it as a sacred document to to be touched but as a practical guide.

It would be absolutely unthinkable in The Netherlands to make a movie like National Treasure. Not that I am saying that being proud about your constitution is wrong...
 

One strategy that Sandy tries is to highlight the pervasive role that interest group deals play in our current constitutional structure. (25-26, 54-62) This is an important point. The framers certainly could not have foreseen the development of a state so well funded (through the income tax) that representatives could try to ensure their reelection through the earmarking of millions of dollars to their districts. It is the marrying of the interest group state to the structure of representation that is especially troubling from a design perspective. If we were redesigning the Constitution, we would probably try to arrange the appropriations process to minimize this sort of activity.

Frivolous spending is a function of a democracy having access to an enormous percentage of the People's wealth through taxation and borrowing without any real limits on spending.

There are interest group politics in every system of government from petitioning the King to lobbying elected representatives. Interest group politics are hardly more prevalent in republics than in democracies. Is there any evidence that the parliamentary systems which Professor Levinson admires have any less frivolous or corrupt spending than our Republic?

If you want to put a constitutional curb on overspending, think about working for an amendment to the Constitution capping spending at a percentage of GDP and barring new debt except under the vote of a super majority or during a declared war. Once you limit the size of the trough, the pigs will be forced to prioritize their feeding.
 

I think the relationship between revolution and revision that is sketched in part of this post is very interesting. It recalls to mind Bourdieu's "hysteresis of habitus" model of change; change occurs when the conditions of the field have been altered sufficiently that one's understanding of the field is no longer valid. The gap is crossed quickly as people scramble to adjust their understandings to meet a new reality, but such adjustments are never perfect. Noticeably substantive change would be more likely to occur all at once when the gap is large and sudden, and trickle when the gap is small and gradual.

I wonder to what degree the ability of the Constitution to control or predict moments of political hysteresis mitigates the visibility of the gap? I'm thinking of the electoral college problem in particular. Since the system is embedded in a deep history of constitutional and state law, it has taken on the role of a regular prop in the election process. Bush's victory in 2000 in spite of losing the popular vote are understandable and predictable within the electoral college framework (it takes the news anchors only a few minutes to explain it), so it lessens the wound. Rules are rules, right?

On the other hand, if Gore had declared himself winner by popular vote, refused to concede, and squatted in the White House insisting on his own inauguration, then that might have been a more powerful impetus for substantive change to the electoral system.

I'm not certain it would, but it is a very interesting relationship to explore, even just at the level of thought experiment. Nice post.
 

I think it is a little amnesiac to have this discussion after the last dozen years. Clinton vetoed the Estate Tax Elimination Act, the Common Sense Legal Liability Reform Act, the Nuclear Waste Policy Amendments Act, etc etc. The popular House alone would have drilled ANWR, ended the transfer aspect of Social Security, and so on. The focus on pure abstraction (sola abstractio?) is a little like a Pakistani Islamist I once heard, who said that Quranic governance would be much better than Clintonism, because there would be no venality or dishonesty allowed. Do supporters of proportional representation, for example, realize how likely that would be to make Christian conservatives permanent king-makers? You would get the pleasure of 40 Green representatives at the cost of never enacting anything unbiblical. I wouldn't have taken Clinton's side in the above cases but institutional constraints on radical change have helped "progressive" causes much more than hurt them in the last 20 or so years.
 

The purpose of all the checks and balances on the democratic process in our Constitution is to compel a super majority consensus across population and geographical lines before the government can act.

While this may aggravate folks who hold a simple majority of power in the elected branches, the checks and balances also keep transient majorities from performing mischief.
 

In my experience, most people are unwilling to entertain the idea that the Constitution may have fundamental flaws (although they might concede a few “stupidities” or mistakes).

I blame, in order, (1) The Federalist and (2) history teachers, including con law professors.

Let's face it, The Federalist is the greatest political sales job ever. Despite their personal dissatisfactions with the proposed Constitution, Madison and Hamilton gave good theoretical and practical reasons for every clause, making the whole document seem like a work of political theory rather than a series of compromises. Even on those rare occasions when their annoyance showed (e.g., Federalist 62), they made the "compromise" seem valuable in the end.

Americans ever since tend to view the Constitution through this lens. The education system reinforces this perception; students learn to justify the Constitution rather than to understand the historical background and the compromises which that entailed.

Rather than starting and ending with The Federalist, teachers should focus on the notes of debates in the Convention. Those demonstrate that the various provisions didn't have to be that way, that there were strong arguments on all sides, and that political deals were rampant.

This has particular relevance to Prof. Levinson's arguments. The structure of the Senate had nothing to do with any theory of good government. It was part of probably the most cynical and sordid political deal in all of history (and yes, I do remember the Molotov-Ribbentrop Pact). Out of that deal we got:

1. The undemocratic Senate which undermined republican government from the start and continues to do so today; and

2. The disgraceful pro-slavery features (3/5 clause, fugitive slave clause, 20 year grace period for the slave trade, etc.) which ended up costing us the Civil War.

Maybe that deal was worth it then; who knows what would have happened in its absence? But if students understood the nature of that deal and its consequences, I'm betting they'd be more willing to consider the idea of changes to the Constitution today.

What really needs to happen is for someone like a con law professor to sponsor a program called the New Constitution Project. Students (I'd start with law students) would spend time probing deeper into the historical background, including issues arising after the Convention. Their project for the year would be to write their own constitution, both individually and collectively. I'd be very interested in what they wrote and I'll bet the law review articles (or blog posts) would generate a great deal of discussion.
 

Allow me to respond to the posts by suz in London and Bart DePalma.

“The idea that social security and medicare are holding us hostage and are only benefitting a few is completely ridiculous. These policies were created in a period of relative national poverty, when people who had previously had resources were impoverished by several coincidental events.”

Saying when and why these policies were created does nothing to undermine my premise that US entitlement programs are holding us hostage. As I said in my post these programs represent an unfunded liability -a ticking time bomb if you will- that in the coming years will create a policy catastrophe.

“While these policies may look outdated to a student from a relatively wealthy background, they do not look outdated to the majority of the population, or to the rest of the world. Consider that ALL first world nations have similar policies, most of which are much more generous than ours.”

Ignoring the comment on my background (do you even know me?). I fully understand that these programs have wide support; that is an assumption that underlies my entire post. Given the problems created by entitlement programs, and the fact that they do have a wide level of support; how would we create a Constitution that is capable of frustrating popular sovereignty when it poses a grave danger to society. How do we avoid excess democracy?

“Perhaps you will begin to understand the consequences of not funding basic support for impoverished citizens.”

In the coming years this will be a non-issue because we will be unable to fund these programs –hence the political catastrophe. Reality aside, intervention by government to help the impoverished, is a way of treating the symptom while exacerbating the disease. There is general correlation between taxation and unemployment; the more government involves itself in the economy the worse the economy performs at supporting its impoverished citizens. Over the long term government cannot fund basic support for it impoverished citizens better then the unregulated market.

“Compare [funding basic support for impoverished citizens] with the social consequences of NOT funding the bridge to nowhere? Does not compute.”

It does compute, inefficiency is the evil that underlies both entitlement programs and the bridge to nowhere.

Having said all of this, I generally agree with the posts by Bart DePalma; but substantive limitations on democracy (like the type proposed by Bart) are what I feel Professor Griffin is opposed to. Spending caps and the like, are designed to sabotage democracy by placing certain things off limit for political consideration. Griffin is trying to expand democracy presumably placing most everything on the electorate’s table.
 

"Bart" DePalma sez:

[Stephen Griffin]: One strategy that Sandy tries is to highlight the pervasive role that interest group deals play in our current constitutional structure. (25-26, 54-62) This is an important point. The framers certainly could not have foreseen the development of a state so well funded (through the income tax) that representatives could try to ensure their reelection through the earmarking of millions of dollars to their districts. It is the marrying of the interest group state to the structure of representation that is especially troubling from a design perspective. If we were redesigning the Constitution, we would probably try to arrange the appropriations process to minimize this sort of activity.

...

["Bart]: If you want to put a constitutional curb on overspending, think about working for an amendment to the Constitution capping spending at a percentage of GDP and barring new debt except under the vote of a super majority or during a declared war. Once you limit the size of the trough, the pigs will be forced to prioritize their feeding.


Of course, this does nothing to address the problem identified (or even the problem that "Bart" professes to be so concerned about). All it does is make sure that "local" politics becomes more and more prominent, as the pigs go rooting for the fewer and fewer scraps, to the detriment of national priorities of less direct (and directed) benefit to any particular individual. Does it make sense for me to demand a 100% slice of pork versus my 2% slice in lean times? "Earmarks" are not discouraged by "Bart"'s suggestion we shrink the federal gummint to the size we can drown it in the bathtub. "Bart"'s pretending it will is nonsense ... but then again, Bart's real target is not the "earmarks" but the "Socialized Medicine"....

Cheers,
 

nathan said:

[suz from London]: “Perhaps you will begin to understand the consequences of not funding basic support for impoverished citizens.”

In the coming years this will be a non-issue because we will be unable to fund these programs –hence the political catastrophe...


Ummm, assuming your preferences, are you? You assume we won't be able to fund such, but that's far from obvious (in a nation that spends as much each year on defence as the next five nations combined, and which has one of the lowest tax rates around). Dpends on your priorities ... and your ethics. And it doesn't address Suz's point that there are costs to failing to support those in need as well, which should be factored into any analysis of what we can afford to "fund".

Cheers,
 

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