Tuesday, December 05, 2006
Levinson on Constitutional Reform
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:
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.
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"....
[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".
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