Levinson on Constitutional Reform

Anonymous

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.
Posted 10:15 PM by Anonymous [link]