Balkinization: Off to the Schmooze

Off to the Schmooze

Sandy Levinson and I are about to go to Baltimore today for an annual gathering of political scientists and law professors interested in constitutional law, affectionately called the "Schmooze." Attendees submit "tickets"-- ranging from short thought pieces to long papers. There is lots of discussion, lots of food, lots of kibbitzing, and lots of fun.

The Schmooze has many interesting links to this blog: It was once run by Mark Tushnet when he was at Georgetown, but is now run by Mark Graber at Maryland, and Sandy and I are regular attendees; and indeed, most members of the blog have been involved with it at one point.

This year's theme is "An 18th Century Constitution in a 21st Century World." Sandy will present a precis of his new book, Our Undemocratic Constitution; I've submitted my article on Abortion and Original Meaning, and we've both submitted our joint piece on "Processes of Constitutional Change: From Partisan Entrenchment to the National Surveillance State."

One of the key issues we'll be talking about is whether our ancient constitution is adequate to the demands of 21st century war, technological change, and demographic shifts. On this matter, Sandy and I tend to diverge. Sandy's view is that so many structural features of our Constitution are defective that we need a new constitutional convention. I tend to be more optimistic about the Constitution's future.

War is one area that puts this to the test. Sandy has pointed out that we are, for the next two years, stuck with an unpopular President who, at least publicly, is determined to stay the course in his disastrous adventure in Iraq regardless of what anyone seems to think. Sandy has suggested that this may lead to a constitutional crisis. I think that there may well be considerable tension, litigation, and constitutional maneuvering in the next two years; but in the language of computer programming, I regard this as a feature, not simply as a bug. I believe that there are plenty of features in the existing constitutional system that will check the President's stubbornness, even if he is a lame duck. One of them, interestingly, is an innovation that the framers did not expect and did not desire: the creation of the party system, which was in effect recognized with the 12th Amendment. The desire of Republicans to regain majority status will cause many of the President's allies to pressure him even as they are supporting him.

Posted 6:51 AM by JB [link]

Comments:

How can Mr. Bush's allies "pressure him even as they are supporting him"? What precisely can they do? Mr. Bush sees Iraq as his legacy and indeed he may be right. How can a positive legacy include capitulation even disguised capitulation? Without a decisive victory in Iraq--which almost everyone except perhaps Mr. Bush sees as extremely unlikely--Mr. Bush faces different degrees of ignominy. His best bet is for both the American public and the terrorists to grow weary. That is even more unlikely. Surprises often occur. So no one can rule out a change of heart on Mr. Bush's part. But from what we can observe now what specifically can allies of Mr. Bush say or do to persuade him to stand down?

# posted by

Robert Justin Lipkin : 9:59 AM

Professor,

Color me "nerdy" but I am left wondering if there is any hope of 2l from a tier umpteen correspondence law school ever getting to something as ultra-cool as "the Schmooze." Sounds like exactly the cup of tea I'd one day like to call my own. Hope y'all have a blast. No doubt it will spawn some good posts. Maybe one of you could be induced to a little "live blogging"?

# posted by

Robert Link : 10:17 AM

As I am reading this week's argument in MA v EPA I thought of Sandy's energetic proclivity toward a new gathering of constitutional convention representatives as I read page 22 where the most conservative Justice on the Supreme Court admits in an unguarded moment, after garnering a laugh for some vaudeville, his own lack of expertise makes him chary of adjudicating the case; the exchange: [Conservative]JUSTICE: Troposphere, whatever. I told you before I'm not a scientist.
(Laughter.)
[Conservative]JUSTICE: That's why I don't want to have to deal with global warming, to tell you the truth.
Sometimes I have worried President Bush would seek to convene an executive Star Chamber, as the Iron Lady once suggested in relatively modern times in the UK; well, he got his MCA commissions, or at a minimum he obtained a chance to convene such; though MCs ostensibly are at least a slight distance removed from being a purely political court albeit within the military (though at least one current senator remains a JAG participant); and the appointed FISC also has fairly outlandish context when juxtaposed to the constitution, and FISC, too, is undergoing a remake, though who knows what clotureless ploy would be required to attempt to create a modern FISC in the lameduck 109th congress' remaining time in session.
My thinking went somewhere paralleling both the Justice cited above and SandyL's, wondering if yet another specialized court might be constituted as a superior venue for MA v EPA; call it a court of science and technology.
While I tend to agree that what Sandy sees as bugs are actually WYSIWYG bells and whistles that our forebears presciently wrote into the constitution, occasionally I wonder if like, for example, the bankruptcy court, there might be a science bench adapted to grasp the meaning of expert amici briefs. The clerk system at Scotus could cover this well; as congressional committees have workgroups of experts to help weed through testimony, and to contribute as speech writers. Something about a science court sounds like an idea Sandy might like, for its daring.
However, there are wide effects of judgments at Scotus level, certainly broader than mere science, though the technologies help us understand. In this respect, I found Scotus' considering the standing challenge quaint, as did the MA-AG, facing the prospect of 'losing 200 miles of coast'. When Microsoft was attacked for unfair business practices I tended to agree with the competitors, but somehow I maintained esteem for the software expertise that built that company and its operating system into one of the de facto industry standards. I thought Gore's principal mistake in his Scotus hearing was the penumbra of the Microsoft prosecution, but those specifics would be better discussed at a bar b q than on a website about constitutional law.

# posted by

JohnLopresti : 5:43 PM

@burnspbesq: I this you? As I've said to others, I'd drop you a frienly note off-blog, but your profile doesn't seem to include contact info. The pen thing caught my eye as just yesterday I finished my first cartridge in my first fountain pen, a Namiki/Pilot. I would welcome email from you, if you are so inclined...

# posted by

Robert Link : 7:13 PM