Balkinization  

Thursday, May 10, 2007

"Operating an Eighteenth Century Constitution in a Twenty-First Century World"

Mark Graber

Last December, the University of Maryland School of Law held a constitutional schmooze, a new kind of academic conference where the emphasis is on conversation rather than the delivery of formal papers. Our subject was "An Eighteenth Century Constitution in a Twenty-First Century World," a rather obvious reference to fascinating work being done by Balkinization's own Sandy Levinson and Kim Lane Scheppele, as well as numerous other scholars working on the borders between law, political science, history, and philosophy. The University of Maryland Law Review will soon be publishing some short pieces coming out of this event. I will be writing the introduction, but as a template for some ideas I produced this for our alumni newsletter. Given how often the issues appear on our blog, I hope people find the ideas interesting and provide feedback so I may avoid the errors below in the longer version.

Americans celebrate everything new but national constitutions. We praise all novelties other than novel constitutional provisions or novel constitutions. Our national reverence for an ancient, eighteenth century constitution does foster certain desirable political ends in the twenty-first century. A political culture which venerates inherited rules for choosing lawmakers and inherited rules for making laws is likely to be a stable political culture, and stability is the first virtue of political institutions. Still, even Edmund Burke did not favor blind worship of the status quo. Constitutional commentary limited to praising or perfecting the Constitution of the United States is likely to mask defects that should not be praised and cannot be perfected. At the very least, citizens who insist on conserving constitutions ought to be self-conscious about what is being conserved.


Recent scholarship on American constitutionalism highlights two distinctive problems with strict adherence to an eighteenth century constitution in a twenty-first century world, while discounting what may be a more disturbing failing. Citizens in the twenty-first century may reject some values underlying an eighteenth century constitution. Eager to demonstrate fidelity to the constitutional past, interpreters may imagine purposes behind constitutional institutions that the framers never imagined and which those institutions do not serve. An eighteenth century constitution may not address twenty-first century problems. Eager to preserve the authority of the ancient text, interpreters may engage in imaginative exercises about how white men in bad wigs would have answered political questions that were beyond their capacity to conceptualize. While these concerns with how citizens interpret the constitutional text are important, they may mask broader problems in the constitutional culture. The sort of citizenry that could successfully manage an eighteenth century constitution in an eighteenth century world may not be the sort of citizenry that can successfully manage an eighteenth century constitution in a twentieth-first century world. Scholars who worry about whether the constitution is failing the people might also worry about whether we as a people are failing the constitution.

As Professor Sanford Levinson famously points out in Our Undemocratic Constitution, prominent constitutional institutions were designed to secure ends most contemporary Americans regard as abhorrent. The need to accommodate slavery helps explain why the framers favored proportional representation in the House of Representatives, presidential appointments of federal justices, and the electoral college. The best justification of these practices at present is probably that all democratic institutions have their flaws and that fixed rules that meet some very low democratic threshold may be better than a more fluid system that can be easily manipulated by otherwise transient majorities. The high priests of American constitutionalism, however, cannot stomach the thought that the framers might have created a fairly stable constitution as long as they established any rules, no matter what those rules were. Thus, the electoral college is now considered to be a means for ensuring that candidates do not focus on a few large states, even though any high schooler of above average intelligence could devise a more democratic system for electing the president that served that or other ends now imputed to the provisions in Article II governing presidential elections.

Professor Levinson’s work, as well as recent studies on emergency powers by Professor Kim Lane Scheppele, detail how constitutional institutions in the United States, designed to organize eighteenth century politics, are often unresponsive to twenty-first century problems. The framers had little to say about the speech business, global warming or international terrorism, because they had little or no knowledge of the underlying political phenomenon. Again, the best justification for working within the existing constitution is that the text provides Americans with an adequate, possibly barely adequate, language for discussing twenty-first century problems, that the political energy spent creating new language may do little more than distract from substantive efforts to resolve these problems, and that whatever new language is adopted is likely to become as obsolete as the old language within a generation. Still, constitutional veneration skews constitutional analysis of contemporary problems. Canonical citations to The Federalist Papers are mostly harmless when constitutional commentators simply use James Madison or some other framer de jour as a vehicle for advancing what that commentator believes to be the best construction of executive power during the war against terrorism. The great danger is that such arguments foster the notion that Americans should do whatever James Madison really would do and so ignore basic realities that Madison got wrong. Consider how many commentaries blithely cite Federalist 10 for the proposition that mass political parties cannot arise in an extended republic.

The more fundamental problem with an eighteenth century constitution in a twenty-first century world is that an eighteenth century citizenry may lack the capacities necessary for any twenty-first century constitution. The framers recognized that republican constitutions require that the citizenry have some virtues, although as Madison pointed out, men did not need to be angels. Whether particular constitutional aspirations and particularly constitutional institutions are desirable depends on whether their publics are inspired by those aspirations and are able to operate the institutions in the prescribed fashion. An eighteenth century citizenry is unlikely to be able to manage a twenty-first century constitution. The twenty-first century constitutional order is more democratic than the eighteenth century order. This is true both in a formal sense (constitutional amendments have expanded the electorate, free speech rights are more broadly understood) and in an informal sense (politicians are more aware of public opinion and therefore are more responsive). Hence, a much higher percentage of the population must be motivated by fundamental constitutional aspirations. Political problems are more complex. Hence, a much higher percentage of the citizenry must have the knowledge necessary to determine how in practice fundamental constitutional aspirations may be realized. The eighteenth century constitution did not require the average American citizen to know much about Europe or even be aware that Asia and Africa were continents. The average citizen in the twenty-first century must have expertise in basic science, geography, and politics if constitutional democracy is to promote basic constitutional commitments.

Much evidence suggests that American citizens lack the capacities necessary to manage their constitution in a twenty-first century world. Consider the ease with which popular majorities became convinced that an alliance existed between Al-Quida and Saddam Hussein or the lack any public sense about the difficulties inherent in creating a democratic Iraq. Consider the difficulty scientists have had making Americans aware that global warming presents a grave threat to the environment. Consider the substantial bloc of voters who reject modern science and, when voting, seem more concerned with who loves who then with the secular problems of the day.

Contemporary calls for constitutional reform are too often rooted in the traditional populist contrast between good people and bad institutions. This dichotomy helps explain why those who favor working within the existing constitution are constantly charged with failing to trust ordinary people. Yet the evidence provides good reason for thinking that on matters of foreign policy, environment degradation, and basic decency, ordinary Americans lack the virtues necessary to manage a contemporary constitution. These observations do not justify a jeremiad against any constitutional reform understood as changes in the constitutional text. Rather, the argument is that unless more basic constitutional reform takes place at the level of constitutional culture, Americans are unlikely to have the capacities necessary to manage either an eighteenth century or twenty-first century constitutional text in a twenty-first century world.

Comments:

Bring on the Platonic guardians! just kidding.

Okay, let me see if I got this straight. On one hand, you postively refer to Professor Levinson's work decrying the insufficiency of democractic institutions and norms in our Constitution. On the other hand, the "people" aren't intellectually sophisticated enough to understand and deal with the problems of the 21st century. Quite a quandary.

So, more democractic when it aligns with your policy goals and less democratic "when the people really don't know what's best for them?"

How interesting . . .
 

i'm not sure that the issue raised in the post isn't that people aren't intellectually sophisticated enough to understand and deal with the problems of the twenty-first century from a constitutional standpoint, as they simply don't want to be bothered to deal with it on their own. in that manner, they intellectually outsource their opinions and views, and in the process get lost in their own voice.

my friends in the west are a perfect example. some decry the fact that most people vote for an image rather than a candidate. where i maintain my vacation home (state not mentioned, but it's where cheney claims to reside), i have a friend who is politically active and relatively aware of events in the world. he has grandiose opinions about various candidates. he screams that people in the area have no clue about what they are voting for in any given candidate, and as such, should not be allowed to vote until they demonstrate some understanding of what they are doing. a radical thought that most of us would not agree with. when it comes down to it, my friend usually parrots what bill o'reilly or sean hannity had to say the previous evening on television when it comes to a given current political hot potato. he just about idolizes what they say, and in turn, believes that liberals are out to destroy the world, with only the conservatives out there to protect him. when you ask him what he personally believes, however, he really is much more liberal than he would ever let on, but would never admit to it, yet he votes conservative, republican every time, even if he disagrees personally with nearly everything his candidate stands for.

other friends out there tell us they don't need to watch the news, because they get it from the pulpit every sunday. these are otherwise wonderful, intelligent people, whom i love dearly, but who just aren't inquisitive enough. in that sense, some of them do believe that there is an inviolate connection established between al quaeda and saddam hussein, because this is what they have been told. they have no desire to inquire for themselves.

in this sense, these people are incapable of dealing with the constitutional problems of the 21st century. it's not that they are intellecutally incapable. it's that they are inquisitivelly incapable. to be fair, there are people like this on both sides of the political fence, probably too many. the bottom line is that these people cannot deal with eighteenth or twenty-first constitutional norms or issues not because they aren't smart enough, but because they simply aren't motivated, curious, inspired, or whatever other adjective you want to use enough.

and it's in societies like this when you have too many people too willing to outsource their own opinions, views and humanity that you get executives and legislators on both sides of the aisle like this.
 

Canonical citations to The Federalist Papers are mostly harmless when constitutional commentators simply use James Madison or some other framer de jour as a vehicle for advancing what that commentator believes to be the best construction...

You mean citations like this: "The framers recognized that republican constitutions require that the citizenry have some virtues, although as Madison pointed out, men did not need to be angels."

Gotchas aside, it seems to me that the issue is less a problem of selective quotation (though that does happen), and more that people agree with some aspects of the Founders' thought and disagree with others. It also should emphasize the very real fact that the Founders often disagreed with each other, thereby making it possible to find "authorities" on both sides of many issues.

This suggests to me that people today do NOT "venerate[] inherited rules for choosing lawmakers and inherited rules for making laws", but instead advocate their own solutions. For better or worse, of course.

Since this so rarely happens, I'll add that Someone made the same point I was going to make.
 

Citizens in the twenty-first century may reject some values underlying an eighteenth century constitution.

That is what amendments are for.

Eager to demonstrate fidelity to the constitutional past, interpreters may imagine purposes behind constitutional institutions that the framers never imagined and which those institutions do not serve.

Good argument for textualism. However, the problem of courts making up law based on imagined original intent will not change based on the age of the Constitution. Courts do this all the time with recently enacted statutes and constitutional amendments.

Professor Levinson’s work, as well as recent studies on emergency powers by Professor Kim Lane Scheppele, detail how constitutional institutions in the United States, designed to organize eighteenth century politics, are often unresponsive to twenty-first century problems. The framers had little to say about the speech business, global warming or international terrorism, because they had little or no knowledge of the underlying political phenomenon.

Is the Constitution actually "unresponsive" or perhaps a majority of the People's elected representatives simply disagrees with your preferred means of addressing these issues?

[A]ny high schooler of above average intelligence could devise a more democratic system for electing the president that served that or other ends now imputed to the provisions in Article II governing presidential elections...Much evidence suggests that American citizens lack the capacities necessary to manage their constitution in a twenty-first century world.

I am confused.

Are you proposing a more democratic Constitution placing more power in the hands of our citizenry who apparently does not have the "capacity" to agree with your politics?

Or are you proposing a more authoritarian Constitution placing the the power in an unelected judiciary or bureaucracy which you presume will impose your politics on the citizenry?

I prefer and yes often venerate our present constitutional Republic, which restrains the power of a transient majority by imposing enough checks and balances to require an effective super majority consensus before imposing government power on the citizenry. I do not mind if the government does not always follow my preferred policies so long the Constitution largely stops that government from telling me how I should live my life.
 

It seems to me the basic limits on democracy are information and participation. Being well-informed and taking part in the political process are a lot of work, and most people have other things they would rather be doing.

I personally consider myself significantly better informed and more attentive the the news than average, but during general elections there are invariably obscure candidates to minor offices, bond issues and the like that I do not pretend to know about. (Too much work). Nor do I claim to vote in every minor election for bond issues and the like.

Perhaps others here have greater civic virtue than I do, but the point stands. Different societies can support different levels of democracy, but in the end every society reaches of point of more democracy than the people can stomach.
 

Huzzah! Excellent post. I want to comment more, but I'll wait for morning.

In response to the above -- phg gets it right. You could define this as a structural problem: American-style republican democracy is a good system up to a point -- but there's a persuasive argument that it's simply institutionally insufficient for managing a modern nation-state, much as Britain's government wasn't able to manage its colonies.

A number of people have discussed the specific problems more coherently than I ever could, but I think that proposition captures the post. Professor Levinson can be right that the Constitution isn't an adequate modern solution, but that doesn't mean that the only other alternative is "more democracy." (Although I'm aware that's what Sandy might propose; I just disagree.)

One could even say that's why we, you know, elect representatives rather than doing everything by referendum. There have always been more democratic alternatives than our current Constitutional order -- but you don't solve your governmental problems by just adding more democracy to the recipe.
 

In response to the above -- phg gets it right.

Up to a point... It's when he bends over backwards "to be fair" that his analysis fails. In short, it sounds more like a talking point than a truism with any basis in fact.

[T]o be fair, there are people like this on both sides of the political fence, probably too many. the bottom line is that these people cannot deal with eighteenth or twenty-first constitutional norms or issues not because they aren't smart enough, but because they simply aren't motivated, curious, inspired, or whatever other adjective you want to use enough.

It really depends on who one chooses to outsource one's opinions to, doesn't it?
 

"it really depends upon who one chooses to oursource one's opinions to, doesn't it?"

with all due respect, no it doesn't.

in this country, citizenship comes with certain rights and certain responsibilities. one of those rights is the right to vote and be heard. while it isn't a requirement that those who vote be fully informed on the issues, there is an implied requirement that those voting know what they are voting for. i agree with enlightend layperson that there are certain minor elections, bond issues, etc. that the average person doesn't and cannot be expected to routinely take the time to be informed about. on the whole, however, outsourcing one's opinion as to major issues is a major problem with this country's citizenship at this particular time.

case in point, i do not watch the tonight show with any regularity (hardly at all in fact). it is my understanding that one of the running gags, however, is when jay leno goes out on the street to ask "randomly selected" people questions about current events that you would assume the average person would know. the responses he typically gets, and granted those aired are usually the most outrageously dumb answers, astound, yet these people, who are clearly a random cross section of the american (alright, californian) population, vote in elections, as is their right. one would assume that they are, for the most part, much smarter than their responses as aired on television. one would also assume they do not want to be portrayed on national television as morons. the conclusion, therefore, is that they just are not inquisitive enough to find out the answers for themselves.

while in theoryn it is not necessarily a horrendous thing to outsource your opinion to a responsible person with whom you agree, after all, in a very real sense that is what we do when we vote for congressmen, senators, etc., if you do not know what your candidate really stands for, and are merely voting for him because he's republican, democrat, or as happens these days "not the other guy", that is completely irresponsible, and that does happen on both sides of the political fence. in that sense, the outsourcing of your opinion is from a societal standpoint a terrible, but unfortunately all too common occurrence in this country.
 

And the myth of Progress rides again...

MG is criticizing parts of the present Constitution (proportional representation), not because they are wrong, but because the motives for creating them were impure. Is that the best you can do? Here is an idea which is repeated over and over in the posting: "An eighteenth century constitution may not address twenty-first century problems." and yet not a single example of such a problem.

It has been mentioned on this blog a while ago that certain freedoms present in the Constitution would likely not survive a free-for-all Constitutional Convention. A 21st Century constitution would have ideas on detention and searches much closer to that of the present administration than to that antiquated relic the US Constitution. It is certainly revealing that administration philosopher John Yoo talks about these things in the same way. To which MG might say, "yes, but that's not the Constitution I would create," and we are back to the Platonic guardians again. After all, who would create this new and vibrant Constitution, if not the literati?

If that's what I have to look forward to in a 21st Century constitution, I want no part of it.
 

"After all, who would create this new and vibrant Constitution, if not the literati?"

I doubt the "literati" -- that is, the literary intelligentsia -- would create any constitution or doubt that anyone would nominate Updike, Franzen, DFW, DeLillo, etc to draft a new constitution. Although i'm sure the prose would be "supple".
 

"outsourcing ... your opinion is ... terrible"

First, assuming what you are addressing is "delegating responsibility", I'd argue that the situation is exactly the opposite of that implicit in this quote.

My (and I infer from Fed X, Madison's) idealized view of representative government is that you choose someone with whom you philosophically agree and whose capabilites you respect to discharge the responsibilies of government for you, hoping that on each issue the representative will come to a conclusion you could support were you to do the requisite research. If not, you either just accept an occasional disjunction or actually do your own research to see if you missed something in forming your opinion. If there end up being too many disjunctions on key issues on which you have (hopefully) informed opinions, you vote against that person next time.

But that's exactly what I see as not happening. People form their (often, if not typically, ignorant) opinions, respond to polls, etc, and then candidates (more accurately, parties) parrot the opinions that they think will collectively attract enough votes to get elected. Here - at least with respect to key issues - the voters aren't delegating responsibility, they're just electing proxies, which gets us uncomfortably close to the disaster of "pure" democracy. Note that if the system works as I suggest, the "quality" of the "representative" becomes less relevant - any fool can do what they're "told" to do by the electorate and/or party leadership. In fact, it becomes almost a requirement to be one in some regions because nobody with "nuanced" (ie, informed) positions on various issues can get elected unless they hide those positions. So, you get either fools or charlatans, a fair description of a depressingly large fraction of our representatives.

"voting for [a candidate] because he's republican, democrat, or ... "not the other guy" ... is completely irresponsible"

I also disagree with this. First, if you feel that a party has acted sufficiently irresponsibly, IMO it's incumbent upon you to vote against candidates of that party unless they are unequivocal mevericks, a seemingly rare (extinct?) breed. And in the two party system, if you dislike one "guy" (or again more accurately, one party) more than the other and don't want to just lodge a protest vote via a third party candidate, what other option is there?

-charles
 

Does our constitution really matter? In practical terms, what are the implications of a more "democratic" constitution?

The French have a presidentialist model. Germany is a multi-party democracy. Britain is a (basically) two/three party parliamentary system. I'm not sure that it really makes a lick of different which system you have. A modern society is primarily driven by its bureaucracy, and most developed countries have basically the same bureaucratic structure - a mix of public and private bureaucracies, run on a top-down model of professionals, primarily composed of the middle class.

Is a constitution in the 21st century almost irrelevant, except in the edge cases? Recognizing that the "laws" and "constitution" are primarily interpreted in terms of the bureaucratic consensus of the day, in practice you get quite close to simply having a bureaucratic state.

Who writes the laws? Basically bureaucrats that then pass them up to reps who lack the expertise to even understand what they're passing. Who writes most judicial opinions? As I understand it, it's the clerks who are coming out of the same cultural context, and the judge acts primarily as an editor. Where does the evidence in any constitutional question come from? Most of it comes out of that same bureaucracy.

I'm not saying that the constitution is completely irrelevant, but it may not be that important in practice, maybe not worth tinkering with.
 

I have fully concurred with many of Levinson's reforms, particularly the abolition of the Senate, Electoral College, and set terms for Justices.

But SOMEONE is forgetting a democratic republic is necessarily born of COMPROMISE. Many of the Founders disagreed with certain provisions, but small states wanted "equal" power of large states, entirely at odds with "one citizen, one vote." To get the Constitution, compromise for a Senate.

The Electoral College, on the other hand, was just a perfect solution to a non-existent problem, which, in turn, does precisely what it was unintended to do.

Levinson urges a Constitutional Convention to "modify" these defects, which I again fully support -- just NOT NOW. As Cass Sustein's review of Levinson's work suggests, a new convention would require COMPROMISE again, and those compromises may worsen, not ameliorate -- especially in this reactionary climate. If everyone of the conventioneers were like Levinson and me, hey we'd produce a great new document.

Wishful thinking, alas. Pragmatics balance reform, timing, opportunity, and adversity. Yes, the Constitution needs reform, but what if Falwell, Robertson, Sheldon, and Dobson are conventioneers, too?
 

"Ordinary Americans lack the virtues necessary to manage a contemporary Constitution."

Gee, examination of the Duke phony rape case leads me to the conclusion that modern American professors (a) are incapable of making an intelligent judgment about who is lying and who is telling the truth and (b) do not understand the presumption of innocence, the bedrock of our system of justice. Any system that enfranchises people like that seems dangerous to me.

Before anyone proposes constitutional change, I would like that person to explain, with specific reference to the Duke case, why on earth university professors would be good candidates for making up a new constitution. After that, let's go episode by episode through the FIRE website, and explain why I should trust the perpetrators of the abuses detailed there to run my life.
 

phq,

I wouldn't place too much faith in the value of a Jay Leno comedy bit as anecdotal evidence of anything and the reasons should be obvious. It calls into question your own judgement and I can't believe an intelligent person would use such a case. It just goes to show that even well educated and bright people can and do "outsource their opinions to the wrong source". I would agree with the comparison made by the other commenter, it's more like delegating authority and the key is knowing how to do this well.It's not bias. It's just statistically axiomatic that as long as the Overton Window has crept so far to the right that only radical extremists can identify with current conservative and Republican positions, (three hands up do not believe in evolution), I wouldn't have too much difficulty in finding ample and indisputable statistical evidence that a majority of the Republican base outsources their opinions to the likes of Jerry Falwells and Pat Robertsons. It causes me to wonder who else you are outsourcing your opinions to?
 

This comment has been removed by the author.
 

The Gay Species,

You have a point. Polarization has reached a peak. However, the center has collapsed. Vanished. Nature hates a vacuum. It could be that we are fast approaching a political realignment that brings the Overton Window back to the center where compromise is once again possible. It can't go any farther to the right and the increased tension and nature's abhorrence of a vacuum will snap it back. That's my take, at least.
 

Mark: I think the topic of the schmooze may be the most important one of our day. We lack the ability to think critically of our constitution and reject the lessons that other democracies have drawn from our constitutional experience. Where I disagree with you is in the proposed solution. The problem lies, you suggest, at the level of constitutional culture and that needs to be fixed before we tackle any problems of constitutional engineering. The problem you suggest is that we lack the sorts of citizens needed to operate a 21st century constitution. I think the problem is that we have become more of an oligarchy and are paying the price that oligarchies impose on policy making. Improving the mechanisms of democracy to limit the power of elites to shape policy will have a positive impact on decision making. To put it in other words, constitutional change can impact constitutional culture. Miguel
 

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