Balkinization: Learning the Lessons of Experience: A Meditation on the run-up to Constitution Day

Learning the Lessons of Experience: A Meditation on the run-up to Constitution Day

Sandy Levinson

"Brett" writes as follows, in response to my previous posting:

I will still maintain that the Professor should stop describing
a system that's designed to work in a way he doesn't approve of as being "broken". So he wants us to be a parliamentary democracy; Can't he just say so without characterizing divided government in such over the top terms?

I have, of course, heard such criticisms before. Similar, in a way, is the argument that my views are so distorted by my estimation of the pathological nature of the Bush-Cheney Administration that I don't recognize that I have nothing useful to say about the fitness of the present Constitution. (My friend Jack Rakove, who reviewed Our Undemocratic Constitution for the Election Law Review, unfortunately not hyperlinkable, said that I'm probably the kind of person who has a clock counting down the days to the end of the Bush Administration (which I don't, as a matter of fact, though I probably should).) I think that both of these arguments are wrong.

First, as to Brett, let my try the following thought experiment: Imagine that he/you were a delegate in Phildelphia in 1787, faced with, among other things, the cold, hard language of Article XIII of the Articles of Confederation, requiring unanimity for amendment (not to mention the limited mandate of the Congress). Some (most) of the people in Philadelphia thought that the Articles, America's first constitution, were radically defective--among other things, it didn't provide for an effective means of national taxation, though people then and even now disagree about how "really" defective and dysfunctional it was. But, of course, the Articles were designed to work the way they did, which was to create an extremely weak national government and leave effective power in the states. So what would Brett say to hotheads who described the American system of government, circa 1787, as "broken" and in need of radical solutions? Were they "over the top," or is it that, because winners write the history, we of course agree with the Framers that the Articles were in fact defective and that they were absolutely correct to act as they did, in willful defiance of their mandate and the terms of Article XIII.

Now I don't argue that our current government is quite so defective as the system in 1787, though in some ways the risks we run from some of the defects--e.g., Dick Cheney becoming President--may be just as high. Those of you who like the Bush-Cheney Administration see no risk at all, and my argument really isn't with you at all. (So don't bother writing in with defense of the Administration. They are truly beside the point to my central argument, which is directed at people who more or less share my estimation of the current Administration. Most of you think that we must simply wait until January 20, 2009 to change the identity of the Commander in Chief and Vice President. Otherewise, there are no fundamental lessons about constitutional design to be learned from our present situation. Analysis is concentrated on the personal failings of the President or congressional leadership and not to the structures of the Constitution that magnify the consequences of personal failings on the part of the President or limit the ability of Congress to rein in the President if, for example, if requires the passage of new legislation. But, in all due respect, I don't think I'm much more "over the top" than were most of the people in 1786-87 who looked around in despair at the consequences of the Articles. I may be wrong, of course. For obvious reasons, I hope I am. But being asked, even as politely as Brett does, to tone down my concern is not an argument as to why exactly it isn't merited.

Second, let's assume, as is undoubtedly correct, that I'm influenced in my current level of concern by the lessons I think I've learned from the Bush-Cheney Administration over the past six years. Why is that an argument against drawing lessons from that experience? As we prepare to celebrate Constitution Day, why don't we realize that the undoubtedly greatest thing the Framers did was unflinchingly to look at what was happening around them and to act accordingly? Consider only Madison's great comment in the Federalist #14, devoted to explaining why Montesquieu was wrong with regard to the impossibility of an "extended republic." He wrote as follows

But why is the experiment of an extended republic to be rejected, merely because it may comprise what is new? Is it not the glory of the people of America, that, whilst they have paid a decent regard to the opinions of former times and other nations, they have not suffered a blind veneration for antiquity, for custom, or for names, to overrule the suggestions of their own good sense, the knowledge of their own situation, and the lessons of their own experience? . ... Had no important step been taken by the leaders of the Revolution for which a precedent could not be discovered, no government established of which an exact model did not present itself, the people of the United States might, at this moment have been numbered among the melancholy victims of misguided councils, must at best have been laboring under the weight of some of those forms which have crushed the liberties of the rest of mankind. Happily for America, happily, we trust, for the whole human race, they pursued a new and more noble course.. . . (emphasis added)

I wish I had given equal weight in my book to this side of Madison as to the side of him, in Federalist #49, that counsels what from my point of view is thoughtless "veneration" of the Constitution. This is really the best not only of Madison, but of his generation of people who deserve to be honored after 220 years. They were willing to learn lessons from their own experience.

We are constantly told, rightly or wrongly, that any future policies must take into account the experience of September 11; others emphasize the experience of Munich, or Vietnam, the Great Depression, or the pandemic of 1918. The list is endless. The one thing we're apparently not supposed to do is take too seriously the possible lessons of actually experiencing the Bush presidency and realizing that it might be worthwhile to try to figure out what can be done to prevent the re-occurence of such a disastrous event. Contrary to Brett's suggestion, I'm not a fan of all-out parliamentarianism, but I do fervently believe we can/should discuss why we think it worthwhile to have an entrenched vice president at all (the subject of a previous posting), or why we think it would be the equivalent of parliamentarianism if a separately-elected president--and all parliamentary systems draw their leaders from withhin the legislature--could be dismissed upon a solemn declaration of no-confidence by 2/3 of the entire legislature and the successor chosen by the caucus of the president's own party, at least so long as that person has the confidence of 1/3+1 of the legislature.

A final point: There are two absolutely wonderful articles in today's New York Times Magazine, one by Fred Kaplan, "Challenging the Generals," about the rising (and ever more public, discontent of mid-level officers, who have actually been putting their lives on the line, with the leadership (or lack of same) displayed by generals most of whom have not in fact participated personally in serious wars and have almost literallly no idea of how to fight anything other than classical wars; the other by the inestimable Michael Lewis, "Nature's Casino," on how to think rationally about "unlikely," but nonetheless predictable "end of tail" events that carry with them the potential for catastrophic consequences. There is a greater probability that Dick Cheney will become President in the next sixteen months (a minimum probability, simply looking at actuarial data from the Center for Disease Control, of somewhere between1.5-2%) than that another Katrina will hit New Orleans this year. Most of us don't think this is a rationale for not learning anything from the past experience of Katrina. As I've written before, there's probably nothing we can do to fend off a Cheney presidency beyond praying for Bush's health. But might we not truly to control for the almost inevitable future possibility that we will be faced with another such possibility, as is the case with the successors of Katrina? Are there such great benefits to having an entrenched vice president, or to countenancing the continued overbuilding of cities in places subject to hurricanes and earthquakes, that we shouldn't ask, at the very least, about their potential costs?

Posted 6:25 PM by Sandy Levinson [link]

Comments:

Professor Levinson:

You contend that the solution to "rogue" executives is to replace our government which divides the executive from the legislature with a unitary parliamentary system. I understand your argument to be that a newly elected Dem Congress should be able to remove the Mr. Bush with a vote of no confidence (or for your equally rabid GOP counterparts, that a newly elected GOP Congress in 1984 should be able to similarly remove Mr. Clinton).

However, under a parliamentary system where the government decides whether to hold off year elections, neither the Clinton nor the Bush administrations would have allowed off year elections under adverse electoral circumstances in 1994 and 2006 to allow the opposition to gain a majority to hold a no confidence vote.

Professor, I did not understand the fanatical claims of many of my fellow GOP when they claimed that Mr. Clinton petty corruptions leading up to his felonies were the end of the Republic. Mr. Clinton was an embarrassment, not a threat.

I understand even less the claims of Dems bitter from losing the 2000 election that Mr. Bush's subsequent ripping down of the Dem post Watergate unconstitutional limits on presidential powers represent the end of the Republic. The Republic managed to flourish for two centuries while Presidents exercised their full powers prior to these post Watergate "reforms."

# posted by

Bart DePalma : 10:44 PM

There is enough to be upset about that people who are less desirous of constitutional change than you can take your statements as not too excessive.

Nor does is the system compelled to work this way any more than it was compelled to deny rights to blacks in the 1950s. We will have bad leaders. It is not in bad taste to firmly denounce them and be upset when not enough is done against them. The system INTENDS this.

The source of criticism is ironic in a fashion since many of us think he has a view of what the C. means that isn't really quite what it means.

Anyway, as to 2009. Many of us don't think the problem is only Bush and Cheney. The focus on them sometimes is excessive, honestly, since there is a claim that the system as is can't stop them adequately.

This is not really a result of the Constitution as written. As with the days before the Civil Rights Era, it is in various ways a failure of will. W/o that will, you can change the C. in various ways, and we probably will still find ways to have problems.

When Democratic frontrunners promote regime change in Iraq, we have a system defect ... but bad candidates will be with us in any system. Maybe, we need more amendments or a constitutional convention.

We surely need one of those "constitutional moments" where "We the People" simply refuse to enable what is going on now. If we do, given our creativity over the years, any change won't stop the fire.

# posted by

Joe : 12:00 AM

I thank Joe for his comment.

As to Mr. DePalma, I can only say that he appears to be either incapable of reading what I clearly write or, even worse, that he is willfully dishonest. I have made it as clear as I can that I do not advocate "a unitary parliamentary system" or the possibility of removing Mr. Bush by the vote of the newly elected Democratic Congress (and, even less do I support replacing a Republican President with a Democratic Speaker of the House, or vice versa).

# posted by

Sandy Levinson : 12:13 AM

"As with the days before the Civil Rights Era, it is in various ways a failure of will."

Precisely! Congress does not lack for tools to deal with President Bush! What it lacks is the will to confront him. This is a failure of political culture, not the Constitution.

What you apparently want is a constitution which makes it so easy for the legislature to dominate the executive, that even this Congress, spineless by habit, and with a narrow, fragile majority, could do it. That, IMO, would be a dangerously unbalanced constitution. (I say "apparently" because I'm not entirely clear exactly what it is you want. Maybe you should try your hand at drafting a proposed constitution or package of amendments. It would clarify things greatly.)

We have to wait for 2008, not just for Bush to be gone, but for another election to resolve the current legislative balance in one direction or the other.

I'll have more to say, when I've had time to think about this. But I will say right now that I think the debate over amending the Articles of Confederation is a really bad analogy for our present circumstances, which even you seem to recognize.

# posted by

Brett : 7:14 AM

Professor Levinson,

I think the comments thus far provide evidence that your theory, as expressed in your book, that opposition to a constitutional convention would come primarily from "liberals fearful of unleashing the beast" falls short of the reality.

The need of authoritarians for the appearance of a strong executive dates back to the founding of this nation. They, please note, make up a sizable block of the electorate, and are represented by some comments here. For them such an activity would spike the fear that drives their political choices.

Thus we may conclude that:

1. Liberals will fear throwing the baby out with the bath water in a constitutional re-write.

2. Conservatives, especially those from small states, would fight it tooth and nail.

3. Authoritarians would prefer to see a military coup than a constitutional convention.

That leaves only a few of us to carry the effort and seems to me to make the smart money fall on the scenario involving some cataclysm even more profound than the 8 years of the Bush administration. It boggles the mind.

Frankly, I'm willing, even eager, to help -- I think we passed the "design constraints" under which the constitution was originally designed a few decades before I was born -- but I must admit to a feeling of overwhelming pessimism.

# posted by

C2H50H : 11:36 AM

I agree with c2h50h's comment, but would add that the additional issue of party goals would be superimposed on those issues, perhaps like multi-level checkers. So it would be difficult.

That said, it's important that US citizens engage in mental exercises modifying the structural framework. Probability seems difficult to grasp (or at least to frame in nicely-sized rhetorical bites) so I'd suggest a more mundane metaphor: we don't continue using defective designs, be they for cars or bridges. We re-engineer them. So here, refusing to tinker with a flawed design ensures nothing but another failure down the line. Whether it is a small or large failure is a question of chance. And that's no way to run a country.

# posted by

sparky : 3:47 PM

I think Brett makes a powerful point. This is hardly a Congress that has tried and failed to confront the President due to structural limitations.

# posted by

Steve M : 11:53 PM