Thoughts on Constitution Day

Sandy Levinson

I am writing from Las Vegas, where I will be delivering the Constitution Day talk this evening at the UNLV Law School. It is obviously unncecessary to rehearse in full my argument for this audience, other than to emphasize that I am more than willing to honor the Framers for their courage in confronting the exigencies of their political situation in 1787l. My complaint is that we are totally unwilling to emulate them.

I note an article in today's New York Times that underscores the extent to which we live in a tricameral system that almost none of the Framers would have imagined nor, I am confident (for what is worth), have supported. The superb Robert Pear reports that "Veto Risk Seen in Compromise on Child Care." Key passages of the article include:

The compromise is likely to pick up some Republican votes in the House but probably not enough to override a presidential veto, Republicans said. A two-thirds majority is needed to override a veto — 290 votes if all 435 representatives are voting.

The compromise would allow states to cover nearly half of the children who are uninsured. About 6.6 million youngsters are now covered under the program. The Congressional action comes in response to urgent appeals from governors of both parties. In a letter to Congress last week, Gov. Sonny Perdue of Georgia, chairman of the Republican Governors Association, and Gov. Kathleen Sebelius of Kansas, chairwoman of the Democratic Governors Association, said, “For health and moral reasons, Congress must pass and the president must sign a reauthorization of the program by Sept. 30.”

Without prompt action by Congress, they said, “it will be virtually impossible for states to continue coverage for children already enrolled.” The Congressional Research Service said that 12 states would have no federal money available on Oct. 1, while an additional 23 states would exhaust their allocations in the coming year without a fresh infusion of money.

The framework devised by Congressional negotiators would provide $60 billion for the Children’s Health Insurance Program over the next five years. That is about the same as in the Senate bill — $35 billion more than the current level of spending, but $15 billion less than the House wanted and $30 billion more than Mr. Bush wanted.. . .

Mr. Fratto, the White House spokesman, said: “We have issued veto threats against both the House and Senate bills. So the House moving toward the Senate position is not sufficient.”

Better proof for the proposition that we have a tricameral political system could not be imagined. Perhaps some of you support the Bush Administration: I'm not particularly interested in getting into a debate about the substance of health policy, about which I know far to little. What I do know, though, is that a bipartisan compromise has been worked out with regard to what most thoughtful people, including Republican governors, believe is an important national issue, and that it seems likely to be torpedoed by a single individual, stunning ignorance and incuriosity--just read Alan Greenspan's latest missive about the latter--who has the general support of somewhere around a third of the country, who is completely unaccountable to the electorate since, of course, he's never again running for elective office. Why exactly do we/should we celebrate such a system of government?

I could, of course, also refer to most of the reponse to the pathetic speech by the President with regard to future policy in Iraq (and, just as importantly, Iran). As articles describe the fight within the Administration about whether or not to go to bomb Iran, it is absolutely clear that Mr. Bush has no intention whatsoever to seek congressional consent to what would be, after all, a performative "declaration of war." A letter to the editor in Saturday's Times by Kathryn W. Kebler concludes, "We are supposed not a military dictatorship---yet at times it seems that we are." As Mark Tushnet has noted, we're not a "military dictatorship" so long as there is a civilian commander-in-chief, however opportunistic his use of the military may be. But I continue to think that Ms. Kebler would basically be on the mark if she omitted the word "military." And, just to preclude an obvious response, the riposte that Congress could simply refuse to fund the military by passing no funding legislation at all is simply silly. It would represent a political and constitutional crisis of the highest sort if Congress refused to offer any support to brave soldiers who are in fact putting their lives on the line for a dreadfully misguided American policy (if, if course, one could actually discern what the policy is besides waiting long enough to leave the mess to Mr. Bush's successor).

So I'm delighted to celebrate the spirit of Madison and others who engaged in gimlet-eyed scrutiny of the Articles of Confederation and did what they thought necessary to save the country. I'm less than delighted with a notion of Constitution Day that ignores that aspect of their character and instead says that we in 2007 have any great reason to feel gratitude for being trapped in the cage constructed 220 years ago.
Posted 6:06 PM by Sandy Levinson [link]