Balkinization  

Monday, September 17, 2007

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.

Comments:

Forget health policy for a moment and let us strip this bill down to its essentials as fiscal policy.

Governors of both parties have enacted programs which take money from singles and the parents of some children and give it to parents of other children (many of them illegally in this country). However, these states are unwilling to raise taxes to pay for their own redistribution programs.

So, the Governors go to Congress asking them to rewrite the law to take money from the taxpayers of states who have not enacted similar redistribution programs and give it to the redistribution recipients in their states.

Facing a competitive election year, a majority of members of Congress are willing to buy votes (or simply avoid being falsely accused of hating children) by funding these state redistribution programs.

One would think that the Constitution would provide a way of blocking such thievery of our money.

Thankfully, not all of the Constitution's speed bumps slowing transient majorities from voting themselves the money of the minority have been removed by the Courts.

In this case, we still have the presidential veto.
 

Bart, I like your reasoning. It could be deployed in any number of contexts. I suppose, any time a Congressional majority votes to do ANYTHING that involves taxing and spending, opponents of the measure can cry, "Thievery!!" For example:

"Facing a competitive election year, a majority of members of Congress are willing to buy votes (or simply avoid being falsely accused of being soft on terrorism) by continuing to fund this war.

One would think that the Constitution would provide a way of blocking such thievery of our money.

Unfortunately, not even the presidential veto will be employed on behalf of the majority that would like to see this war reach a swift conclusion."
 

Professor Levinson

I am puzzled by the degree to which you seem to be unable to separate George Bush's many personal faults from alleged deficiencies in the Constitution.

Bill Clinton was elected twice with less than 50% of the popular vote. After the Republicans took Congress in 1994, Clinton was able to thwart many of their objectives through actual and threatened use of the presidential veto and the other powers of his office. Do you think that this represents a failure of our constitutional system?

The health care issue that you refer to would seem to provide an example of the constitutional system working exactly as the Framers intended. Indeed it is likely that the Framers would be surprised that Congress was even contemplating legislation on a matter so removed from its enumerated powers.

Perhaps you consider it a constituional deficiency that the "popular will" can be thwarted by the President. But on an issue like health care it can only be thwarted temporarily. There will be another election in 2008, and right now it seems very likely that this election will give total control of the government to the Democrats, giving them considerable opportunity to reshape health care policy as they see fit. Of course, as Clinton learned with health care in 1993 and Bush with social security in 2005, this is not a guarantee of success for unpopular proposals.

If you are really concerned about thwarting of the popular will, you would focus on the courts, which are far more effective at this than the political branches (see decisions on abortion, school prayer, term limits, etc.) Do you think the constitutional convention should eliminate judicial review? Or only if the Supreme Court has a majority appointed by Bush?
 

don said...

Bart, I like your reasoning. It could be deployed in any number of contexts. I suppose, any time a Congressional majority votes to do ANYTHING that involves taxing and spending, opponents of the measure can cry, "Thievery!!"

:::heh:::

I am not quite that much of an Randian libertarian.

My bright line between thievery and proper governance is redistribution from a one group, usually those in a political minority, to give to another group.

For example, universal heath care where everyone pays and everyone is covered is an insurance program. However, taxing smokers to pay for health insurance for middle class kids is thievery.

To use your example, a war where everyone pays and everyone's security is benefited is national security, not thievery.

Taxes should be as broad and flat as possible and programs should benefit as many of the public as possible.
 

To use your example, a war where everyone pays and everyone's security is benefited is national security, not thievery.

# posted by Bart DePalma : 9:07 AM


The disaster in Iraq has nothing to do with security. We are simply pissing away money for nothing. It is an appalling example of thievery, and most Americans now appear to realize that.
 

With regard to "thwarging of popular will," the Supreme Court is relatively small beer (invalidating about 170 federal laws over the last 200 years) compared with the 2500+ presidential vetoes.

I regard it as a defect of the Constitution that anyone can be elected president without getting 50% of the vote in some election, such as a French-style runoff or, my own favorite, an Alternative Transferrable Vote.

Presidents should be able to play a role in the legislative process by force of reasoning. There is, I now believe, no justification for making any president, whether it's George W. Bush or Hillary Clinton, into a third legislative chamber whose one singular vote outweights the collective majorities of the House and Senate. Whatever that is, it's not an acceptable 21st century version of "democracy."
 

"My bright line between thievery and proper governance is redistribution from a one group, usually those in a political minority, to give to another group."

OK, but let's be clear, though. Yours is a perfectly legitimate statement from the political philosophy perspective. It is not, however, a principle of constitutional law. The constitution does not exist to advance a particular economic theory. As such, there is no reason to expect the Constitution to "provide a way of blocking" what you choose to perceive as "thievery."
 

sandy levinson said...

With regard to "thwarging of popular will," the Supreme Court is relatively small beer (invalidating about 170 federal laws over the last 200 years) compared with the 2500+ presidential vetoes.

The President is part of the elected popular will, the courts are not. Indeed, the President is the only nationally elected office and generally wins about as many states and districts as a congressional majority.
 

don said...

BD: "My bright line between thievery and proper governance is redistribution from a one group, usually those in a political minority, to give to another group."

OK, but let's be clear, though. Yours is a perfectly legitimate statement from the political philosophy perspective. It is not, however, a principle of constitutional law.


I agree. The point I was attempting to make is that the Founders distrusted pure democracies and created a constitutional republic with layers of checks and balances to prevent transient democratic majorities from committing any significant mischief.


The constitution does not exist to advance a particular economic theory. As such, there is no reason to expect the Constitution to "provide a way of blocking" what you choose to perceive as "thievery."
 

"Bart" DePalma:

The President is part of the elected popular will, the courts are not. Indeed, the President is the only nationally elected office....

Would that it be true, but alas.... "Bart" is simply wrong here, and we're stuck with Dubya and a nation in free-fall.

But count on "Bart" to support the non-democratic means of selecting the preznit because it favours his champeens (unless it's in California, wherein the Republicans, for partisan political advantage, are pushing for a more "representative" allocation of electoral votes to their presumed advantage).

The electoral college must go. Now. It has no place in today's society and polity.

Cheers,
 

"The President is part of the elected popular will, the courts are not..."

I don't agree with that. Once appointed, federal judges are insulated from the democratic process, true enough. However, people elect presidents and senators based at least partly on the types of judges they will nominate and confirm. People elected G.W. Bush, knowing full well that he would appoint justices in the mold of Scalia and Thomas. In that sense, Roberts and Alito are certainly reflections of "popular will," albeit indirectly.
 

arne:

We agree yet again today. What is it, four or five times so far?

As I posted in response to the Sabato suggestions for changing the Constitution:

[Sabato] 19. Mend the Electoral College by granting more populated states additional electors, to preserve the benefits of the College while minimizing the chances a President will win without a majority of the popular vote.

BD: Let's scrap the Electoral College system. It is generally superfluous and extremely divisive when the popular vote winner does not become President.


BTW, Mr. Bush won the last election by 3 million votes to achieve a majority, so the "minority president without a mandate" schtick doesn't work to delegitimize his administrative decisions as somehow "anti democratic."

If Congress wants its legislative power back, it simply needs to take it back.
 

Don said...

BD: "The President is part of the elected popular will, the courts are not..."

I don't agree with that. Once appointed, federal judges are insulated from the democratic process, true enough. However, people elect presidents and senators based at least partly on the types of judges they will nominate and confirm. People elected G.W. Bush, knowing full well that he would appoint justices in the mold of Scalia and Thomas. In that sense, Roberts and Alito are certainly reflections of "popular will," albeit indirectly.


I would like to agree with you, but for every GOP appointee like Roberts and Alito, we have appointed a Souter and O'Connor. Judicial appointments are often exceedingly faint reflections the democratic choices for President.
 

With regard to "thwarging of popular will," the Supreme Court is relatively small beer (invalidating about 170 federal laws over the last 200 years) compared with the 2500+ presidential vetoes.

If you think that presidential vetoes violate democratic theory and judicial review does not, I hope you have a better argument than the claim that judicial review is "relatively small beer." Among the facts overlooked by this claim are (1) Presidents are clearly more responsive and accountable to the people than are judges, (2) judicial review invalidates a lot more than federal laws, including state and local laws and many types of governmental activites that aren't laws (police practices,eduational practices, etc) (3) the number of 170 may reflect federal laws struck down in their entirety, I seriously doubt it reflects all those that have been held unconstitutional in part (how many legislative vetoes were effectively struck down by Chadha?), (4) it is a lot easier to override a presidential veto than a constitutional decision of the courts, and (5) surely there have been few, if any, presidential vetoes in modern times that rival judicial decisions on school prayer, abortion, flag burning, Miranda rights, capital punishment, affirmative action,etc in terms of degree of popular opposition and controversy.
 

With regard to the previous posting by MLS:

1) A second-term president is no more "responsive to" or "accountable" to the people than is the Supreme Court. One simply has to look at the incumbent to know that accountability, in any form, is the last thing on his mind. 2) True, the federal courts invalidate a lot of state legislation. But there is no serious argument that the court has the power to do so. Just read Article VI. Moreover, many of the judicial decisions could in effect be overruled by Congress inasmuch as they involve the dormant commerce clause or notions of federal "pre-emption." Fourteen Amendment decisions are the exception, of course, though even here states are far more important, overall, than the Constitution in reining in the states. Title VII, for example, is far more significant that the Fourteenth Amendment. 3) Over our entire history (as I point out in my book), roughly 5% of presidential vetoes have been overridden. It is simply false to say that it is subsantially easier to overrule a president than the Court. And, with the court, at least one needs to convince five justices; with the president, one stubborn individual holds trumps. 4) Even if, arguendo, I underestimate the importance of judicial review, I think there is no serious argument that it plays a greater role in struturing decisions about issues that most Americans really care about than does the presidential veto. Just read Fred Schauer's Harvard Law Review foreword last year on the disconnect between what most Americans care about and what law professors shout at one another about. School prayer is tremendously important to a very small number of Americans. Far more care about health insurance, etc.
 

Professor Levinson

Two quick points before I get to what (I think) is the heart of your claim. First, the question of whether or not judicial review is authorized by the Constitution is completely irrelevant to the discussion we are having. And I think you have to concede that the presidential veto is (at least) as clearly authorized by the Constitution. Second, the assertion that it is substantially easier to override a presidential veto than to amend the constitution is obviously true as a statement about the formal structure of the Constitution. I also think it is true as a statement about practical political reality, but that is only my opinion and no doubt you are more knowledgeable about that subject than I. However, I would observe that however difficult it may be to persuade a President to change his mind, Presidents serve for at most 8 (ok, technically, it might be 10) years and the next President is completely free to sign the law that his predecessor vetoed (no stare decisis problem there).


You state "A second-term president is no more "responsive to" or "accountable" to the people than is the Supreme Court. One simply has to look at the incumbent to know that accountability, in any form, is the last thing on his mind."

Again, I think you are making the mistake of confusing George Bush's personal attributes with the structure of the Constitution. On the issue of Iraq, Bush has been exceedingly unresponsive to public opinion, but I am not aware that he was any more responsive during his first term than during his second. And it would be rather an overstatement to say that Bush, stubborn as he is, is completely immune to political opinion or pressure. Just look at his decision to nominate an Attorney General suggested by Senator Schumer, rather than someone like Ted Olson (whom Bush would no doubt have preferred).

Even in their second terms, Presidents have a lot of incentive to respond to public opinion, including their need to get appropriations and other legislation from Congress, their need to get nominees confirmed by the Senate, their desire to help their political party win future elections, etc, not to mention the fact that most politicians (not all) were born with a craving for public approval. Are you aware of examples of Presidents radically changing their behavior in their second term as a consequence of being freed from accountability to the public?

There are, of course, examples of Presidents defying public opinion or taking huge political risks in order to do what they believe (or claim they believe)is the right thing. Reducing their ability to do this may eliminate some behavior that you find objectionable, but may also eliminate some behavior you would (I suspect) find admirable. And even in a parliamentary system it is not eliminated altogether (see Tony Blair on the aforementioned Iraq War).

One could also argue that Congress is a good deal less responsive to public opinion than it might be, with the vast majority of members having safe seats that are impervious to changes in national opinion. I am not sure why you would single out the President, the only federal official who is actually elected by the entire nation, as being removed from public opinion.

For these reasons, among others, I am not at all persuaded that your statement is accurate (or frankly that you even believe it yourself).
 

Sandy,

I have been following your thinking on constitutional theory and practice from afar this last twenty years. We share the same concerns and priorities on many, many points.

Here is my 2 cents on the Sabato and related efforts. (a) the focus is misplaced on process and finding process-oriented solutions; (b) not to embrace Cass Sunstein in his entirety, but the real fundamental problem today is that we are no longer functioning with 'civic virtue' -- I would define as Adair did; (c) convening a constitutional convention -- I hope you guys have the sense of humor to do it in indoor tennis courts. You will find Americans today far more concerned about The SUV Estates than the concerns of your colleagues here and Sabato's.

Believe me, I have sat through enough focus groups (statistically meaningless shamanism, granted) and conducted enough polling to have my own sense of the American people at the current time.

People throw around the term 'decadent' like that old Guccione Caligula movie, but in its technical precise term as emplyed by Jacques Barzun. Literally, as Pocock wrote, when a Republic meets its own consciousness of "temporal finitude". Newt is unaware of how he fits the mold exactly, talking about "renewing American civilization" and a "government that works" with "super departmental secretaries" -- the last idea floated by his close associate Bob Walker on his behalf.

In short, it is not the Constitution that has failed. And if you or Sabato call for a new one, be prepared to be on the losing side of Who Whom.

There are ideological forces far more organized, coherent and poised than Sabato's darkest dream -- Christian Socialist Authoritarianism is still a real possibility, either one more term away, the Tennis Courts, or an Enabling Act.

Bushism is in low esteem across the Nation because of incompetence and failuire, not rejection of his alleged ultimate goals. It would be a deadly mistake for anyone calling a constitutional convention to forget that.
 

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