Balkinization  

Wednesday, December 26, 2007

Compromise and utopianism

Sandy Levinson

I'm going to crosspost this at http://www.utexas.edu/law/faculty/slevinson/undemocratic/blog/, which is devoted entirely to discussion of the ideas in Our Undemocratic Constitution (and which, since the Moyers interview, is getting some participation). I invite anyone on this list to join the discussion there.

The heart of Mark's post is as follows:

For the past year, my friend and co-blogger Sandy Levinson has called for a political movement for constitutional reform. He is correct to note that many features of the contemporary constitution are undemocratic and that others suffer from different flaws. The call for a political movement, however, entails more than the observation that the constitution is defective. Rather, participants in the political movement must believe the defects of the constitution are significantly worse than the other ills of American politics so that, in the political conflicts between political conflicts, constitutional revision ought to take precedence over questions of war and peace, economic reform, environmental degradation, etc. At the very least, political resources allocated to those political struggles ought to be diverted. This, of course, raises two questions. On what issues should diversion take place? Who should be diverted? Perhaps a political movement for constitutional reform can be done without diversion, but the Roosevelt experience in 1937 suggests that liberals who engage in constitutional reform pay liberal costs for diverting the electorate. At the very least, those who attend Sandy's call for suggestions to how to form this political movement ought to take seriously the costs to other desired political movements and either explain why the benefits will outweigh the costs or why, in fact, this movement for constitutional reform will, unlike any other, have no substantial costs for liberal goals.

It is, of course, hard to disagree with Mark's general point. All politics involves compromise and tradeoffs, and I have long believed that the enemy of achieving some real goods is a utopian commitment to achieving the best. So one response to Mark is to pick and choose among specific problems with the Constitution and concentrate on those that worry us the most. As regular readers know, my greatest concern these days is the costs of being stuck with an incompetent president/commander-in-chief, which strikes me as an issue of transcendent importance given the ability of same to make truly important decisions of war/peace, life/death. I don't like the presidential veto, obviously, but I'd put alleviating that off if there were any prospect of adopting a vote of no confidence. And, for all of my dislike of life tenure for Supreme Court justices, I'd put it at the bottom of the list, since it really doesn't threaten us in the way that an incompetent president can. BUT, and here is where things get truly tricky, if one is also concerned about the way that the present constitutional system makes it difficult to achieve a whole bunch of programs--I am interested primarily in "progressive programs," but I have suggested that political conservatives shouldn't be much happier with regard to achieving their own legislative goals inasmuch as they have them--then it is indeed necessary to start pulling at the thread of our constitutional system even at the risk of unravelling significant aspects of the status quo.

The peculiarity of FDR's situation is that he perceived himself, at least as of 1936-37, as having a compliant Congress that would pretty much follow his lead. He viewed the only impediment to achieving his program as the Supreme Court. Thus the Court-packing plan. We know now that he was living in something of a fool's paradise, that Congress was ready to break free of his reins and would do so after his disastrous attempt to "purge" recalcitrant Southerners in 1938, after which the New Deal was basically over. The next time the stars were aligned for significant change was 1964-66, a period that lasted even a shorter time than 1933-39.

So there may be a time when what appears to be "utopian" may actually be "realistic." Consider Mark's own list of
"questions of war and peace, economic reform, [and] environmental degradation." Isn't it more and more clear that our coming to grips with any of these may require fundamental constitutional reform? Or, perhaps things aren't so dire as Mark suggests with regard to our really having to choose. After all, our present reality is that there are no mainstream politicians--and no real popular political movement--willing to ask the kinds of questions about constitutional fundamentals that one found throughout the Progressive period. And it might be that the fear of opening up what some view as the Pandora's box of constitutional reform would lead to the making of certain compromises that are not on the table today. After all, the 17th Amendment finally got through the Senate in part because of a fear that enough states would call for a constitutional convention on the issue of popular election.

Can the American political system really not run and chew gum at the same time?

Comments:

"I think your suggestion is, Can we do two things at once? Well, we’re of the view that we can walk and chew gum at the same time."

—Richard Armitage, deputy secretary of state, on the wars in Afghanistan and Iraq, June 2, 2004 (Armitage announced his resignation on November 16, 2004.)

I'm not saying you're wrong, but I do have two problems with your statements. First, you're right that conservatives should be equally open to constitutional changes that allow more speedy reform. Consider that, as polled, the majority of Americans believe creationism should be taught in schools. Are you sure faster political reform is what we need? Second, running a government is never as easy as it looks (see quote from Richard Armitage above). There's no shame in taking baby steps towards a worthy goal.
 

I think it would be dreadful to teach creationism in public schools. That being said, I think it's even worse that millions of Americans remain without adequate medical care and that we seem unable to do anything about immigration and instead frustrate more and more people, on both the right and the left. So ultimately "we" will have to take the risk of getting some legislation we really don't like in return for the possibility of some real success with regard to legislation we do.

And, incidentally, I'm not at all clear that creationism would pass nationally, though it might in some states. The fact that a poll says X is not evidence for what people would believe if a given issue actually became a live possibility with some real debate on both sides.

I'm increasingly concerned that everyone is so risk averse that our "normal" condition is gridlock or symbolic programs (on left or right) that even supporters know will not be effective in meeting the problems that are allegedly being confronted.
 

Professor Levinson:

BUT, and here is where things get truly tricky, if one is also concerned about the way that the present constitutional system makes it difficult to achieve a whole bunch of programs--I am interested primarily in "progressive programs," but I have suggested that political conservatives shouldn't be much happier with regard to achieving their own legislative goals inasmuch as they have them--then it is indeed necessary to start pulling at the thread of our constitutional system even at the risk of unravelling significant aspects of the status quo.

I think you and Geoff misread us small government conservatives/libertarians. We share the same goals of the Founders in checking federal government power through the myriad checks and balances written into the Constitution. Indeed, the "do nothing" 2007 Congress where expansions of entitlement programs were blocked is what we would call a good Congress.

Mr. Bush's "big government" conservatism is not conservatism at all. Indeed, I have not seen a bigger government domestic program since Nixon completed the Great Society. The constitutional checks and balances can be somewhat overcome by single party control over the elected branches. Absolute power corrupts absolutely.

I would suggest that geoff is otherwise correct. Better that government proceeds incrementally by a super majority consensus rather than swinging radically back and forth based upon the changing of barest majorities.
 

If the existent system has any genius to it, it is the thwarting of all powers, special or hegemonic, at least in theory. An imperial presidency would strike the Founders just as anathema as "progressive" legislation like Mayors of NYC and SF. If we despise the Imperial President, why do we adore the Nanny State?

Neo-fascist Christians can falsely assert their dogmas, neo-conservative Jews can falsely assert their dogmas, and the ONE institution of our tripartite system that has proven itself illiberal again and again is neither the executive nor the legislative (the Senate a definite exception).

Again and again, nine jurists make decisions that have left the larger public scratching their heads. How does "equal protection" become "separate but equal?" Why are Articles IX and X of the Bill of Rights incessantly repudiated? How does one "find" a right to abortion, but not a right to grow cannabis for one's own use, as allowed by eight states? How does the loser of the 2000 election become president? How does habeas corpus reappear onto to disappear?

Given the sanctimonious nature of the Hallowed Nine and its abhorrent decisions as "final arbiter," it, not the other two branches, has done more to undermine the general will of a liberal democracy than any president of any Congress has dared? It lacks logic. Lacks understanding of language. And renders decisions incoherent and counter-intuitive to the masses, and lawyers believe the "problem" lies elsewhere?

On this blog, several writers have admired Richard Rorty, one even insisting he is among the top three philosophers of ALL TIME. It makes Bush's "Jesus Christ" as his favorite philosopher more sensible, and lawyers more pitiable. While one arm of the fourth estate chases ambulances, the other quarrels over Stokie and politically-correct speech on America's collegiate campuses?

Imagine if nominalism, consistency, and logic -- assuming three of the formal sciences -- were as vital as reading, writing, and arithmetic? We would not have had Bowers, Roe, Plessy, Raich, or New London. We would continue to HAVE BEEN a liberal democracy, however contorted, instead of a Majority of FIVE whimpy ideologues.

The Soviets and Kangaroo Courts must laugh at our judicial arrogance, and our hubris over dissecting the pictures on the wall, while ignoring the pink elephant in the center of the room.

As abysmal and undemocratic as the Senate and the Electoral College most certainly are, BOTH pale in comparison to FIVE OF NINE. FIVE.

The number is FIVE.
 

I think a relatively minor constitutional fix that could be undertaken is to abolish the vice-presidency.

It's not particularly partisan although it's clear that Cheney's term in office would be the motivating factor.

The act of trying to eliminate the VP through constitutional amendment would be educational and improve the knowledge of the workings of both Congress and the Executive.

Arthur Schleisenger Jr. wrote a short piece in The Atlantic in favor of abolishing the VP in 1974 so it's not a new concern.

http://www.theatlantic.com/doc/197405/schlesinger-vice-presidency
 

If there's to be an effort at Constitutional reform, I see no reason to waste that energy on minor issues like the VP. Bad as Cheney is, we're unlikely to see another soon. AFAIC, we should correct the mistake that Madison, Wilson, and others knew to be a mistake from the start: the malapportionment of the Senate. There's no point calling our country a "republic" as long as that inequity distorts the permanent and aggregate interests of the nation.
 

mark field - Any constitutional change beyond a small adjustment is bound to fail. The largest 9 states have more than 50% of the population. That means the easiest route to amendment in the Senate would still require the Senators from 24 states to vote against their selfish interest.

I think the 'Abolish the VP' amendment is a good start to awaken people all across the country to their rights and responsibilities with regards to maintaining the viability of the Constitution.

Taking the minor (not so minor if you think Cheney has exposed all manner of glitches with his Fourthbranch approach) step of eliminating the VP is a means of awakening the country to the POSSIBILITY of improving on things.
 

It's altogether possible that people's responses to polling questions don't represent their actual feelings. However, in the absence of evidence to the contrary, I'm inclined to take people at their word on their 1st amendment feelings. Whether or not they would support constitutional amendments to make this a reality, 70% of respondents said government officials should be allowed to post the Ten Commandments in government buildings. 47% believe the government should have more power to monitor Muslims than other religious groups.

The framers of the constitution were not gods, but they were spectacularly successful at passing protections of minorities (religious, ethnic, political, &c) that would not pass today. I'm not generally sensitive to slippery slope arguments, but there are a lot of people who believe in the separation of church and state, except for those pesky rules against teaching creationism or prayer in school or posting the Ten Commandments. If you take out those bricks, the church/state wall comes tumbling down.

I know there hasn't been a lot of progress lately (depending on your perspective that could be since Clinton, Earl Warren, or FDR), but there are worse things than political gridlock. We absolutely could be going backwards. If you want an example of what happens in more democratic rule making institutions, look at California's direct referendum. 3 Strikes and Prop 187 came out of California. It bears repeating: California! If that comes out of California, what could pass in the country as a whole?

You're right that an incompetent executive is a dangerous thing. We have elections. For democratic forces to protect you from an incompetent executive, the majority of the people have to agree that the president is incompetent. (See Presidential election of 2004.) I don't know what level of majority/supermajority you advocate for a vote of no-confidence, but if you want two-thirds, it doesn't exist for Bush now and if you want half, we'd have kicked Clinton to the curb over Lewinsky.

I support popular discussion of the constitution, but I think progressives (myself included) like to think that we could live in a utopia if only we could tweak the system just so. The rough truth is that it takes time to change the popular will. Americans aren't comfortable with men doing you know what with men and they're terrified that brown skinned people are going to take over the supermarkets. Someday gay and immigrant rights will be an accepted fact, but it's going to be a while and short of replacing our democracy with a philosopher king there's only so much we can do to push it along.

PS: Bart, when we say conservatives, we do not mean libertarians. For better or worse, the only person in government who is interested in small government in Ron Paul. The conservatives I refer to want government small only in the sense that it is small enough to fit in one's bedroom.
 

I'd settle for disposing of the electoral college, even though doing so would imply federal standards for elections, which I'm not sure about. And shortening the presidential term to three years while we're at it. As powerful and independant as the office has become, more frequent referendums seems in order, at the cost of odd-year elections.
 

I think the 'Abolish the VP' amendment is a good start to awaken people all across the country to their rights and responsibilities with regards to maintaining the viability of the Constitution.

I think there's limited energy for Constitutional change. As I said in Prof. Graber's thread, past changes (real ones, not tweaks) have come only when the nation has faced a real crisis. When those occur, people want to solve the problem and move on. It's not possible to sell them on sequential changes because the political attention moves on to other issues.

For example, after the Civil War the Republican party found itself having to go to the well repeatedly. First it was the 13th A which would fix all the problems caused by slavery. Then it was the 14th, then the 15th. They were able to do this only because they held the South out of the Union (a practice which we obviously can't repeat). Even so, by 1870, just 5 years after the war, the nation was done with Constitutional change and a backlash prevented actual enforcement of the new amendments.

If we're going to offer solutions to the country, we need to make sure that we get to the heart of the problem in the first try.

If you want an example of what happens in more democratic rule making institutions, look at California's direct referendum. 3 Strikes and Prop 187 came out of California. It bears repeating: California! If that comes out of California, what could pass in the country as a whole?

Those are bad policies, no doubt, but hardly the sorts of structural defects akin to the maladjusted Senate. Bad policy is a price of democracy. In the long run, though, we expect majority rule to settle on the permanent and aggregate interests (Madison's phrase) of the nation. That can't happen when the very structure of the Senate precludes a majority from being heard.

At least one of your examples provides a perfect test case. Prop. 187 was, in the long run, a great thing for CA. It made the Republicans the minority party here and it will remain so for a long time.
 

Your last comment about the 17th Amendment is inaccurate. I would suggest an number of writing by Professor Todd Zwicki, in which he explores the real reasons for the amendment. If you are interested, I have a number of scholarly articles posted on the right side of my weblog page, Repeal the 17th Amendment, which highlights the history and consequences of the amendment.

Regards,
BD
http://repealthe17thamendment.blogspot.com/
 

geoff rapoport said...

PS: Bart, when we say conservatives, we do not mean libertarians. For better or worse, the only person in government who is interested in small government in Ron Paul. The conservatives I refer to want government small only in the sense that it is small enough to fit in one's bedroom.

Economic libertarians/classical liberals make up a substantial part of the modern conservative coalition in the GOP.

Pew labels economic libertarians in the GOP as Enterprisers (my group) and those registered as Independents as Upbeats. (The difference between Enterprisers and Upbeats is that Upbeats think the government does a good job.) Together, we make up about 1/5 of the electorate and about 40% of those who end up voting GOP. Almost none of us vote for Dems.

Consequently, you cannot honestly discuss the modern conservative movement in the GOP without discussing economic libertarians.

The reason that Paul does so poorly among economic libertarian voters is not because he differs with us on economics and the size of government. We share Paul's positions on these issues.

Rather, the reason Paul does so poorly among economic libertarian voters is that we also support a muscular foreign policy while Paul is a Blame America First isolationist. The Libertarian Party's isolationism is why I left that party for the GOP. I am not alone in this migration.
 

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